Allan and Allan

[2013] FCCA 902

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALLAN & ALLAN [2013] FCCA 902

Catchwords:
FAMILY LAW – Property – Application for property settlement – contributions of the parties – whether Respondent’s contributions made more arduous by Applicant’s physical and verbal abuse throughout the marriage – long marriage – just and equitable – whether adjustment under Family Law Act 1975 (Cth) s.75(2) warranted.

Legislation:
Family Law Act 1975 (Cth), ss.75, 79, 106A

Cases cited:
Allan & Allan [2011] FMCAfam 704
Hickey & Hickey [2003] FamCA 395; (2003) 30 Fam LR 35; FLC 93-143
Stanford v Stanford [2012] HCA 52

Applicant: MR ALLAN

Respondent: MS ALLAN

File Number: SYC 3419 of 2010

Judgment of: Judge Scarlett

Hearing dates: 9 & 10 August, 19 November, 10 December 2012

Date of Last Submission: 13 March 2013

Delivered at: Sydney

Delivered on: 28 June 2013

REPRESENTATION

Counsel for the Applicant: Mr Johnston

Solicitors for the Applicant: Johnston Vaughan Solicitors

Counsel for the Respondent: Mr Ladopoulos

Solicitors for the Respondent: Theodore Solomon & Partners

ORDERS

1. Within three (3) months of the making of these orders the Respondent Wife is to pay to the Applicant husband’s solicitors on behalf of the Husband the sum of $225,000.00 by way of adjustment of property rights.

2. The Applicant must execute all documents and do all things necessary to transfer to the Respondent the whole of his right title and interest in the former matrimonial home situate at and known as Property C in the State of New South Wales and being the whole of the land in Certificate of Title Folio Identifier (omitted) immediately upon the Respondent having complied with Order (1) above.

3. Within twenty-one (21) days of the date of this Order the furniture and household contents of the former matrimonial home at Property C are to be divided between the parties as agreed or, failing agreement, in the following manner:

   (a)Within twenty-eight (28) days of the date of this Order the Applicant is to do all acts and things necessary to prepare two (2) lists of the furniture and household contents of the former matrimonial home at Property C as at 7 December 2009 and the furniture and household contents contained on each list are to be approximate in value to that contained on the other list;

   (b)The Respondent is to do all acts and things necessary to transfer to the Applicant her interest in the items contained on whichever of the above two lists the Respondent shall choose and the Applicant is to do all acts and things necessary to transfer to the Respondent his interest in the items contained on the other list;

   (c)The Respondent must make available for collection by the Applicant or any persons nominated by him all those items contained on whichever of the lists the Respondent chose in accordance with Order (3)(b) above at any reasonable time requested by the Applicant; and

   (d)Pending collection of the items by the Applicant the respondent must properly store and maintain those items.

4. EXCEPT AS THESE ORDERS PROVIDE TO THE CONTRARY:

   (a)The Applicant is solely entitled as against the Respondent to all other assets and resources presently in his possession or control including any superannuation benefits and any moneys held in bank accounts in his name; and

   (b)The Respondent is solely entitled as against the Applicant to all other assets and resources presently in her possession or control including any superannuation benefits and any moneys held in bank accounts in his name.

5. In the event that the Applicant refuses or neglects to execute deed or instrument necessary to give effect to all or any of these Orders the Registrar of the Court is appointed under section 106A of the Family Law Act 1975 to execute the deed or instrument in the name of the Applicant and to do all acts and things necessary to give validity and operation to the deed or instrument.

6. Written submissions in support of any application for costs are to be filed and served within twenty-eight (28) days of the date of these Orders and written submissions in opposition to any such application are to be filed and served within a further period of fourteen (14) days.  

IT IS NOTED that publication of this judgment under the pseudonym Allan & Allan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 3419 of 2010

MR ALLAN

Applicant

And

MS ALLAN

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Husband for orders for settlement of matrimonial property. The Applicant seeks orders that the parties should sell the former matrimonial home in Property C, New South Wales, and divide the net proceeds between them in the ratio of 55% to him and 45% to the Respondent wife.

2. The Respondent, however, seeks orders that she should be permitted to purchase the Husband’s share of the former matrimonial home so that she may continue to reside in it. 

Background

1. The parties are originally from (omitted).

2. The Applicant was born on (omitted) 1941. He is now 72 years old. The Respondent was born on (omitted) 1948. She is therefore 64 years and 10 months old.

