ARMITAGE & ARMITAGE
[2015] FCCA 2974
•5 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ARMITAGE & ARMITAGE | [2015] FCCA 2974 |
| Catchwords: FAMILY LAW – Property – where there is a small pool for distribution – where there is strong evidence as to one party’s failure to cooperate with the proceedings and to provide disclosure – where there is an inference to be drawn that one party to the proceedings has dissipated or secreted assets away – consideration of the approach to be taken in such a situation and the inferences to be drawn – where orders are made which reflect a negative inference drawn in relation to the evidence of one of the parties to the proceedings. |
| Legislation: Family Law Act 1975 (Cth), ss.75(2), 79(4) |
| Pastrikos and Pastrikos (1980) FLC 91-987 Stanford and Stanford Lots of Questions – Very Few Answers, Martin Barfeld QC of the Victorian Bar |
| Applicant: | MS ARMITAGE |
| Respondent: | MR ARMITAGE |
| File Number: | TVC 1022 of 2013 |
| Judgment of: | Judge Coker |
| Hearing dates: | 10 & 11 August 2015 |
| Date of Last Submission: | 11 August 2015 |
| Delivered at: | Townsville |
| Delivered on: | 5 November 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Keegan |
| Solicitors for the Applicant: | Roberts Nehmer McKee |
| Respondent: | In Person |
ORDERS
BY WAY OF FINAL PROPERTY SETTLEMENT
That the sum of $44,000 held in the trust account of Roberts Nehmer McKee Solicitors be released to the Wife as and for her sole property absolutely.
That the Husband forthwith take all necessary steps, at the direction of the Wife as to manner of sale and sale price, to effect the sale of the property situate at Property B more particularly described as Lot (omitted) on (omitted), in the County of (omitted), Parish of (omitted), Title Reference (omitted) and that following the payment of the current liability attaching to the property, as well as the payment of any outstanding rates or utilities, that the balance be paid to the Wife.
That an injunction issue restraining the Husband from dealing with the property at Property B, including but not limited to further encumbering, selling or otherwise dealing with the said property.
That the Wife otherwise retain the Motor Vehicle in her possession and all other property in her possession as and for her own property absolutely and indemnify the Husband in relation to any liability attaching to such property retained by her.
That the Husband otherwise retain the Motor Vehicles in his possession and all other property in his possession as and for his own property absolutely and indemnify the Wife in relation to any liability attaching to such property retained by him, including but not limited to any taxation liability arising in respect of the operation of the business, (omitted).
That should there be any application for costs, then the party seeking costs shall within 28 days of the date of this Order file submissions in relation to costs and the other party shall respond within 21 days and determination, unless otherwise requested in writing, shall occur in Chambers.
IT IS NOTED that publication of this judgment under the pseudonym Armitage & Armitage is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT TOWNSVILLE |
TVC 1022 of 2013
| MS ARMITAGE |
Applicant
And
| MR ARMITAGE |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION:
On 21 October 2013, Ms Armitage, whom I shall refer to as the wife, filed an application in this Court seeking orders in relation to a property settlement to be effected between she and Mr Armitage, whom I shall refer to as the husband. Initially in that application, Mr M was also named. Mr M was subsequently discharged as a party to these proceedings, though, as will become obvious during the reasons, he still held some significance, in relation to the determination of the matter, particularly from the perspective of the husband.
The orders that were sought by the wife in her application on 21 October 2013 were short and to the point. They were in these terms.
(a)That the transfer of the property at Property B, more particularly described, at Lot (omitted) on (omitted) with title reference (omitted), as between the first respondent and the second respondent be set aside pursuant to section 106B of the Family Law Act 1975 and that this property be included in the pool of assets available for distribution between the parties.
(b)That the property of the parties be divided in a just and equitable manner.
(c)That the respondent pay the applicant’s costs of and incidental to this application.
(d)Any further or other order deemed necessary by this honourable Court.
The husband responded to that application on 21 November 2013. In that response, he sought orders in a most succinct manner. They were as follows:
(a)That the applicant wife’s application for final orders be dismissed.
(b)That the applicant wife pay the respondent husband’s costs of these proceedings.
(c)Such other order as the Court deems meet.
It should be noted also that, at the initial stage, a response also was filed by Mr M. That response of 9 December 2013 sought orders in these terms:
(a)That the applicant’s application pursuant to section 106B of the Family Law Act to set aside the transfer of the Property B property from the first respondent to the second respondent be dismissed.
