ANISON & ANISON
[2018] FamCA 113
•28 February 2018
FAMILY COURT OF AUSTRALIA
| ANISON & ANISON | [2018] FamCA 113 |
| FAMILY LAW – PROPERTY – 13 year relationship – where the parties were retired at the commencement of the relationship – where the husband made the overwhelming financial contributions, primarily in the form of inheritances – where the husband asserts he owes a significant debt to his son – non-financial contributions – where the wife made significant non-financial contributions – where the husband contends that it is just and equitable that each party retain the property currently owned by each respectively – where the wife seeks orders for an equal division of the parties’ property FAMILY LAW – PROPERTY – SPOUSE MAINTENANCE – where the wife seeks ongoing spousal maintenance – whether the wife is unable to adequately support herself after receipt of her entitlement to property as found |
| Family Law Act 1975 (Cth) |
| AM v KAO [2006] FamCA 734 Crapp and Crapp (No 2) (1979) FLC 90-615 Hepworth v Hepworth (1963) 110 CLR 309 Waters & Jurek (1995) FLC 92-635 |
| APPLICANT: | Ms Anison |
| RESPONDENT: | Mr Anison |
| FILE NUMBER: | BRC | 1827 | of | 2013 |
| DATE DELIVERED: | 28 February 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 17 and 18 March 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Gould |
| SOLICITOR FOR THE APPLICANT: | Wiltshire Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Hackett |
| SOLICITOR FOR THE RESPONDENT: | Evans & Co Family Lawyers |
Orders
IT IS ORDERED BY WAY OF FINAL ORDER THAT
All previous orders, other than those by which any party was ordered to pay costs, are discharged.
Within ninety (90) days of the date of this Order, the Respondent pay to the Applicant the sum of $233,550.00.
The Applicant retain as her own property absolutely all other property in her possession or under her control including motor vehicles, bank accounts, any shareholdings, boat and accessories, furniture and chattels.
The Respondent retain as his own property absolutely all other property in his possession or under his control including motor vehicles, bank accounts, furniture and chattels.
Each party sign all relevant documents and do all necessary things to give effect or to transfer property to the entitled party in accordance with this Order within seven (7) days of a written request to do so.
Should either party fail to sign any documents necessary to implement this Order, a Registrar of the Court is appointed pursuant to s 106A(1) of the Family Law Act 1975 (Cth) to sign any such document in lieu of the non-signing party.
The Respondent pay the sum of $500.00 per week directly to the Applicant for her maintenance, with such payments to be made weekly by direct deposit into a bank account nominated by the wife, until payment to her by him of the sum referred to in Clause 2 of this Order.
All extant Applications other than any relating to costs are dismissed.
AND IT IS FURTHER ORDERED THAT
In the event that any party seeks an order that the other party pay his or her costs:
(a)if thought necessary by a party, that party has leave to file a further affidavit by that party containing any evidence relevant to the issue of costs and one other affidavit in support of the same provided that such affidavits are filed within twenty-eight (28) days of the date of this Order; and
(b)any such party shall file and serve any written submissions in support of such application for costs within twenty-eight (28) days of today; and
(c)the party against whom an order for costs is sought shall, within a further fourteen (14) days thereafter, file and serve any brief written submissions in answer to the submissions filed and served by the party seeking costs; and
(d)the party seeking an order for costs shall file and serve any brief further written submissions within seven (7) days of its service, strictly in reply to the submissions served by the party against whom an order for costs is sought,
and any such application for costs shall be considered in Chambers.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Anison & Anison has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 1827 of 2013
| Ms Anison |
Applicant
And
| Mr Anison |
Respondent
REASONS FOR JUDGMENT[1]
[1]I commence these Reasons with a sincere apology to the parties for the significant delay in the finalisation of this matter. I assure them that, in determining the outstanding applications for property settlement orders and spousal maintenance, I have had particular regard to the extensive contemporaneous notes I took during the hearing, extracts of the transcripts of the proceedings, all of the evidence (including the affidavit material and the exhibits) and the contents of the parties’ respective summaries of argument, however described.
The husband was born in 1933 and is currently 84 years of age. The wife was born in 1937 and is currently 80 years of age. They commenced their relationship in or about April 1999. They commenced cohabitation by no later than January 2000, at which time the husband was 66 years of age and the wife was 62 years of age. They married in 2008 and separated on a final basis in about March 2013. Thus, their cohabitation persisted for approximately 13 years.
Overview of the proposals
The husband proposes orders be made which would see each of the parties retain the property in their respective names. It is said this is just and equitable because the wife has already had the benefit of approximately $133,000.00 from joint funds which she held at separation. Such a result would see, on his case, the wife receive property worth approximately 17 per cent of the nett value of the assets of the parties, as contended for by him.[2]
[2] Summary of Argument filed on behalf of the husband on 4 March 2016 at [3].
The wife advances that orders which are just and equitable are those which will see her receive a cash payment in an amount which would see her receive 50 per cent of the value of the nett property of the parties. She also seeks orders for the payment of capitalised spousal maintenance (calculated from either 4 December 2013, 24 February 2014 or 28 April 2014) and the payment of periodic spousal maintenance in an amount of $500.00 per week. Whilst this was initially sought for a period of two years, Counsel who appeared for her ultimately submitted that the circumstances of this case are such that the Court would be persuaded to make an indefinite order for the payment of spousal maintenance in such amount.
Before considering the substantive relief sought, it is appropriate that I deal generally with the wife’s complaints about the manner in which the husband approached his disclosure obligation.
Disclosure
The wife’s affidavits contained a number of assertions that, as a consequence of the husband’s failure to disclosure relevant financial documents, she was unable, at various times, to ascertain matters like his current income, payments he received from the C Trust (and the value of any additional benefits associated with these), capital withdrawals from the Trust, the financial position of the self-managed superannuation fund from which he drew his pension, the quantum of the husband’s pension payments made by the superannuation fund, the quantum of any director’s fees, allowances or reimbursements paid to him by the Trust.
However, it seems that, late on 28 January 2016, a tranche of emails to which were attached a significant number of financial and other relevant documents, were received by her solicitor from the husband’s solicitors.
Further, during her cross-examination, the wife conceded that the husband had disclosed all of his income tax returns for the years to June 2015 and, when she was asked what further information she required him to disclose, she was unable to identify any particular information.
Counsel for wife ultimately submitted that the husband’s disclosure during the proceedings was not at a level that was “appropriate”. In support of this overarching submission he made reference to the fact that the wife had been presented with several years’ worth of Trust documents on the day before the trial started and had only been provided (electronically) with a huge volume of financial documents on the day before she was required to sign her trial affidavit so that it could be filed in compliance with the trial directions. He submitted that, during his cross-examination, the husband conceded he had not done much by way of disclosure and had drip-fed information to the wife.
Counsel submitted that, given this, the Court would not be persuaded to approach its assessment of the wife’s financial position at trial on the basis that she should have had more funds available than she did (because a large amount of those funds had been spent on her lawyers).
I am not persuaded that the wife has discharged the onus of establishing the type of deliberate non-disclosure of relevant material that is required to be established to enliven the application of the principle enunciated in cases like In the Marriage of Weir.[3]
[3] (1993) FLC 92-338.
That I have arrived at this conclusion should not be regarded as an endorsement of any practice of disclosing financial and other relevant documents late or other than in a timely manner. As is made clear by the Rules, the obligation to disclose is an ongoing one.