3. The parties were married in (omitted) on (omitted) 1965. Their two children, X (known as X) and Y, were born in 1966 and 1970 respectively.  

4. The family emigrated to Australia on (omitted) 1970. The Applicant purchased the property at Property C in 1973 and built a large house there in 1980.   

5. The Applicant was injured in a motor vehicle accident in 1986. He received compensation for his injuries in the amount of $47,000.00.

6. On 18^th September 1990 the Applicant and Respondent entered into a deed of loan with their son Y in which they agreed to lend him a sum of money. Eventually a total of $170,000.00 was lent to him.

7. The Applicant suffered a work accident in 2000 in which he broke both wrists and one shoulder. He has been a pensioner since then.

8. The parties separated in 2003. They remained living under the one roof until 2009.

9. On 7^th December 2009 the Applicant was excluded from the matrimonial home by an Apprehended Domestic Violence Order.

10. The parties were divorced by order of this Court on 18^th November 2010.   

Litigation History

1. The Applicant commenced proceedings by filing an Application for property orders on 31^st May 2010. The Application was returnable on 12^th July 2010. The Respondent did not file her Response and supporting documents until 6^th September 2010.

2. On 13^th September 2010 the parties were directed to attend a Conciliation Conference with a Registrar of the Court. The conference took place on 24^th November 2010. The matter did not settle and it was referred back to the Court for mention on 7^th December 2010.

3. On 7^th December 2010 the Application was set down for final hearing on 22^nd and 23^rd June 2011.

4. The final hearing did not take place on 22^nd June, however. The hearing was adjourned with costs, as I found that:

   The Respondent has not prepared the case in such a way that the case can properly proceed.[1]

   [1] Allan & Allan  [2011] FMCAfam 704 at [8]

5. The parties agreed to appoint (omitted) as single experts to value the former matrimonial home at Property C and share the cost of the valuation equally.

6. On 10^th November 2011 the Application was again set down for final hearing, this time on 9^th and 10^th August 2012.

Evidence

1. There was an issue at the commencement of the hearing as to the admissibility of various affidavits going to the identification and value of real estate said to be owned by the Applicant in (country omitted).

2. The Applicant sought to rely on the affidavit of Mr T sworn 8^th August 2012. The Respondent sought to rely on the affidavits of:

   a)Ms P sworn or affirmed on 12^th May 2012; and

   b)Mr B sworn or affirmed on 7^th September 2011.

3. Counsel for the Applicant, Mr Johnson, objected to the affidavits of Ms P and Mr B on the basis of their expertise, or lack of expertise.

4. Ms P is a lawyer in (country omitted). She deposed that she hired another person, a surveyor named Mr L, to perform an accurate search of land ownership of the husband. Her affidavit was not pressed.

5. Mr B deposed that he is a (omitted) of (omitted) hired by Ms P to assess the value of the husband’s real estate in (country omitted). I found his affidavit to be inadmissible as an expert report.

6. The Respondent objected to the admissibility of the affidavit of Mr T, who gave his occupation in the first paragraph of his affidavit:

   I am a registered real estate valuer and I am known as (omitted) specialising in the value of real estate land in (country omitted).[2]

   [2] Affidavit of Mr T 8.8.2012 at paragraph [1]

7. His affidavit was admitted into evidence on the basis of his expertise as a valuer.

8. Annexed to Mr T’s affidavit was a valuation of certain items of real estate standing in the name of the husband. Mr T valued the five parcels of land at 18,321.227 Euro.

9. Apart from the affidavit of Mr T, the Applicant relied on the following affidavits:

   a)his own affidavits of 17^th August 2010, 10^th June 2011 and 26^th July 2012;

   b)Mr P sworn 15^th June 2011;

   c)Dr B of 16^th June 2011; and

   d)Dr T of 16^th June 2011.

10. Mr P’s evidence was interposed. He is a solicitor by profession. He deposed that in September 1990 he prepared a Deed of Loan for the Applicant and the Respondent in respect of an advance $170,000.00 they proposed lending to their son, Y. The parties attended his office on 18^th September 1990 and he witnessed their signatures. The deed is annexed to his affidavit.         

11. Mr P said in cross-examination that he had only a vague recollection of the circumstances of the making and the signing of the deed. He had the deed in his safe and presumed that it had remained there the whole time. He did say that he was contacted by the Legal Services Commission at one stage in response to a complaint by the parties’ son but he had no recollection of what had happened.