(b)In the alternative to paragraph 1, that the Court otherwise make orders under section 106B(3) of the Family Law Act to protect the interests of the second respondent herein, and, in particular, in respect of the debt owing by the first respondent to the second respondent as deposed to in the affidavit material filed by each of the respondents herein.
(c)That the applicant pay the second respondent’s costs of and incidental to these proceedings.
The matter then meandered forward from December of 2013, when it first came before the Court, with further directions being made in relation to the filing of material, as well as in dealing with issues with regard to costs and security for costs, particularly those being sought by the second respondent, Mr M. However, when the matter finally came before the Court for more substantive determination, at least in respect of clarification of what issues might or might not be before the Court for a more significant hearing, circumstances had radically changed.
In particular, on 22 July 2014, it was noted that the second respondent was directed to file and serve an affidavit within 14 days, which set out the details of the recent sale and transfer of his property at Property B, to the husband. It should be noted that that is the property which was the subject of the original application brought by the wife, seeking an order pursuant to section 106B of the Family Law Act. The property was, therefore, returned to the husband for apparent consideration, in respect of the proceedings for property settlement.
On 22 August 2014 when the matter was next before the Court, it was noted that there was no appearance by or on behalf of the second respondent and, in fact, he filed shortly thereafter, a notice of discontinuance, in relation to his involvement in relation to the proceedings. Thereafter, the matter proceeded in the normal way to a financial conciliation conference before a registrar of the Court.
However, the matter was not resolved. It is noteworthy that in the financial conciliation conference summary prepared by the registrar following the conference on 21 October 2014, the registrar rather presciently noted:
Both parties make serious allegations against the other of deceptive, misleading and criminal conduct. The divergence in versions is such that one party is not telling the truth. Such is the level of conflict that mediation is impossible.
Thereafter, the registrar recommended that the matter be listed for hearing, and, when the matter eventually came back before the Court, directions were made listing the matter for a two-day hearing and for the filing of material, as well as chronologies and other documents, that are normally required in relation to the listing of proceedings.
At the time of hearing, the wife was the only witness for her case. The husband relied upon his evidence and also that of Mr M, though he had indicated that a number of other witnesses were initially intended to be called, but they subsequently were not required by him or, alternatively, were not available for the purposes of giving evidence at any hearing.
It should be noted, that by the time the matter had come to Court, there were significant changes in the circumstances that then existed, with regard to the property of the parties. I say that particularly noting that, at the time that the parties separated, there were two real properties in the name of the husband, though it was certainly contended by the wife that they were matrimonial property. Those properties were situated at Property J, and Property B.
The property at Property J subsequently was sold by the husband, and it should be noted, that a number of concerns were raised by the wife, in relation to that sale, both in respect of the sale price, as well as the genuineness or legitimacy of the sale, as the wife contended that the sale was effected to a person who was a friend of the husband or, at worst, an acquaintance, who would accommodate him with regard to the transfer of the property back, at a later stage.
Additionally, the property at Property B, which was originally said to be valued at $110,000, that being the price upon which it was initially transferred to Mr M and which was unencumbered at the time of such transfer occurring, was then subsequently transferred back to the husband, but was now subject to an (omitted) Bank home loan of approximately $72,000. It was also contended that the value of the property had dropped, though no valuation was produced, despite the fact that Mr M indicated in his evidence before the Court, that he had sighted a valuation. Again, I shall come to that issue a little later in these reasons.
THE APPLICATIONS:
Obviously, therefore, with other changes having occurred, the financial landscape for any considered distribution to be effected between the husband and the wife had significantly changed, such that, at the time of filing of the wife’s case outline on 9 August 2015, the best that could be said in relation to a property settlement to be effected was that the wife sought orders in these terms:
(a)That the wife retain the amount of $44,000 held in the Roberts Nehmer McKee Trust Account and that she also receive a cash payment from the husband in the sum of $57,250, totalling then $101,250.
That calculation was brought about, as it was suggested that the amount of $101,250 was 50 per cent of what could reasonably be considered to be the matrimonial pool, as best it could be assessed. There was a significant degree of difficulty in actually calculating what the pool might be, specifically when the outline provided by the wife, noted that, as best it could be calculated, the total equity held by the parties, at least in relation to assets that could be located or quantified, was $65,000.
I shall come again to the issues that give rise to those apparent discrepancies in relation to quantifiable debt and amount claimed a little later in these reasons.
The position of the husband did not change from his response of 21 November 2013.