Property settlement proceedings
As authority[4] makes clear, it is appropriate to determine the property settlement proceedings before determining the wife’s application for spousal maintenance. It further seems to me to be appropriate that the application for the payment of capitalised spousal maintenance is also then determined before the resolution of the application for the payment of spousal maintenance on an indefinite basis.
[4] Clauson and Clauson (1995) FLC 92-595 at p.81,907.
The manner in which the Court is to approach proceedings for property settlement is well known[5] and requires no further elucidation.
[5]See, for example : Pastrikos & Pastrikos (1980) FLC 90-897; Lee Steere & Lee Steere (1985) FLC 91-626; Ferraro & Ferraro (1993) FLC 92-335; Waters & Jurek (1995) FLC 92-635; Clauson and Clauson (1995) FLC 92-595, Hickey & Hickey (2003) FLC 93-143 and Stanford & Stanford (2012) 247 CLR 108.
I consider that the parties’ voluntary separation some years ago has meant that they no longer enjoy the common use of property and superannuation in which they have existing legal and equitable interests. Such separation has also brought to an end any “assumption that any adjustment to those interests could be effected consensually as needed or desired”.[6] In the circumstances, I am satisfied that it is just and equitable to make an order under s 79(1) of the Family Law Act (1975).
[6] Stanford and Stanford (2012) 247 CLR 108, [42].
The property of the parties
The property of the parties and its asserted value as suggested by each of them is as outlined below:[7]
[7] See the joint balance sheet provided by the parties during the course of the hearing.
| Description | Wife’s value | Husband’s value | ||
| Assets | ||||
| 1. | H | L Street, Suburb M | $1,075,000.00 | $1,075,000.00[8] |
| 2. | H | Cash at bank | $4,548.00 | $4,548.00 |
| 3. | H | 4WD motor vehicle | $2,000.00 | $2,000.00 |
| 4. | H | German motor vehicle | $28,450.00 | $0.00 |
| 5. | H | Household furniture and contents | $11,225.00 | $11,225.00 |
| 6 | H | Shares | $57,328.00 | $57,328.00 |
| 7. | W | Cash at bank | $1,650.00 | $1,650.00 |
| 8. | W | Suncorp shares | $14,573.00 | $14,573.00 |
| 9. | W | Hybrid motor vehicle | $13,300.00 | $13,300.00 |
| 10. | W | Jewellery | $4,790.00 | $4,790.00 |
| 11. | W | Household furniture and contents | $0.00 | Nk |
| Total | $1,212,864.00 | $1,184,414.00 | ||
| Addbacks | ||||
| 12. | W | Prepaid legal fees (inclusive of $20,000.00 paid to her by the husband pursuant to the Order made 6 November 2015) | $120,553.00 | $120,553.00 |
| 13. | H | Prepaid legal fees | $110,893.00 | $110,893.00 |
| Total | $231,446.00 | $231,446.00 | ||
| Liabilities | ||||
| 14. | H | Debt to Mr D Anison | $0.00 | $222,021.00 |
| Total | $0.00 | $222,021.00 | ||
| Superannuation | ||||
| 15. | H | Self-managed superannuation fund | $310,435.00 | $310,435.00 |
| Total | $310,435.00 | $310,435.00 | ||
| Financial Resources | ||||
| 16. | H | C Trust (it is not accepted that the Trust in fact represents a financial resource to the husband) | Nk | $0.00 |
| Nett assets | $1,754,745.00 | $1,504,274.00 | ||
[8]Previously contended as being $1,025,000.00 however, agreed after leave was granted to the Applicant to file and rely upon the affidavit of Mr Q and after conferral between Mr Q and Mr R, the jointly appointed single expert.
Item 4: the German motor vehicle
It became apparent during the course of the husband’s cross-examination that his son, Mr D Anison, had purchased a German motor vehicle which was subsequently registered in the husband’s sole name so that a relevant registration discount could be obtained.
By virtue of this evidence, I am not persuaded that the car is the property of the husband. Consequently, I decline to include it in the calculation of the total nett value of the property of the parties.
Mr D Anison made it clear during the course of his evidence that he had no intention to call in the loan of this vehicle to his father while he is alive. In the circumstances where the car will be available for the husband’s use, his ability to use it seems to me to be in the nature of a financial resource[9] to him, albeit one which is not quantified in monetary terms.
[9]In the sense that it is a source of financial support which he can reasonably expect will be available to him to supply a financial need or deficiency: Kelly and Kelly (No 2) (1981) FLC 91-108 at 76,806; Crapp and Crapp (No.2) (1979) FLC 90-615.
Item 12: the wife’s prepaid legal fees
The parties jointly include an amount of $120,553.00 as being money already paid by the wife to her legal representatives. This figure does not appear to be borne out on any evidence before the Court. The costs disclosure letter handed up to the Court at the commencement of the hearing and dated 16 March 2016 (the day before the final hearing) indicates that the wife has expended $117,696.41 on prepaid legal costs. It is not clear where the remaining $2,856.60 is derived from.
Further, according to her affidavit, the wife has paid her solicitors the amount of $119,705.55, sourced as follows:
a)$23,100.00[10] from the sale of shares; and
b)$76,605.55 from the $100,000.00 of joint funds held by her not long after separation; and
c)$20,000.00 which she received from the husband, for use in meeting her litigation costs, as a consequence of the order made on 6 November 2015.
[10]$15,400.00 of this being paid to forensic accountants and $7,700.00 of this being paid to Queen’s Counsel.
Despite these slight discrepancies, given that the parties were agreed in the amount to be taken into account as having been spent by the wife at trial on these proceedings, I have included the agreed figure for the purpose of determining the nett value of the property of the parties.
Item 14: the Husband’s asserted debt to his son, Mr D Anison
The husband said that, in or about 2007, in the context of the Federal Government introducing certain tax concessions to self-managed superannuation funds, he borrowed the sum of $200,000.00 from his son, Mr D Anison.[11]
[11] Affidavit of Mr Anison filed 29 January 2016 at [83].
Minutes of a meeting of the Trustee’s Board of Directors for the C Trust held on 15 June 2007 relevantly provide that, upon consideration of a report by Mr F on “how the trust and its beneficiaries may obtain maximum benefit from the recent changes to superannuation legislation” it was resolved[12] that Mr D Anison would draw his capital units to the value of $550,000.00, of which:
[12] Affidavit of Mr D Anison filed 29 January 2016 at Annexure B.
a)$200,000.00 was to be loaned to the husband and placed as an un-deducted contribution in the G Superannuation Fund, to be repaid with interest at a rate of 7.75 per cent per annum as follows:
(a) One hundred “B” Class income units are to be created by the trust with a value of $1.00, the units to be held by Mr D Anison;
(b) The trustee, at its absolute discretion, can allocate the income of the trust to either A or B Class unit holder, in whole or in any proportion;
(c) Until the loan, including any interest owing is extinguished, all income of the trust is to be directed to the B Class units in order to repay the loan;
(d) In the event of the death of Mr Anison before the loan is repaid, the amount owing is to be repaid to the trust as a priority debt.
b)$200,000.00 was placed in the superannuation fund of Mr E and the same was to be offset by reducing his director’s fee by an amount of 7.75 per cent.
This loan was subsequently reduced to writing in a loan agreement, although this was never signed.