12. Dr B deposed that he is a general medical practitioner. The Applicant has been a long-term patient of his. Annexed to his affidavit was a medical report dated 22^nd November 2010 in which he stated that the Applicant was “not a well man.”

13. Dr B expressed the opinion that:

    a)the Applicant is clinically depressed;

    b)the Applicant has chronic thrombocytopaenia, chronic arthritis, recurring renal calculi, paroxysmal atrial fibrillation and chronic dyspepsia.

14. Dr B was not required for cross-examination.

15. Dr T deposed that he is a specialist orthopaedic surgeon. Dr B referred the Applicant to him in respect of pain in both knees. Dr T expressed the view that the Applicant required arthroscopy to his right knee and he was on the waiting list for surgery.

16. Dr T was not required for cross examination.

17. It was the applicant’s evidence that he worked as a (omitted) until 2000. He purchased the property at Property C in 1973 and paid off the mortgage within ten years. He renovated the house when he purchased it and in 1980 he started building a very large home on the property. The home cost about $100,000.00 to build and he did all the form work and bricklaying. He also painted the house himself.

18. The parties’ son started working with the Applicant as an apprentice in about 1986. The Applicant deposed that he received the sum of $47,000.00 as compensation for injuries he had received in a motor car payment. He lent that amount to the son so that he could purchase a home. He also paid further amounts taking the total to about $85,000.00. He annexed a copy of the deed recording the loans to the parties’ son which states that the son borrowed a total of $170,000.00 from the Respondent and himself.

19. He stated that the son had not repaid any of the money.

20. The Applicant deposed that the Respondent had been suffering poor medical health for a number of years. The parties’ daughter had applied to the Guardianship Tribunal for an order that the daughter should be appointed as legal guardian for her mother.

21. The Applicant stated that he and the Respondent had been separated under the one roof since 2003. He was obliged to leave the home on 7^th December 2009 when the Respondent obtained an Apprehended Violence Order against him. Whilst that AVO was later dismissed, the Respondent applied for a further AVO, which was also dismissed.

22. The Applicant further deposed that he owned some property in (country omitted) that he inherited, along with other family members. He denied the Respondent’s claim that he had sent money overseas to (country omitted) on occasions.

23. The Applicant stated that the Respondent did not work throughout the marriage. He was the sole income earner.

24. The Applicant referred in his affidavit of 10^th June 2011 to all his health problems and his need in the future for surgery and further medication.

25. In his affidavit of 26^th July 2012, the Applicant complained that the Respondent remained in possession of the former matrimonial home whilst he continued to pay $380.00 per week rent for a home unit. He had applied to Centrelink for rent assistance but was found to be illegible.

26. The Applicant was cross examined by counsel for the Respondent about allegations that he had been violent towards her during the marriage. He admitted that he had broken a coffee table on one occasion but said that it was because the Respondent had made him angry.

27. The Respondent relied on her affidavits of 6^th September 2010 and 9^th November 2011. She also relied on the affidavits of:

    a)The parties’ son Y sworn 7^th June 2011;

    b)Dr G sworn on 26^th August 2011;

    c)Dr R sworn 21^st July 2011; and

    d)Dr W sworn 23^rd August 2011.

28. It was the Respondent’s evidence that she and the Applicant separated on 7^th December 2009. They ceased living under the one roof on that date when the Applicant was served with an Apprehended Violence Order. The Application was dismissed on 16^th March 2010. However, her solicitor assisted her to apply for a further Apprehended Violence Order her on 19^th March 2010. The Application was heard on 3^rd August 2010 at Sutherland Local Court. The matter was resolved by way of undertakings by the Applicant that:

    a)He would not assault, molest, harass, threaten or otherwise interfere with the Respondent;

    b)He would not engage in any other conduct that intimidated her;

    c)He would not stalk her; and

    d)He would not enter the premises unless accompanied by the Police or by order of the Court or in accordance with the written agreement of the parties.

29. The Respondent deposed that the Applicant had told her he owned property in (country omitted). Throughout the parties’ married life the Applicant had sent money back to (country omitted).

30. The Respondent disputed the authenticity of the deed entered into between the Applicant, their son, and herself, saying “I say that this deed is false and that neither I nor my son signed this document or had such an agreement”.[3]

    [3] Affidavit of Ms Allan 6.9.2010 at paragraph [33]

31. The Respondent deposed that she had been in receipt of a disability pension for over ten years. She claimed that she contributed all of her income during the marriage for the benefit of the family

32. The Respondent deposed to a history of having been abused by the Applicant throughout the marriage:

    44.Throughout the marriage I suffered continued physical and verbal abuse from Mr Allan.