As might be obvious, there were significant difficulties in relation to the determination of this matter. All of those difficulties stem from the very divergent perspectives and positions taken by each of the parties to the litigation and the registrar summed up the position in relation to this matter when he indicated that, at the conclusion of the conciliation conference, there could be no resolution. That arose from the fact that each made serious allegations in relation to the other’s truthfulness and, in fact, suggested criminal conduct, with regard to the matrimonial property.
THE EVIDENCE:
The evidence provided in relation to the matter was scant in the extreme. To a significant degree, that arose as a result of the behaviours of the husband. That is not to say that there were not failures and concerns in relation to the wife, with regard to provision of information and documentation, but at least to a significant degree, the wife has sought, as best she was able, to provide information in relation to this matter.
It should also be noted that the two most significant assets of the parties were the real properties situated at Property J and at Property B, and both of those properties were dealt with by the husband, as they were held only in his name, without any real exchange of information and certainly without any significant or real consultation, in relation to what should occur with regard to those properties. Obviously then, the evidence, and the credit that can be given to the parties loomed large, in relation to the determination of this matter.
I turn, then, to the evidence of the husband and the wife and also, of course, to the evidence of Mr M. The wife’s evidence in relation to the matter was somewhat confusing, stemming, no doubt in part, from difficulties that she experienced with regard to English not being her first language, but also, I thought, from some of the questions directed to her by the husband being a little difficult for her to comprehend, let alone answer.
The husband emphasised, that the wife was a gambler and that he said that she had spent significant amounts of money gambling. The wife denied that that was the case, though I must say, that her evidence, at least in relation to that particular aspect of the matter, did not ring true. The husband questioned the wife, for example, about how much she spent at the casino, though, as I understood the evidence with regard to gambling, it was that the wife gambled excessively on poker machines.
Certainly when challenged, and when certain information was provided, including bank statements, it became clear that there were, on occasions, very significant withdrawals from the (omitted) Casino on certain days. It was the case that, on 25 May 2008 for example, withdrawals were made from what would appear to be the wife’s credit or debit card for $2900 and on 15 December 2008, a further withdrawal of $3100, no doubt in various amounts during a day.
The wife was evasive when she gave evidence about her gambling. When asked whether there were other times that she had drawn moneys down, she suggested that she could not remember, though, when pressed, was able to acknowledge that there were those significant sums, hundreds and, on occasions, thousands of dollars that were drawn at the casino. The wife indicated, however, that the husband was present with her on many, if not all, of those occasions that she drew money, and though she was again unable to be precise with regard to the amounts that she drew down for the purposes of gambling, I am satisfied that the wife did on occasions gamble amounts which might be considered to be more significant than just the occasional “dabble” on the poker machines, that was suggested in the wife’s material.
By the same token, however, I have no doubt that, whilst it may have been the case that drawings in relation to gambling were on many occasions made directly from the wife’s account, the husband was present and would have shared such funds as might have been drawn down, for the purposes of his own gambling, as well. I am inclined, therefore, to the view that the wife was perhaps not as full and frank as might have been the case with regard to the issue of spending on gambling, but that, to a significant degree, it was done in conjunction with the husband.
Additionally, I was not convinced that, when the wife travelled, as appears to be acknowledged on a number of occasions to have occurred, back to her native (country omitted), that she did not utilise joint funds for those purposes and that she also would have travelled, with at least some spending money. The husband suggested to the wife that that would have been amounts in the vicinity of 5 to 10 thousand ($5000 - $10,000) Australian dollars on each occasion that she travelled and the wife became rather agitated, responding that it was not true, and I would assess that the statement of it not being true, was not to deny that she had travelling money, but that it was to the sum suggested by the husband.
A little later in her evidence, in any event, she acknowledged that she did take some spending money that had been given to her by the husband, though it was certainly not quantified. The wife did indicate, however, that it was, “not big money”. The wife was also challenged in relation to her predilection for the purchase of 24 carat gold, (omitted) jewellery. She again became quite agitated, suggesting that she had not purchased significant amounts, though the husband was just as adamant in both his affidavit evidence and in his cross-examination of the wife that there were numerous purchases of jewellery effected by her.
I am inclined, perhaps trying to balance the positions of each of the parties, to think that there were, on occasions, jewellery items purchased by the wife, but to suggest that there was some vast array of jewellery that might have been secreted away by the wife does not ring true, particularly when the husband’s best evidence, in relation to the matter was that, when showing two wedding photos to the wife, he indicated that the jewellery she wore, including a necklace, was gold jewellery. The colour photograph that was produced to the wife elicited a response from her immediately of, “it is pearl”, and, when shown to me, though I, of course, acknowledge that I do not have such expertise, it appeared very clearly to be a pearl necklace rather than, as might be suggested by the husband, a gold necklace.