That agreement provides in its entirety:
THIS AGREEMENT made this day of 2007 between [Mr D Anison] of [N Street, O Town] Queensland … (hereinafter referred to as “the Lender”), and [Mr Anison] of [L Street, Suburb M] Queensland … (hereinafter referred to as “the Borrower”).
RECITES:
1.The Lender has lent to the Borrower the sum of $200,000.00 as at 18 June, 2007.
2.The Lender and the Borrower wish to evidence the terms and conditions of the borrowing as expressed herein.
AND WITNESSES
1.The sum of $200,000.00 lent by the Lender to the Borrower and any additions thereto less any repayments therefrom, (which net sum is hereinafter referred to as the “the Loan”), is acknowledged by the Borrower to be due and payable to the Lender pursuant to the terms as set out herein.
2.The loan shall bear simple interest at 7.75 per cent per annum, but it is acknowledged by the Borrower that should the Lender deem it in its’ interests to impose a higher interest rate then the Lender may, by notice in writing to the Borrower, impose an interest rate at no greater than the prevailing benchmark interest rate for Division 7A purposes (published annually in a Tax Determination by the Australian Tax Office), to be effective from the serving of the notice.
3.The Loan is not a loan at call and will be deemed repaid by the following mechanism:
a)One hundred $1 “B” Class income units are to be created by the [C Trust], each with no voting rights or rights to returns of capital.
b)Until the loan (including any interest owed) is extinguished, all distributions of income from the [C Trust] are to be paid to the Lender to the exclusion of the Borrower (who holds “A” Class income units). This arrangement is subject to the ongoing approval of the trustee company.
4.The balance of the loan (including interest accrued) will become immediately repayable by the Borrower’s Estate to the Lender in the event of the Borrower’s death.
The husband deposited the sum of $200,000.00 into the G Superannuation Fund in the 2006/2007 financial year. In addition to the $200,000.00 borrowed in or about 2007, the husband borrowed a further $2,706.00 in June 2012 to meet expenses relating to motor vehicle repairs. He asserts that these borrowings and the interest said to be payable on them should properly be reflected in determining the nett value of the property of the parties in these proceedings.
In opposing this contention, the wife contends that the liability to Mr D Anison does not exist and/or has been fabricated by the husband to reduce the assets of the marriage and divert income to which the husband was formerly entitled away from the marriage.[13] Alternatively, she contends that, if the Court finds the loan to Mr D Anison does in fact exist, the Court ought to be persuaded that it has in fact been repaid by the distribution of income from the Trust to Mr D Anison. She asserts that, by the end of the financial year ending 30 June 2008, Mr D Anison had received $230,742.48 by way of income distribution from the Trust – an amount which was $15,242.00 more than the value of the loan at this same time.[14]
[13] Affidavit of Ms Anison filed 29 January 2016 at [447].
[14] Affidavit of Ms Anison filed 29 January 2016 at [454].
The amount of money asserted to be owed by the husband to his son, Mr D Anison, varied throughout the course of the proceedings. Initially, the husband asserted he owed Mr D Anison the sum of $391,740.00[15] consequent on the monies lent to him for contribution to his self-managed superannuation fund. This position was maintained until after the commencement of the trial, at which point the amount said to be owed was contended to be $222,021.00.[16]
[15]Husband’s Summary of Argument document filed 19 February 2016; Affidavit of Mr Anison filed 29 January 2016, at [15]; Affidavit of Mr D Anison filed 29 January 2016 at [21]; Financial Statement filed on behalf of Mr Anison on 29 January 2016 at Item 50.
[16] Exhibit 17.
Mr D Anison said he maintained a schedule by which he records those monies owed to him by his father. He initially asserted that, as at March 2016, he was owed about $391,000.00 by his father. A number of things are apparent from a consideration of the schedule. It is evident that, in it, Mr D Anison recorded interest compounding at monthly intervals from August 2007, despite the terms of the agreement clearly stipulating that interest be by way of simple interest.
It was not suggested by anyone that there had been any agreement between the husband and Mr D Anison to vary the interest component of the asserted loan.
When it was suggested to Mr D Anison during his cross-examination that his evidence that, as at 1 February 2016, he was owed approximately $391,000.00 by his father was “nonsense” he said that it was a calculation he believed to be true. He explained that he had calculated the amount owing on the basis that the interest component should be compound interest because he was previously of the understanding that that was the case; it was only when Counsel for his father showed him a document (which I infer was the “Agreement” itself) that he realised the interest component should be simple interest: that is, he only realised his error when his father’s Counsel pointed it out to him at lunchtime on the first day of the hearing.
That Mr D Anison, an accountant, held this view about the terms of the unsigned and undated “Agreement” in reliance on which he and the husband asserted that funds were owed by the husband to him persuades me to conclude that it is highly unlikely that either considered themselves bound by it. I am strengthened in this conclusion by Mr D Anison’s acceptance of the proposition put to him by Counsel for the wife to the effect that, if he had read the “Agreement”, he would not have set up the spreadsheet he used from the date the funds were provided to his father (in 2007) to perform a compound interest calculation which resulted in an asserted indebtedness by his father to him of about $391,000.00.
It was also apparent that the schedule maintained by Mr D Anison in which he asserted that his father owed him about $391,000.00 did not account for any money he had been paid as a consequence of distributions made to him by reason of his holding Class B income units pursuant to the loan agreement. During his cross-examination, he accepted that the failure to account for income he received from 2008 onwards was a further way in which his initial calculation was wrong. He accepted that this was the case despite knowing that, from 2008 onward, he had received the income from the trust in lieu of his father.
Upon these irregularities being brought to the attention of the Court, a further schedule of monies alleged to be owed by the husband to Mr D Anison was prepared.[17] It was this document by which it was contended that, as at July 2015, the husband owed Mr D Anison the amount of $222,021.00. This document purported to account for simple interest and also to take account of certain repayments.
[17]Exhibit 17.
The Income and Distribution History records of the C Trust[18] record that the following nett profit was allocated to Mr D Anison in the years following the loan agreement:
a)$230,742.00 in 2008; and
b)$11,671.00 in 2009; and
c)$36,817.00 in 2010; and
d)$12,159.00 in 2011.
[18] Exhibit 13.
Similarly, the Financial Statement of the C Trust for the Financial Year ending 30 June 2008 revealed that the sum of $230,742.48 was distributed to Mr D Anison in that financial year. However, reference to Exhibit 17, records that the husband’s liability to Mr D Anison was only reduced by $17,452.00 during that year.
The following occurred when Mr D Anison was challenged about why this was the case:
MR GOULD: All right. You will see, for the 2008 year – and I assume that’s the financial year ended 30 June 2008. There is a description of nett profit of $230,000? --- Yes.
And the attribution of that to a beneficiary, of [D. Anison]; that would be yourself? ---Yes.
Wouldn’t that wipe out the loan? --- No.
Why not? --- When we moved to the income unit, for me, my accountant advised me that the most effective way of going from a taxation ..... was to move from the PAYG tax system, that the directors ..... paid under, and to be paid as – out of the – what do they call it? The – sorry, your Honour. I’ve forgotten the word. The – out of the – out of the thing at the end of the year. I will think of it in a few minutes. Did that for a few reasons. The – or two reasons, mainly. The – when one is paid by PAYG, one obviously pays one’s tax as you go. When one pays at the end of the period, the tax doesn’t fall due until such time as the taxation return has been placed with the tax office – which is the 15th of May, in the year following the end of the financial year. So from a – purely, from a cashflow viewpoint, my accountant recommended to me that I be paid by way of – whatever that word is. And that would not only enhance my cashflow, it would be advantageous from a tax position – and I took my accountant’s advice.