    (a) I was assaulted and struck by him with various items including his hands, and fists, kicked, spat on and verbally abused.

    (b) I was hit with bottles, belts, rolling pins, broom handle, power cord, threatened with axe, knife, meat cleavers and with pieces of furniture.

    (c)This abuse has happened throughout my entire married life.[4]

    [4] Affidavit of Ms Allan at [44]

33. The Respondent deposed that she wished to continue living in the Property C property.

34. In her later affidavit the Respondent referred to the costs order made on 22^nd June 2011 and complained that the Applicant’s solicitors were pursuing her for the costs, including threatening her with bankruptcy.

35. The Respondent deposed that she was prepared to make items of furniture available to the Applicant.

36. The Respondent was extensively cross-examined by counsel for the Applicant. She denied that she had ever attended the office of the solicitor, Mr P, to sign the deed. She denied that the signature on the document was hers or that she had ever seen it.

37. The Respondent reiterated her wish to remain living in the former matrimonial home, although she said that it was in very poor condition.

38. The Respondent maintained under cross-examination that she had been abused by the Applicant throughout the marriage. She was confused and tearful throughout her evidence, which was at times contradictory and irrelevant. It was clear that giving her evidence was a very emotional experience for the Respondent.

39. The parties’ son Y deposed in his affidavit of 7^th June 2011 that he had lived with his parents in the former matrimonial home from when he was about three or four years old until about May or June 1990, when he left to get married.

40. Y’s evidence was that on many occasions he had witnessed his father subjecting his mother to “physical, mental and emotional abuse”.[5]  He deposed that he had seen his father throw beer bottles at his mother whilst he and his sister were huddled in the kitchen against the cupboards. He also described his father breaking a coffee table after an argument with his mother about his sending money overseas and not leaving enough money for the family.

    [5] Affidavit of Y 7.6.2011 at paragraph [9]

41. Other instances of abuse described in his affidavit were:

    a)his father kicking his mother on the head;

    b)his father throwing his mother onto a coffee table as a result of which she sustained a serious back injury requiring admission to hospital;

    c)his father striking his mother with plastic bottles; and

    d)his father throwing his mother across the living room, as a result of which she broke her ankle.

42. Y was cross-examined about these allegations of violence towards his mother. He was very firm about the violence he claimed to have witnessed and was unshaken in cross-examination.

43. He also denied signing the deed at Mr P’s office and he denied receiving an amount of $170,000.00.  

44. Dr G is a Neurologist and an Associate Professor of Medicine. He deposed that the Respondent had been a long standing patient of his practice. Annexed to his affidavit are copies of reports about the Respondent dated:

    a)18^th February 2010;

    b)15^th July 2010; and

    c)18^th August 2010.  

45. Dr G described in his reports how he had been treating the Respondent for over twenty years for persistent neck pain and headache which originally resulted from a neck injury. In each of his reports Dr G has described the Respondent’s reports to him of “domestic difficulties”[6], “longstanding difficulty with domestic stress”[7] and:

    [6] Report 18 August 2010

    [7] Report 15 July 2010

    She has longstanding mixed cervicogenic headache and neck and shoulder pain for many years, undoubtedly aggravated by her longstanding domestic stress. For at least 10 years there has been major domestic abuse. She first revealed this to me in 2001 and since then she has stoically tolerated a difficult home situation.

    There has now been some support with a Restraining Order, but the emotional distress continues.

    I have no doubt that this contributes to her major fluctuations in blood pressure, impaired diabetic control and difficulty with her weight control.[8]

    [8] Report 18 February 2010.

46. Dr G was not required for cross-examination.

47. Dr R is a consultant physician. He deposed in his affidavit of 21^st July 2011 that the Respondent had been a long standing patient of his practice. Annexed to his affidavit was a report dated 19^th July 2011 in which he set out the results of the Respondent’s routine diabetic review. He opined that the results indicated “persistent unsatisfactory diabetic control”.

1. Dr R reported that the Respondent was “receiving high doses of insulin three times/day without gaining satisfactory diabetic control.” She was also taking four medications to help control her blood pressure. Dr R stated:

   I believe that both the diabetes and hypertension control would be much better once the chronic stress was relieved by a satisfactory divorce settlement.[9]

   [9] Report 19 July 2011

2. Dr R was not required for cross-examination.

3. Dr W is a Cardiologist/Angiologist and he deposed that the Respondent had been a long standing patient of his practice. Annexed to his affidavit is a report dated 21^st July 2011.