Whilst, therefore, I am inclined to the view that perhaps some gold jewellery and other jewellery items might have been purchased at different times by the wife or by the husband for the wife, it was not a situation of there being extensive jewellery reserves held by the wife.
The wife was also questioned about the circumstances that led to her frequent use of the husband’s Visa card, and, in fact, in a short period of time, 40 transactions relating to his Visa card, which were subsequently the subject of some police inquiry, charges and dismissal of such charges, along with orders made against the Queensland Police Service for the payment of the wife’s costs, in relation to the defence of the charges.
The wife says she used the card with the husband’s authority. The husband says that it was, in fact, fraudulent use by her, with lies being told to him about lost cards and the like. There are no possible in-betweens, in relation to determining what might or might not have been the case, in relation to that particular aspect of the matter, and I am inclined to find in this instance that, whilst the criminal Courts found that there was no case to answer, the expenditure by the wife, particularly when many of the transactions were simply of a cash withdrawal nature, incline me to the view that the expenditure by the wife was certainly without the direct knowledge or approval of the husband.
However, it is of little real consequence in the final wash up and determination of this matter. I should also in passing, note that the wife’s evidence in relation to her attachment to the Property B property and that she, “loved it there” and “wanted to make it her and the husband’s home”, rang hollow. That was particularly the case when the wife’s own evidence was that she had established a garden and had started to take various steps to make the rundown property at Property B into a home.
Only when challenged, and evidence was given by Mr M in relation to what he saw of the property did it become clear that the statements by the wife were exaggeration at best, and untruthful at worst. The wife indicated that she had some hopes or expectation about establishing a garden. She said that she had talked about it with the husband and that there had been some suggestions for planting of mango trees to provide some shade, but that there had been no chance to do that.
It was a very significant step down from the original evidence of the wife, with regard to her having established a garden and for it to have been something that she loved and was keen to continue. This was more so the case when the wife’s own evidence as to back problems and pain were emphasised to her by the husband and the wife’s best answer in relation to the comments about gardening were to the effect that her back hurt, but “I love to do the garden”.
It was untrue, particularly when one is mindful of the fact that the wife’s own subsequent evidence was to the effect that the garden had not really been established.
Finally, when considering the wife’s credibility, it was important also to note that the wife was adamant that she had not been provided with many of her personal items, as well as various furniture and chattel items from the home. When challenged in relation to that evidence however, and particularly when faced with the different evidence of Mr M, with regard to the delivery of furniture items and boxes of personal items to the wife, it become clear that significant items of property were delivered to the wife and that only when pressed did she acknowledge that some, but not all items of property sought by her, were made available to her.
I acknowledge that some of the difficulties that appear to arise with regard to the wife’s evidence may have arisen from her trying to understand questions in English, when English was not her first language. And that that may also have been the case when instructions were being taken for the preparation of documentation. By the same token however, I unfortunately formed the view that the wife was not as full and frank in the evidence that was to be given by her, as might have been hoped or expected.
However, in comparison to the credibility and truthfulness of the husband, the wife is a beacon of virtue. I have rarely, if ever, been more troubled by the evidence of a party to proceedings than I was in hearing the evidence of the husband. He tried to give the impression that he was a man of honour, but when challenged in relation to almost every issue with regard to his conduct since the time of separation from the wife in or about early April of 2012, there were serious inconsistencies and outright untruths that became clear.
The husband, when it was suggested that the relationship was in trouble, found himself on the receiving end of a number of demands from various friends, who had allegedly provided him with money. Those demands included a letter of demand from Mr D dated 16 August 2012, demanding that Mr Armitage pay him the sum of $12,000, being money leant to him approximately 18 months previously. That loan was to cover moneys allegedly stolen from his house, when he was required to pay outstanding accounts and bills.
Mr D was not called, and the debt apparently had been repaid, but, it should be noted that, firstly, the money alleged to have been stolen was stolen, the husband said adamantly, from his car when he had mistakenly left it unlocked, and it would seem that such a fundamental point would have been known to Mr D when moneys were demanded. Additionally, it was noted in the letter of demand that if the moneys were not paid within 30 days, legal action would be instigated against the husband, but, that never occurred.