And, you say, has the consequence of not being income, of the type described in the loan agreement, that might reduce the amount owing by your father to yourself; is that your evidence? ---Yes.
It’s very ‑ ‑ ‑? --- Sorry. Would you say that again? I just ---
Yes. The income received by you, in the way you’ve just described, would be not – what is called in clause 3(b) of the alleged loan agreement. Distributions of income from the [C Trust], that are to be paid to the lender, to the exclusion of the borrower; is that right? --- Sorry. I’m not following you, there. Sorry. I’m sorry.
All right. Sir, I’m suggesting to you that if you’re seeking to rely on the loan agreement and – do you say that that loan agreement is a legitimate one and the court should take notice of it? --- Yes. I believe so. Yes.
…
Mr GOULD: Do you recall signing it? No. I don’t.
You don’t have a signed copy, I take it? No. I don’t.
Might it be a draft, that was never executed by either yourself or your father? That may well be possible. Yes.
…….
Mr GOULD: You received $230,000 from the trust, but somehow that wasn’t offset against the moneys said to be owing by your father? Yes. That’s my understanding. Yes. …
Mr GOULD: How could that be? Regardless of the advice you got from the accountant, about tax, consequences, etcetera, etcetera, how could it be that $230,000 is received, by you, from the trust, but somehow it doesn’t fall under category 3 – clause 3(b), in reduction of the amount owing by your father? ---Well, I would consider the – of the 230,000, the first object of it, as ..... my accountant, is to extinguish the debt of the director’s fees, to me. Then if there was any residual, according to this document, quite rightly, it should go off my father’s loan.
Right. And do you know if any of that has gone off your father’s loan, as it were? ---Well, we haven’t recalculated the loan. The only thing you’ve got is this – the spreadsheet, showing ....
Well, sir, I think you recalculated the loan yesterday, didn’t you? Yes. That – we haven’t
Right. You haven’t taken into account ..... ? Haven’t taken ..... no.
230,000; I take it? No.
And elsewhere:
Or, you would accept, qualified as you are, that, on the face of that document, you were entitled to receive $230,000? --- I would accept that.
You would accept, one way or another, it could be your money? ---Yes.
Thank you. And, if that’s right, that would be, surely, in reduction of any amount owing by your father, pursuant to clause 3(b) of the alleged loan agreement; wouldn’t it? ---Yes.
So if the [F] – if exhibit 13, the [F Group] document, is right, it might be that you owe your father money? --- It’s possible. Yes.
………
MR GOULD: If the loan is two ten – two thirty has been received in that year. I will deal with the other years. If you still have exhibit 13 in front of you, sir ---? ---Yes. I do.
‑ ‑ ‑ you will follow, for the years two – 30 June 2009, 10 and 11. Again, under the heading: Nett Profit of the Trust. There’s another – roughly, $60,000, there, in those three financial years; isn’t there? And, again, you either received it or were entitled to receive it? --- Correct.
And, again, if 3(b) of the loan agreement is right, it should be deducted from any amount owing to ‑ ‑ ‑? --- Correct.
So it might be that – 60,000 and two thirty is two ninety. Your calculation, without regard to this, is two ten. It might be you owe your father $80,000? --- It may well be.
Well, sir, you’re the accountant around here. Would you accept that, more likely than not, that’s correct? --- Not without looking at all the taxation figures, to see how much I am, indeed, owed, by the trust, for my director’s fees.
Well, you’re now distinguishing between what you’re entitled to receive – or, perhaps, actually received. And what you pay tax on; are you? ---That’s my understanding.
Right. 3(b) doesn’t talk about – the loan agreement doesn’t talk about what you pay tax on, does it? It talks about income distributed? --- No. It doesn’t. That’s correct.
Having regard to the variability of the quantum of the amount alleged to be owed by the husband to Mr D Anison (as referred to above) and to the evidence given by Mr D Anison (including that which is set out above), I am not persuaded that the husband has discharged the evidentiary onus of establishing that, as at the date of the trial, he owed any money to Mr D Anison at all. For this reason, I decline to deduct the amount contended for by the husband from the total value of the property of the parties.
As a consequence of the findings about Items 3, 12 and 14 in the Table at paragraph 15, I find that the property of the parties (inclusive of superannuation interests) and its value, as at the date of trial is as follows:
Description Value 1. H L Street, Suburb M $1,075,000.00 2. H Cash at bank $4,548.00 3. H 4WD motor vehicle $2,000.00 4. H Household furniture and contents $11,225.00 5. H Shares $57,328.00 6. W Cash at bank $1,650.00 7. W Suncorp shares $14,573.00 8. W Hybrid motor vehicle $13,300.00 9. W Jewellery $4,790.00 10. W Household furniture and contents $0.00 Total $1,184,414.00 11. W Prepaid legal fees $120,553.00 12. H Prepaid legal fees $110,893.00 Total $231,446.00 Total (inclusive of already paid legal fees) $1,415,860.00 13. H Self-managed superannuation fund $310,435.00 Total $310,435.00 Total (inclusive of superannuation entitlements) $1,726,295.00
Given the evidence given by Mr D Anison, it was submitted on behalf of the wife that the amount of $80,000.00 should be added into the quantification of the total value of the property of the parties to take into account the possibility that Mr D Anison in fact owes the husband that sum. Whilst this submission was initially superficially attractive, I have concluded that the evidence is not such as to persuade me to reach a definitive conclusion that Mr D Anison in fact owed his father the amount of $80,000.00 as at the trial. Consequently, I decline to add to the property of the parties the amount of $80,000.00.
However, I record that Mr D Anison’s evidence about this issue (in part as set out earlier) was such as to persuade me to conclude that there was a certain degree of permeability in the manner in which the husband and Mr D Anison approached the management and use of funds between them. This fluidity was such that, in the event that I am wrong in the conclusions I have reached about the issue of the asserted indebtedness of the husband to Mr D Anison, I am easily persuaded that it is appropriate in the circumstances to not take into account any unsecured liability found to be owed by the husband to Mr D Anison because the quantum of the same is uncertain and repayment of whatever might be considered by others to be owing is unlikely to be enforced by Mr D Anison: in fact, his evidence was that he would not require his father to pay him any money during his lifetime.
The parties’ post separation receipt and disposal of assets
The husband says[19] that, at or immediately prior to separation, his property included bank deposits totalling $130,000.00, shares valued at $116,900.00, three motor vehicles with a total value of approximately $37,000.00 and a boat.
[19] Affidavit of Mr Anison filed 29 January 2016 at [94].
His evidence is that he sold a motor vehicle for $15,000.00 and applied the proceeds of sale to meeting his legal expenses.[20] He also sold the boat for $25,000.00: he used about $6,400.00 of this amount to pay for a new pool fence and to replace a fence on the property and applied the balance to meeting his legal fees. He said he also sold “several parcels” of shares to meet the interim property settlement order which required him to pay to the wife the sum of $20,000.00. Whilst it was not entirely clear on his material whether he sold only $20,000.00 “worth” of shares or whether he disposed of more and applied the balance of such sale proceeds to living and other expenses,[21] I have proceeded on the basis that the difference in the value of the shares as at separation and at trial has arisen because the sale proceeds of the same have been used to meet living expenses and/or litigation expenses.