4. In that report Dr W set out the results of tests such as blood pressure, weight and ECG. He also reported that the Respondent had told him:

   Her English is not perfect, but I gathered from what she said that her husband used to go back home to (country omitted) every second year and he would give all the money to his brother and their children for education and also too much to the mosque. She felt unhappy that he did not provide money for her children for education. She also thought that her mother-in-law did not like her and did not try to help. She then commenced to cry.[10]

   [10] Report 21 July 2011

5. Dr W was not required for cross-examination.

6. The Applicant gave evidence in reply. He agreed that he owned some land in (country omitted). He was shown a photograph of a building on the land which he said was destroyed in the war in (country omitted).

7. The parties had agreed to a joint valuation. This was provided by Mr D in his affidavit of 13^th September 2011.

8. Mr D is a registered valuer. Annexed to his affidavit of 13^th September 2011 is a valuation of the property at Property C. Mr D valued the property at $925,000.00.

Submissions

1. Both parties filed written submissions.

2. Counsel for the Applicant, Mr Johnston, submitted that the court would find the Applicant to be a fairly responsive witness who was able to make frank admissions when necessary. He submitted that the Applicant was not shaken in cross-examination and the court would find his evidence far preferable to that of the Respondent.

3. Referring to an incident that occurred in Court on 10^th December 2012, Mr Johnston submitted:

   The husband made an emotional outburst on 10 December 2012 in which he accused the wife’s counsel of lying. This was mot unfortunate however such outburst should not be seen to affect the credibility of his evidence.[11]

   [11] Husband’s Final Submissions page 2 paragraph 7

4. There was no evidence that counsel for the Respondent was lying at any time during the proceedings.

5. Mr Johnston submitted that the Court should not place a high value on the Respondent’s evidence, submitting that her displays of emotion were contrived in an attempt to impress the Court. It was submitted that the Respondent’s evidence was wanting in several areas:

   a)Her denial that she had ever attended Mr P’s office to sign the loan agreement;

   b)Her evidence about the disposal of the Applicant’s belongings;

   c)Her evidence about her medical history;

   d)Her evidence about land in (country omitted) which she had inherited but said that she had given to her brother;

   e)Her evidence about the date of separation in 2003;

   f)Her claim that the Applicant had equity in the Mosque at (omitted);

   g)Her claim that the Applicant never assisted her in the home; and

   h)Her honesty about her current bank accounts.

6. Counsel for the Applicant submitted that the Court would have no difficulty in dismissing the evidence of the parties’ son Y for the reasons that:

   a)He had embellished the extent of his mother’s injuries; and

   b)His denial that he attended Mr P’s office and signed the loan agreement.

7. It was submitted that the Court should adopt a two pool basis in respect of the property by isolating the Applicant’s land in (country omitted). As for that land, the Court should accept the Applicant’s evidence of its value rather than that of the Respondent.

8. The Respondent had submitted an affidavit of one Ms M affirmed on 6^th December 2012, translating a report by Ms T, giving a valuation of various parcels of land in (country omitted) at a total of 46,098 Euro. However, it was submitted that the Court would prefer the evidence of the Applicant’s expert over the Respondent’s expert.

9. Counsel for the Applicant submitted that the contribution based entitlements favour the Applicant 55:45 as to the Australian asset pool and 100% as to the (country omitted) asset pool. In addition, the Respondent has had the benefit of exclusive occupation of the former matrimonial home.

10. It was further submitted that as both parties are pensioners and both have health issues, no adjustment is justified under s.75(2) of the Family Law Act 1975 (Cth).

11. Counsel for the Respondent, Mr Ladopoulos, submitted that his client had contributed during the marriage:

    a)as a parent;

    b)as homemaker;

    c)by assisting the Applicant in his (omitted) business;

    d)by assisting the Applicant in carrying out improvements to the former matrimonial home; and

    e)by her earnings from paid employment and disability pension.

12. He also submitted that the Respondent’s contributions were made more arduous as a consequence of the physical and emotional abuse perpetrated against her by the Applicant throughout the duration of the marriage.

13. Mr Ladopoulos submitted also that throughout the marriage the Applicant had expended matrimonial funds:

    a)for the benefit of member of his extended family in (country omitted); and

    b)for the benefit of the (omitted) Society in (omitted).