[20] Affidavit of Mr Anison filed 29 January 2016 at [118].
[21] Affidavit of Mr Anison filed 29 January 2016 at [120].
The parties agree that upon separation the wife removed the sum of $100,000.00 from the parties’ joint account.[22] As a consequence, when this sum was combined with savings she held in her account, she had approximately $133,000.00 available to her shortly after separation. I accept her evidence that she used these funds to meet her legal fees (in the amount of $76,605.55) and living expenses.[23]
[22] Affidavit of Mr Anison filed 29 January 2016 at [99].
[23] Affidavit of Ms Anison filed 29 January 2016 at [575].
The s 79(4) considerations
In considering the relevant matters mandated by s 79 of the Act, I note that:
a)“community of ownership arising from marriage has no place in the common law”;[24] and
b)there is no presumption of equality of contribution between parties to a marriage, irrespective of the length of their union;[25] and
c)the exercise of the discretion conferred must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity.[26]
[24]Stanford and Stanford (2012) 247 CLR 108 at [39] citing Hepworth v Hepworth (1963) 110 CLR 309 at 317 per Windeyer J.
[25] Mallet v Mallet (1984) 156 CLR 605.
[26] Bevan & Bevan (2013) FLC 93-454 at [73].
The financial contributions of the parties
Whilst the husband disputed the same,[27] I accept that, at the commencement of the parties’ cohabitation, the wife had property valued at about $88,000.00. I accept her account that this consisted of:
a)cash held at bank of $60,000.00; and
b)Suncorp shares worth approximately $10,000.00; and
c)a motor vehicle worth approximately $8,000.00; and
d)furniture and household chattels worth approximately $10,000.00.
[27] Affidavit of Mr Anison filed 29 January 2016 at [47].
The wife acknowledged that she had not disclosed any documents to corroborate her evidence about the cash at bank. She explained that she did not have any bank account documents going back to late 1999 or thereabouts to disclose. I accept her evidence in this respect. I also accept her evidence that the cash at bank represented the combination of her life savings, accumulated after 40 years of employment, and the balance of the approximately $90,000.00 she inherited from her late mother in about 1991.
I also accept the wife’s evidence that she sold the car referred to above for about $4,000.00 in about 1999. It seems much more likely than not that she applied these funds to her support and, in part at least, for the enjoyment of herself and the husband.
The parties were in dispute about what property the husband had at the commencement of their relationship and subsequent cohabitation and the value of the same at those times. For example, the wife asserted[28] that he had property valued at no more than about $50,000.00 (which consisted of term deposits totalling $40,000.00, a motor vehicle worth about $3,000.00 and either a caravan or the sale proceeds of the same in an amount of about $6,000.00) whereas he asserted[29] that he had approximately $110,000.00 at bank, a vehicle and a caravan.
[28] Affidavit of Ms Anison filed 29 January 2016 at [353] – [355].
[29] Affidavit of Mr Anison filed 29 January 2016 at [22].
If the wife’s account is correct, the total value of the property of both of them as at the commencement of their relationship was about $133,000.00; if the husband’s account is correct, the total value of the property of both of them as at the commencement of their relationship was no less than about $198,000.00.
However, resolution of this dispute does not seem to me to be necessary to determine those orders which are just and equitable in the circumstances of this case because it is clear on all of the evidence that:
a)when his father died on 10 November 1998, the husband inherited half of his estate;[30] and
b)when his brother died on 21 May 1999, the husband inherited all of his estate[31] – which included his brother’s interest in their late father’s estate; such that
c)by late May 1999, the husband had inherited (or become entitled to inherit) property valued totalling “just over $8 million” (according to the husband[32] or $9,040,355.00 (according to the wife)[33] or about $9.6 million (according to the submissions made on his behalf).
[30] In an amount of about $1,750,000.00.
[31] Save for relatively minor bequests.
[32] Affidavit of Mr Anison filed 29 January 2016 at [22].
[33] Affidavit of Ms Anison filed 29 January 2016 at [159].
Given when the husband became entitled to receive that which he inherited, it is clear that it could not be concluded that the wife made any contribution to the same. Whether the property was inherited shortly before, or within a few months of, cohabitation makes no difference to the ultimate conclusion that the husband was responsible for the overwhelming majority of the property of the parties.
In order to appreciate how it is that the property of the parties amenable to this proceeding is as I have found it to be (with the value I have found it to have), it is necessary to briefly outline what happened after the husband received his inheritances.
Between about December 1999 and 31 May 2000, the husband gave $1,000,000.00 to each of his two adult children. In the financial year ending 30 June 2001, he contributed $1,000,000.00 of his inheritances to his self-managed superannuation fund.[34] On 31 May 2000 – either about six months or about four months after the husband and wife commenced their cohabitation – the C Trust (the Trust)[35] was established. The husband gave his son, Mr D Anison, the sum of $4,000,000.00 on condition that Mr D use this sum to purchase units in the Trust. No capital other than this $4,000,000.00 was provided to, or applied by, the Trust. These funds formed the corpus of the Trust.
[34] Affidavit of Mr Anison filed 29 January 2016 at Annexure A.
[35] A discretionary trust.
Given these actions, it seems to me to be appropriate to regard the wife’s financial contribution as being a contribution of property valued at about $88,000.00 when compared to the value of the property retained by the husband after these dispositions in which she had no say. To do otherwise would, in my view, diminish the relativity of the wife’s contributions in a manner that is unjust to her.
On or about 3 December 1999, the husband used some of his inheritance to purchase real property located at P Street, G Town for approximately $502,000.00 (plus purchase costs).[36] Whether, as the wife contends,[37] he initially borrowed funds which he then repaid using inherited funds does not seem to me to matter much. What is clear is that the wife made no financial contribution at all to the purchase of this property.
[36] Affidavit of Mr Anison filed 29 January 2016 at [41] and [28].
[37] Affidavit of Ms Anison filed 29 January 2016 at [60].
The parties subsequently commenced cohabitation at the P Street property.[38] I accept the wife’s general assertion that, when the parties moved to live in this property, she brought her furniture, whitegoods and household chattels with her.[39] I also accept that, when these items were later sold, the proceeds of sale were deposited into the husband’s account.[40]
[38] Affidavit of Mr Anison filed 29 January 2016 at [44].
[39] Affidavit of Ms Anison filed 29 January 2016 at [363] –[364].
[40] Affidavit of Ms Anison filed 29 January 2016 at [365].
It seems that, a couple of months after the P Street property was bought, the husband purchased an adjacent piece of vacant land. Whilst he does not particularise the amount that was paid, he says he spent approximately $200,000.00 on improvements (including repairs to the plumbing on the vacant block, installing a driveway and extensive landscaping work) to the properties.[41]
[41] Affidavit of Mr Anison filed 29 January 2016 at [28] and [55].
On 1 May 2002, the husband purchased real property at L Street, Suburb M. This property became the parties’ matrimonial home.[42] The Suburb M property was purchased with the assistance of a bridging loan pending the sale of the P Street property. The bridging loan was wholly discharged upon the settlement of the sale of the P Street properties,[43] which were sold as a single block on 25 June 2002, for $1,250,000.00.[44]
[42] Affidavit of Mr Anison filed 29 January 2016 at [58].
[43] Affidavit of Mr Anison filed 29 January 2016 at [58] – [59].
[44] Affidavit of Mr Anison filed 29 January 2016 at [56].
The parties did some renovations to the Suburb M property before they moved to live there. The husband said they spent about $150,000.00 on these renovations.[45]
[45] Affidavit of Mr Anison filed 29 January 2016 at [60].
Neither the husband nor the wife worked during the course of their relationship.
However these were paid (for example, by the drawing of funds from the husband’s superannuation fund or by the husband’s receipt of income distributions from the C Trust until 2007), the vast majority of the parties’ financial needs and obligations were met using money the husband inherited.
The wife continued to receive Centrelink payments until April 2007. At that time, she told Centrelink of the existence of the parties’ relationship and refunded a backdated overpayment.[46] I accept the general tenor of her evidence to the effect that, during the time she continued to receive Centrelink payments after the parties commenced cohabitation, she applied these funds toward meeting some joint living expenses[47] and to paying her own personal expenses, (such as medical insurance, pharmaceuticals, clothing, cosmetics and personal care expenses) and her travel expenses.[48]
[46] Affidavit of Ms Anison filed 29 January 2016 at [373].
[47] Affidavit of Ms Anison filed 29 January 2016 at [370].
[48] Affidavit of Ms Anison filed 29 January 2016 at [380].
I accept that, when the parties married in 2008, the husband caused joint bank accounts, to which the wife had access, to be opened. I also accept that, before the parties married, they did not operate a joint bank account.[49]
[49] Affidavit of Ms Anison filed 29 January 2016 at [414].
It seems more likely than not that, throughout the course of the parties’ relationship, they acquired a number of chattels using funds which were sourced from the husband’s inheritances. These chattels included:[50]
a)a prestige motor vehicle, valued at $150,000.00; and
b)several other motor vehicles including the Hybrid currently in the wife’s possession; and
c)a 4WD motor vehicle; and
d)a boat (bought for $50,000.00); and
e)furniture, chattels and artwork (bought for approximately $65,000.00).
[50] Affidavit of Mr Anison filed 29 January 2016 at [80].
In addition, the husband says that he loaned money to the wife’s children from a previous relationship, some $2,300.00 of which remains outstanding.[51] Given the value of the property of the parties, it is understandable that no submissions were specifically directed to this issue.
[51] Affidavit of Mr Anison filed 29 January 2016 at [81].
I accept, as the wife did, that she acquired some of the Suncorp shares she sold after separation during the parties’ cohabitation. I also accept her assertion that she bought these (however many that was) using her “own money”. However, it seems to me to be inescapable that it is much more likely than not that she was only able to do this because of the financial support she received from the husband during their cohabitation.
It is clear that the husband provided the overwhelming majority of the financial resources used to support the parties financially during their approximately 13 year cohabitation and marriage. It is also clear that only funds inherited by him were used to acquire the home in which the parties lived.
Contributions other than financial contributions to acquisition, conservation or improvement of property and contributions to the welfare of the family, including in the capacity of homemaker
It is accepted that the parties engaged a cleaner to assist with the housework on a weekly basis.[52]
[52] Affidavit of Ms Anison filed 29 January 2016 at [477].
Whilst the husband contends that he and the wife shared the household tasks, I accept and prefer her evidence to the effect that she made the “vast majority” of the non-financial contributions during the parties’ relationship. I accept she undertook the significant majority of the meal preparation, general cleaning and organising, potted plant gardening, dog washing, household provisioning and laundry.[53]
[53] Affidavit of Ms Anison filed 29 January 2016 at [473] – [474].
I also accept that, as a consequence of the husband’s ill health, the wife also made significant contributions to the maintenance, conservation and improvement of the property by doing tasks like high pressure hosing outdoor areas, washing cars and outdoor areas, and seasonally scrubbing the boat.[54]
[54] Affidavit of Ms Anison filed 29 January 2016 at [475].
Where the evidence of the husband and the wife differs about the extent of his alleged support to her during any period during their cohabitation in which she suffered from ill-health, I prefer the evidence of the wife to the husband. I do so because I accept the general thrust of the submissions made by Counsel for the wife about the manner in which I should assess the credit of each of the parties.
I also accept that, on occasions when the husband’s health was problematic (as a consequence of him suffering from the conditions referred to below), the wife undertook an additional role in caring for him (and the house) during periods of incapacitation.[55] I accept her evidence that, during their cohabitation, she “looked after” the husband. I also accept that his health and associated issues made such assistance and “looking after” more difficult than it might otherwise have been. In such circumstances, I consider that the real value of this “looking after” contribution to the husband should not be under-estimated or under-valued, particularly given his evidence about the likely cost to him of obtaining the assistance of an in-house carer or nurse in the future.
[55] Affidavit of Ms Anison filed 29 January 2016 at [491] –[511].
Conclusions as to the contributions made by each party: s 79(4)(a) – (c)
It is well established that the task of assessing contributions under s 79 of the Act is an holistic one in which the Court is required is to evaluate the extent of the contributions of all types made by each of the parties in the context of their particular relationship:[56] such an evaluation cannot be treated as a mathematical exercise, but inevitably involves value judgements and matters of impression.[57]
[56] Dickons & Dickons (2012) 50 Fam LR 244.
[57] Lovine & Connor and Anor (2012) FLC 93-515 at [40] and [41].
Further, in assessing the contributions made by the parties, the Court embarks upon a process involving the exercise of a broad discretion in respect of which reasonable minds may differ. This process is neither an accounting or mathematical exercise, but involves a movement from “a qualitative evaluation of contributions to a quantitative reflection of such evaluation” – that is, a “leap” from words to figures.
It is clearly established that the husband made the overwhelming financial contributions to the acquisition, conservation and improvement of the property of the parties during their cohabitation and marriage. However, I am persuaded that, during this period, as well as her contribution of the property I have found her to have had at the commencement of this time (which amounted to much, much less than 5 per cent of the entirety of the inheritances the husband then received but which equates[58] to about 5 per cent of the nett value of the property the object of these proceedings), the wife made some non-financial contributions to the conservation of the property, made an overwhelming contribution to the welfare of the family as constituted by the two of them and also made the overwhelming contribution in the capacity of homemaker. Such contribution must be assessed not in any “merely token way” but in terms of its ‘true worth’.[59]
[58] As Counsel for the Husband submitted was at best for the wife.
[59] Mallet and Mallet (1984) 156 CLR 605.
The support that the wife provided the husband, which I accept to have been as she describes it to have been, was real and must be given real recognition. As the husband conceded, in essence, during his cross-examination, since the parties’ separation, he has needed to go into a rehabilitation facility at times to obtain the sort of assistance and support that, during the relationship, the wife provided to him on occasions. Given the husband’s various ailments and health issues, I consider such support and assistance highly likely to have been particularly useful, helpful and, therefore, a very significant contribution to him.
However, even taking such contributions properly into account does not persuade of a conclusion of equality of contributions. Without the inheritances received by the husband, the parties’ property would likely have been very modest. This reality cannot be overlooked, nor can the overwhelming nature of his financial contributions be unduly diminished.
Doing the best that I can to weigh all of the various contributions of various sorts made by each of the parties during their thirteen year marriage and after separation and to accord to them appropriate recognition, I consider that a quantification of contributions to trial as to 87.5 per cent to the husband and 12.5 per cent to the wife is just and equitable between the parties.