14. This expenditure was against the wishes of the Respondent and the funds so expended would otherwise have formed part of the pool of matrimonial assets.

15. It was further submitted that the only area of the Respondent’s case which was challenged in any substantial way was the issue of whether the Applicant’s contributions were made more arduous as a consequence of the abuse perpetrated against her by the Applicant. The Court ought to prefer the evidence of the Respondent because:

    ·Whilst the Respondent might be described as “an excitable, largely uneducated woman who has difficulty expressing herself clearly”, her evidence about being subject to a lifetime of abuse was consistent and she showed genuine distress when required to recount the incidents of abuse perpetrated against her.

    ·Her assertion of abuse was corroborated by the evidence of her son.

    ·The Court observed the Applicant’s outburst in open court on 10^th December 2012, which was characteristic of and exemplifies the Applicant’s explosive temperament.

    ·The Applicant admitted having broken a table, which is further evidence of his explosive, violent nature.

16. Mr Ladopoulos submitted that the Court should accept the evidence of the Respondent’s expert as to the valuation of the property in (country omitted). The methodology used by Ms T, the Respondent’s expert, was sound, in that she clearly set out which parcels of land that she had valued. The extent that there are discrepancies between the parcels of land valued by the experts, the Court could conclude that the discrepancies from the Applicant’s valuer, Mr T, not having valued all of the Applicant’s landholdings.

17. Further, Counsel for the Applicant could, through cross-examination of the Respondent’s expert, have clarified the reason for the discrepancies and exposed any flaws or errors in the list of landholdings valued by the Respondent’s expert. However, it was not sought to cross-examine the expert and the consequences of not cross-examining a witness are well known.

18. Counsel for the Respondent submitted that the Respondent should be entitled to receive 55% of the property on a contribution basis. Further, there should be an adjustment of 10% in her favour under s.75(2)(o) because, throughout the duration of the marriage, the Applicant expended matrimonial funds for the benefit of his extended family in (country omitted) and the (omitted) Society, against the wishes of the Respondent. Had he not done so, those funds would have otherwise formed part of the matrimonial asset pool.

The proper approach to determination of a property application

1. The way a court approaches the determination of property matters under s.79 of the Family Law Act has been set out by the Full Court of the Family Court in Hickey & Hickey[12]. In that decision, the Full court held at [39] that the approach involved four inter-related steps:

   Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties…and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters…including…the matters referred to in s. 75(2) so far as they are relevant…Fourthly, the Court should …resolve what order is just and equitable in all the circumstances of the case.[13]

   [12] [2003] FamCA 395; (2003) 30 Fam LR 35; FLC 93-143

   [13] [2003] FamCA 395; (2003) 30 Fam LR 35; FLC 93-143 at [39] per Nicholson CJ, Ellis & O’Ryan JJ

2. The Court should also have regard to the decision of the High Court in Stanford v Stanford[14], where the majority (French CJ, Hayne, Kiefel and Bell JJ) set out the way a court hearing a property application should deal with the requirement in subsection 79(2) of the Act that prescribes:

   The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

   [14] [2012] HCA 52

3. Their Honours held that there are three fundamental propositions:

   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. So much follows from the text of s. 79(1)(a) itself, which refers to “altering the interests of the parties to the marriage in the property (emphasis added)…

   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…

   …

   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).[15]

   [15] Stanford v Stanford [2012] HCA 52 at [37]-[38] & [40]

4. Clearly, the decision in Stanford means that the Court must consider the requirements of s.79(2) before embarking on the four-step process set out in Hickey[16], or at least before taking the second step, identifying and assessing the contributions of the parties. In other words, satisfaction that it is “just and equitable” to make an order is a condition precedent to considering the matters referred to in s.79(4). First, the Court must be satisfied that it is just and equitable to make an order at all.

   [16] supra

5. It would follow that the Court must consider whether it is just and equitable to make a particular order when the Court is considering “what order (if any) should be made” under s.79. Thus, the requirements of s.79(2) must again be borne in mind, in my view, after the Court has undertaken the third step in the process, as the Full Court held in Hickey.

Just and Equitable

1. Applying the decision of the High Court in Stanford, the first matter to be considered is whether it is just and equitable to make an order under s.79 at all. In my view, it is just and equitable because the parties have been separated for ten years and they are now divorced. The title to the former matrimonial home is in the sole name of the Applicant.