The assessment of contributions in this manner results in the husband having to receive property valued at $1,510,508.12 and the wife property valued at $215,786.88; it also results in a disparity in the parties’ respective financial positions in favour of the husband in an amount of about $1,294,721.24 which, I consider, appropriately reflects his overwhelming financial contributions to the property of the parties.
In the circumstances of this case, any order which may be made will not have any effect on the earning capacity of either party.
Relevant s 75(2) considerations
The husband and wife are 84 and 80 years of age respectively. They are both retired and not engaged in paid employment. Neither has any capacity to earn income through engagement in paid employment in the future.
The husband lives in the five bedroom waterfront former matrimonial home. The wife lives in rented accommodation.
The husband suffers from a number of health conditions including:[60]
a)myocardial ischemia which, as a consequence of lack of blood flow, causes him to have frequent (approximately three times weekly) spells of dizziness, muffled hearing and blurred vision; and
b)chronic obstruction pulmonary disease which results in asthma, bronchitis and eczema and which on occasion results in episodes of difficulty breathing; and
c)joint and muscle pain as a consequence of having numerous operations on various joints.
[60] Affidavit of Mr Anison filed 29 January 2016 at [125].
He says that his health conditions are managed by prescription medication. While he says he can foresee a time when he may require additional assistance to care for himself and the property, his evidence was that he intended to remain in the home for as long as possible.[61] He has investigated the likely financial impost if he were to engage the services of an in-home nurse or carer and understands these costs to be about $45.00 per hour.[62]
[61] Affidavit of Mr Anison filed 29 January 2016 at [128-130].
[62] Affidavit of Mr Anison filed 29 January 2016 at [134].
The husband’s Financial Statement outlines that he receives pension payments in an amount of $1,500.00 per week from his interest in a self-managed superannuation fund. He also receives $137.00 per week from Centrelink and $10.00 per week by way of dividend receipts. Whilst his expenditure, according to the Financial Statement, was said to be a total of $1,647.00 per week (albeit that Part N of the same was not completed), the husband’s evidence was to the effect that his all up expenditure per week was about $1,000.00.
The wife disputes this and contended that, due to the husband’s failure to provide adequate disclosure, she has been unable to verify his assertions in relation to his income. She appeared to suggest that the husband minimised his income by decreasing the amount of his pension payments: she cites, by way of example, that, between the establishment of the superannuation fund in about April 2000 and July 2012, he drew between $2,000.00 and $2,600.00 per week from which the parties met their joint living expenses. However, this amount diminished to $1,700.00 per week for the period from about July 2012 to January 2014.[63] Whilst she contended that she believed the husband receives income by way of Centrelink payment, she said was unable to verify the same[64] but the husband’s financial statement reveals the receipt of $137.00 per week from Centrelink.
[63] Affidavit of Ms Anison filed 29 January 2016 at [13] and [14].
[64] Affidavit of Ms Anison filed 29 January 2016 at [16] and [17].
The wife also asserts that, from about July 2012 until their separation in March 2013, the husband received non-capital distributions from the Trust of $1,850.00 (recorded as $1,500.00 for a car allowance and $350.00 by way of director’s fee[65]) per month or approximately $460.00 per week. She says that, as a consequence of the husband’s failure to disclose the relevant documents, she has been unable to determine what, if any, further non-capital distributions have been made to the husband. Having heard the cross-examination, I am not persuaded that any further capital distributions have been made to the husband from the Trust.
[65] Affidavit of Ms Anison filed 29 January 2016 at [32].
However, I am persuaded by the combination of the closeness of the relationship between the husband and his son, Mr D Anison’s past provision of a car for his father’ s use, his evidence about the erroneous manner in which he managed the issue of the interest referred to in the asserted “agreement” for his father to repay monies advanced to him for contribution to the self-managed superannuation fund, his evidence that he would never call on his father to repay any monies during his lifetime, the manner in which (according to his evidence) he has discharged his roles as trustee of his father’s self-managed superannuation fund and as trustee of the Trust and the manner in which the husband’s rate of expenditure and its likely impact on the value of the self-managed superannuation fund was approached,[66] that, if needed, Mr D Anison would act to ensure that his father’s financial needs are met. I consider that, in the very unique circumstances of this case, he is a source of financial support which his father could reasonably expect would be available to him to supply a financial need or meet a financial deficiency.
[66] In respect of which I accept the submissions made by Counsel for the wife.
The wife is in average health and is in receipt of an aged pension.[67] She lives in rental accommodation and does not have any superannuation interests. On any assessment, her capacity for self-support is very limited. This was recognised when an order was made for the payment to her by the husband of an amount of $500.00 per week by way of spousal maintenance.
[67] Affidavit of Ms Anison filed 29 January 2016 at [605-614].
The wife has a deferred fee arrangement with her solicitors. She owes, or will owe, them in excess of $200,000.00 (exclusive of the fees already paid).[68] Given the quantum of that amount, I feel compelled to remark that the wife has the same avenues available to her as any client has in litigation: namely, to question and/or challenge the reasonableness of the charges.
[68] Affidavit of Ms Anison filed 29 January 2016 at [617-619].
Conclusions as to s 75(2) factors
It is clear the husband’s financial situation is significantly superior to that of the wife.
My conclusions as to the respective contributions of the parties will result in a 75 per cent differential between the parties: the husband will receive property and superannuation entitlements valued at $1,294,721.24 more than the property and superannuation entitlements received by the wife.
I take into account the relatively lengthy duration of the parties’ cohabitation and marriage and their ages at the time they entered into their relationship.
I also take into account the evidence given by the husband and Mr D Anison about the change in the value of the self-managed superannuation fund between January 2016 (when it had a value of $344,872.00) and March 2016 (when it had a value of $310,435.00). When asked about the approximately $34,000.00 decrease in the value of the funds over an approximately seven week period, Mr D Anison explained that the husband had asked to withdraw $2,000.00 to pay veterinary expenses and $20,000.00 to pay legal fees. Whilst Mr D Anison was unable to provide an explanation for the balance of the decrease other than to say some of it at least was likely the result of his father’s weekly allocated pension withdrawals, he did note that, as the fund mainly “earned” (by which I took him to mean “received”) dividends from shares owned by it and as the dividend “season” was approaching, he was sure that the balance of the fund would increase again.
Given this evidence, it seems to me that the most appropriate way to consider the balance of the superannuation fund is that it is a value which fluctuates over time and which, according to Mr D Anison, is likely to be at its lowest value in March of each year before the receipt of dividends.
I also take into account, pursuant to s 75(2)(o) of the Act, the significant difference in the manner in which the husband and wife were financially supported after their separation in about March 2013. First, from separation until the implementation of the order for spousal maintenance made on 6 November 2015, the husband continued to receive the weekly pension payment from his self-managed superannuation fund and continued to live in the previously shared five bedroom, fully furnished former matrimonial home whilst the wife was accommodated in rented, furnished accommodation and supported herself financially via the receipt of government provided benefits and her use of the balance of funds taken by her at separation (in an amount of about $23,394.45) and the balance of funds she received from the sale of shares (about $1,900.00).