2. There is a need to make such orders as will finally determine the financial relationship between the parties and avoid further proceedings between them (see Family Law Act, s.81).

The Parties’ Property and Liabilities

1. I am not satisfied that the Court should take the view that there are two asset pools, one consisting of the assets in Australia and the other consisting of the Applicant’s property in (country omitted).

2. The agreed value of the former matrimonial home at Property C is $900,000.00. It is unencumbered by a mortgage.

3. The Applicant gave evidence that when the parties separated under the one roof in 2003 they divided the amounts of money held in term deposits equally between themselves. They each received about $35,000.00.

4. The Applicant gave evidence in cross-examination that he had expended an amount of $20,000.00 on legal fees. Mr Ladopoulos submitted, correctly in my view, that this amount should be added back into the asset pool.

5. As to the value of the Applicant’s property in (country omitted), it was submitted on behalf of the Respondent that the value by the Respondent’s valuer of 46,099.00 Euro should be accepted. This amounts to the sum of $60,280.00.

6. I prefer the Respondent’s evidence of value to that of the Applicant, because the evidence of the Respondent’s valuer is more up to date. It also appears that Ms T made more comprehensive inquiries about the extent of the Applicant’s landholdings in (country omitted).

7. Accordingly, I find the parties’ assets to be:

   a)The former matrimonial home at Property C            $900,000.00

   b)Furniture and household contents  $   30,000.00

   c)Applicant's (omitted) bank account  $      2,985.00

   d)Legal fees added back  $   20,000.00

   e)Applicant's Toyota (omitted)  $      4,000.00

   f)Respondent’s (omitted) Bank account                          $   21,000.00

g)Applicant’s property in (country omitted)                $   60,280.00

TOTAL  $1,038,265.00

1. The parties did not disclose any liabilities.

2. The parties did not disclose any superannuation interests.

3. The value of the matrimonial asset pool stands at $1,038, 265.00.

The Parties’ Contributions

1. Counsel for the Applicant submitted that the contribution based entitlements favour the Applicant 55:45 as to the asset pool consisting of the assets in Australia by virtual of his initial financial contribution and the moneys received from his personal injuries claims. It was also submitted that the contributions by the Applicant to the assets in (country omitted) should be assessed at 100%.

2. Mr Johnston also pointed out that the Respondent has had the exclusive occupation of the former matrimonial home since 7^th December 2009 whilst the Applicant has been paying rent over that time.

3. Counsel for the Wife submits, correctly in my view, that the contributions in respect of the assets should be assessed as favouring the Respondent as to 55% over 45% to the Applicant.

4. The reasons for this submission are that during the marriage, a period of 38 years from 1965 to 2003, the Respondent contributed:

   a)As a parent, taking care of the two children of the marriage;

   b)As a homemaker, performing all household duties without assistance from the Applicant;

   c)By assisting the Applicant in his (omitted) business, including performing (omitted) tasks;

   d)By assisting the Applicant with the improvements to the former matrimonial home, again performing (omitted) tasks;

   e)By her earnings from paid employment and her disability pension, towards the payment of mortgages, groceries, household expenses and outgoings relating to the former matrimonial home; and

   f)Her contributions were made more arduous as a consequence of the physical and emotional abuse perpetrated against her by the Applicant throughout the marriage.

5. It was further submitted that since the separation the Respondent contributed:

   a)by maintaining the former matrimonial home, including arranging and paying for necessary repairs; and

   b)by paying all outgoings relating to the former matrimonial home.

6. Clearly, the Respondent’s claim to a contribution greater than 50% over such a long period of time rests heavily on her assertion that her task was made more arduous by persistent abuse consisting of physical violence and verbal abuse by the Applicant. He, of course, denied it, although he made the extraordinary admission that he may at one stage broken a coffee table. He managed to blame that on the Respondent, saying that it because she had made him angry. It must have been a severe anger to provoke such behaviour.

7. The Respondent’s evidence was that the Applicant had perpetrated violent abuse on her for many years. She was at times a difficult witness, tearful and confused, venturing off into irrelevance and, at times, contradictory statements. However, accepting that she is a woman without a great deal of education who had difficulty expressing herself, her evidence had the ring of truth to it. She is a woman who has struggled with health problems, some of which appear to have been exacerbated by her husband’s behaviour towards her.

8. The Respondent did not appear to be person with the sophistication, let alone the cunning, to manufacture over a lengthy period of time a claim of persistent abuse by her husband.

9. The Respondent’s account of violence was corroborated by the evidence of her son, who gave graphic evidence in chief of a number of serious assaults on his mother dating back to when he and his sister were little. He was not shaken in cross-examination and gave firm, confident evidence about the abuse he said he had witnessed.

10. The evidence of Dr G, which was unchallenged by cross-examination, was that the Respondent had been giving as history to him since 2001 of abuse by her husband.  He expressed the view that the Respondent’s emotional distress aggravated her symptoms of hypertension and impaired control of her diabetes and her weight.

11. Whilst Dr G was not in a position to give first hand evidence of any abuse inflicted upon his patient, relying on the history she provided to him, the evidence of complaint from as long ago as 2001 helps to support the Respondent’s account.

12. Finally, Mr Ladopoulos submitted that the Court should draw an inference from the Applicant’s outburst in court on 10^th December 2012, which was directed mainly at him, it might be noted, and which was entirely unprovoked. The ferocity of his outburst was quite remarkable. He accused Mr Ladopoulos of lying, for what reason remains unclear. As it was submitted, the Applicant was in court, at a time when he would be expected to keep his emotions in check, and yet he was unable to do so.

13. The Applicant did not assist his cause in the slightest by his behaviour; quite the reverse, in fact.

14. In my view, greater weight should be given to the Respondent’s evidence that she had to endure a lengthy period of physical and verbal abuse from a husband who could not keep his emotions under any sort of control.

15. I find that the contributions favour the Respondent by 55% to 45% to the Applicant.

Other Factors taken into account under subsection 79(4)(d) to (g)

1. Paragraph (d) of subsection 79(4) requires the Court to take into account the effect of any proposed order on the working capacity of either party. There does not appear to be any effect on the working capacity of either party.

2. Paragraph (e) of subsection 79(4) requires the Court to take into account the matters referred to in subsection 75(2) of the Act so far as they are relevant.

3. The Applicant was born on (omitted) 1941. He is 72 years old. He is not in good health.

4. The Respondent was born on (omitted) 1948. She is 64 years old. She is not in good health, either.

1. Neither party is in employment.

2. Neither party has the care and control of a child of the marriage who is under the age of 18 years. Their children are adults.

3. Neither party has any commitment to support anyone other than themselves.

4. Both parties are in receipt of a pension.

5. Neither party has any entitlement to any superannuation fund.

6. The parties have been separated under the one roof since 2003 and the Applicant moved out of the home, as he was obliged to do, on 7^th December 2009. The Applicant’s standard of living has declined, as he has been living in rented accommodation. The Respondent has remained in the former matrimonial home, and wishes to go on living there.

7. Neither party is cohabiting with any other person.

8. Neither party is required to pay child support.

9. Counsel for the Respondent has submitted that the Court can take into account, under paragraph 75(2)(o), that throughout the marriage the Applicant expended matrimonial funds that otherwise would have been available to the parties, by sending money to his extended family in (country omitted) or by paying money for the benefit of the (omitted) Society.

10. I propose to accede to that submission. There is evidence from Y that his parents argued about his father’s practice in expending the matrimonial funds in this way, which would at times lead to violence or verbal abuse directed at his mother.

11. I agree with the submission that there should be an adjustment of 10% in favour of the Respondent.

12. Thus, the matrimonial asset pool should be divided as to 65% to the Respondent and 35% to the Applicant.

13. The Applicant will therefore be entitled to receive 35% of $1,038,265.00, amounting to $363,393.00 in round figures. He will therefore receive:

    a)Half of the parties’ furniture and household contents  $15,000.00

    b)Applicant’s bank account   $   2,985.00

    c)Legal fees added back  $20,000.00

    d)Toyota (omitted)  $ 4,000.00

e)Property in (country omitted)                         $60,280.00

Total  $102,265.00

1. There needs to be an adjustment in the Applicant’s favour if the Respondent wishes to retain the former matrimonial home.

Just and Equitable

1. The Court must consider whether it is satisfied that, in all the circumstances, it is just and equitable to make the order. The Respondent wishes to remain living in the former matrimonial home. It is unlikely, given her age and her financial situation, that she would be able to buy another house. In my view, after a lengthy and unhappy marriage, it is just and equitable for the Respondent to go on living in the house that has been her home.

2. As her counsel submits, the Respondent will need to pay the Applicant the sum of $225,000.00 by way of adjustment of property rights. I am satisfied that this is just and equitable and will order accordingly. 

I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  23 July 2013