That the husband determined not to make any contribution to the wife’s financial support by way of payment of any spousal maintenance from the date her application for the same was filed in December 2013 until the week after the order was made on 6 November 2015 is a matter upon which I have placed significant weight, especially given that, during that period, he had an excess of income over expenses which would have enabled him to pay no less than $500.00 per week. Had he done so, the disparity between his financial situation and that of the wife over this period of time would have been diminished by about $50,000.00 and she would have been able to enjoy a living situation that, whilst still not as advantageous as his, would certainly have been far superior to that which in fact occurred. Instead, after sharing a relatively comfortable standard of living over their thirteen year cohabitation, the wife found herself in a state of relative poverty after separation whilst the husband continued to enjoy the standard of living in which both had shared previously.
Whilst I accept, of course, that there is no principle that, where a party has “ample” resources, a pre-separation standard of living should not be reduced, in the exercise of the broad discretion conferred on trial judges, this matter is, to me, of significance.
In all the circumstances and taking the matters to which I have referred above in my discussion about the s 75(2) considerations into account, I am of the view that an adjustment of 10 per cent in the wife’s favour is appropriate to ensure that orders which are just and equitable in all the circumstances are made.
Justice and equity of the proposed orders
The consequence of the conclusions outlined above is that, having regard to the parties’ respective contributions and the relevant s 75(2) matters, at the conclusion of their thirteen year period of cohabitation, during which each contributed fully and to the best of their respective abilities, and from which the husband retains the capacity to receive relatively significant income by way of pension payments, the property of the parties shall be apportioned between the parties so as to accord 77.5 per cent of the value of the same to the husband and 22.5 per cent of the value of the same to the wife.
This will see the husband receive property valued at $1,337,878.62 and the wife property valued at $388,416.37. Given that she has already received property valued at $154,866.00, the husband will be required to pay her the sum of $233,550.00 (rounded).
Given the delay in finalisation of this matter, it is appropriate that the husband has 90 days to make this payment.
For the reasons outlined above, I am satisfied in all the circumstances of this case that it is just and equitable and appropriate that orders be made adjusting the existing interests of the parties in property and superannuation interests so as to give effect to this conclusion.
Whilst it is possible that the orders I intend to make may require the husband to sell the former matrimonial home (in which he has lived since the 2013 separation), the prospect of the same was raised by the husband’s Counsel with Mr I (an accountant called in the wife’s case) on more than one occasion – albeit for a different purpose.
In particular, I note that, in dealing with the propositions advanced on behalf of the wife to the effect that the most likely reality for the husband is that, if needed, he would receive future financial support from the Trust and/or Mr D Anison and that he would likely require such support given the rate at which he was spending the funds held in his self-managed superannuation fund (the Trustee of which is Mr D Anison) Counsel for the husband suggested to Mr I that another alternative source of income for the husband existed: namely, that he sell the home, make a distribution of the proceeds to his superannuation fund to top it up (so he could continue to receive a [tax free] pension from it) and rent accommodation.
Capitalised Spousal Maintenance
The 16 November 2015 order contains a Notation that the wife have liberty to seek the payment to her, by way of capitalised spousal maintenance, in the sum of $500.00 per week for the period from 28 April 2014 until 6 November 2015. She in fact filed an Application in a Case seeking the payment of spousal maintenance in the amount of $1,000.00 per week on 4 December 2013. As noted earlier, an order for the payment to her of the amount of $500.00 per week was made on 6 November 2015. The amount sought, as outlined by Counsel on her behalf, was $50,000.00.
It was submitted on behalf of the husband that the Court would not be persuaded that it is now proper to make an order for the payment of a capitalised sum of $500.00 per week for any past period not already provided for by the Order made on 6 November 2015 because there was nothing in the wife’s evidence to establish that, absent receipt of that amount during the period for which it is now sought, she was unable to support herself adequately.
In advancing the wife’s case for the making of an order for capitalised spousal maintenance, Counsel who appeared on her behalf submitted that, as the Court was persuaded of her need for support on the basis of her evidence filed in support of the December 2013 application, the absence of indebtedness referable to this period was irrelevant.
I accept this submission. I do so because it is clear that the wife supported herself (albeit it in a very modest way and with the assistance of $3,000.00 she borrowed from a friend and repaid over time after she started to receive the $500.00/week spousal maintenance ordered in November 2015) during this period via the receipt of Centrelink payments (which were of the nature of an income tested pension, allowance or benefit). Her entitlement to such payment is, of course, to be disregarded in the exercise of the jurisdiction under s 74 of the Act.[69]
[69] s 75(3) Family Law Act1975 (Cth).
However, given that I have taken the husband’s failure to provide financial support (in the manner discussed in paragraphs 98 and 99) for the wife after separation until the order was made on 6 November 2015 into account in my consideration of those orders which are just and equitable to determine the property settlement proceeding aspect of the parties’ litigation, it would not be proper in my view to make an order as sought by the wife.
Had I not approached this issue in the way that I have during my determination of the property settlement aspect of these proceedings, I would have been persuaded to make an order for the payment by the husband of the amount of $50,000.00 by way of lump sum spousal maintenance.
However, for the reasons outlined, I decline to make an order that the husband pay the wife any amount by way of capitalised spousal maintenance.
The wife’s claim for indefinite periodic spousal maintenance
By her Application, the wife sought $500.00 per week by way of spousal maintenance for a period of two years. The Court must consider such claim in light of the wife’s entitlement to property consequent upon the determination of her application pursuant to s 79 of the Act.[70]
[70] See, for example: Brodie v Brodie (2009) 41 Fam LR 18.
Counsel for the husband sensibly conceded at trial that his client had capacity to meet such payment for such a period of time. Upon this concession, Counsel for the wife subsequently informed the Court that such spousal maintenance was sought on an indefinite basis.
An order in such terms was opposed by Counsel for the husband.
The appropriate acceptance by Counsel for the husband that the husband had the capacity to meet a payment of $500.00 per week for a period of two years after orders were made occurred in circumstances where it is more likely than not that neither party foresaw the delay in the finalisation of the matter. Given this, I consider it would be unjust to regard the concession made by Counsel for the husband in 2016 as applying to the situation now.
The husband is liable to maintain the wife, to the extent he is reasonably able to do so, if and only if she is unable to support herself adequately whether, relevantly, by reason of age or physical or mental incapacity for appropriate gainful employment or for any other adequate reason having regard to any relevant matter referred to in s 75 (2) of the Act.[71]
[71] s 72(1) (b) and (c) Family Law Act1975 (Cth).
Whilst the wife will not work for remuneration again, the consequence for her of the order I will make in determining the property settlement proceedings part of the proceedings will see her receive the sum of $233,550.00 within 90 days. Can it be said that, following receipt of this, she is unable adequately to support herself? I think not.
Whilst I note that the wife has outstanding legal costs in the amount of about $200,000.00, I am not persuaded that it is proper to take her indebtedness into account in determining her application for future periodic spousal maintenance. I arrive at this conclusion because I consider that to do so would mean that the husband is in reality being called on to defray these legal expenses.
Of course, it is proper that, until she receives the lump sum payment from the husband, he is required to continue to pay her weekly spousal maintenance in the sum of $500.00 because until she receives these funds she does not have the capacity to support herself adequately and he retains the capacity to make such a payment.
For the Reasons outlined above, I make orders in the terms appearing at the commencement of these Reasons to give effect to the conclusions I have reached.
I certify that the preceding one hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 28 February 2018.
Associate:
Date: 28 February 2018
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