Similarly, it was suggested that there was a debt of $60,000 owing to Ms S. In that regard, a statutory declaration was filed, being dated 15 March 2013, in which Ms S indicated that she had leant the husband $60,000:
As he had insufficient for a deposit of Property J.
The statutory declaration then went on to note that the husband had agreed that he would repay the borrowed amount with interest at five per cent, compounding per annum. Not a skerrick of evidence was available in relation to that matter. Ms S was not available for cross-examination, and the debt was not pursued by Ms S and, as best I can understand the evidence, was never paid.
Further, the letter of demand from Ms S had a clause almost identical to that contained within the letter of demand of Mr D. The letter of demand from Mr D indicated:
The amount stated above must be paid within 30 days or legal action will be instigated.
The letter of demand from Ms S of 15 March 2012 contains a clause in these terms:
This money is to be paid within 30 days or legal action will be instigated.
I have not been required to rule in relation to those debts, they not being apparently the subject of dispute now before the Court, but would comment in passing that there is too much similarity for there to be anything other than a real concern that it was the husband who has put each of those persons forward as having moneys owed, without any real expectation that they would be able to justify or to explain the debt. I was troubled by those claims.
Insofar as the claim by Mr M was concerned, I note in particular that Mr M, in an affidavit filed by him, annexed three statutory declarations in relation to the transfer of property at Property B. In his statutory declaration of 26 September 2012, Mr M deposes to purchasing the property at Property B from the husband on or about 16 March 2012 and that the value of the property was agreed by both parties at $110,000. He went on to note that his consideration for the purchase of the property was in lieu of the full debt owed to him by the husband and that it arose from moneys loaned in the year 2000 to the husband in amounts of 28,000 and $25,000 plus works performed by Mr M for the husband on his house at Property J, to a value of about $10,000.
The principal plus interest totalled approximately $110,000 at the date of transfer, and this was suggested to have been the basis upon which the debt was repaid. Mr M gave evidence in relation to that particular transfer, and it is interesting and noteworthy that Mr M’s evidence was clearly to the effect that the transfer of the property to him was suggested by the husband as arising from discussions between the husband and Mr M in late 2011, when it was suggested by the husband that he was going to sell the property and Mr M proposed that it be transferred to him.
Mr M struck me as a reasonably honest man, but one who found himself in an extraordinarily difficult situation. I say that from the perspective of Mr M wishing to give as faithful and true a set of facts in response to the questions that were directed to him, but that he was constrained by his loyalty and friendship to the husband.
However, his evidence in a number of areas was indicative of the lack of credit that could be given to the husband’s evidence. I previously mentioned, for example, that when the property was transferred back from Mr M to the husband, it was transferred for a value of $90,000. It was interesting that Mr M noted that when that figure was suggested in relation to the value for the transfer back, it was on the basis of a valuation that was sighted by him, whilst the husband’s best evidence in that regard, was that there was no valuation and that, in words to the following effect:
Someone in the area had told him that property values in Property B had dropped, so he suggested $90,000.
It was interesting that when pushed as to how he was so well able to recall that a valuation had been sighted by him, he indicated that it had been provided, because the husband had had it done because of the proceedings before the Court. Additionally, Mr M indicated that when the property was transferred back to the husband, there was reference in the contract to a payment of a $9000 deposit, though that was not actually paid, but the husband’s earlier material indicated that he was required to pay that deposit, and only when challenged in the witness box, did the husband acknowledge that no such deposit was paid.
More particularly, however, the husband gave no evidence whatsoever of what might now be the situation between he and Mr M with regard to the debt that it was suggested was owed by the husband to Mr M. Mr M indicated that there was a simple contract in place now between he and he husband, and when I inquired whether I might interpret that as a loan agreement, he indicated that was the case and that it provided for the husband to pay interest of 10 per cent and to pay back 10 per cent of the debt each year. Interestingly, of course, no repayments had been made, and Mr M’s clear evidence was that he did not expect to receive any such payments at any time in the future.
As I say, Mr M, I thought, was a man in an invidious position trying as best he could to be an honest witness in the witness box, but finding himself in the situation of having to attempt to back up a person for whom he felt some significant degree of loyalty.
Insofar as the husband was concerned, however, there just continued to be a litany of lies. The husband said that the property at Property J was his, though he acknowledged eventually that it probably should be considered as matrimonial property, and the best that he could suggest as to why it was his, was because it was purchased by him at a time when he and the wife were not in a relationship. The husband acknowledged that they had commenced their relationship in 1996 or 1997 and that the Property J property was purchased in (omitted) of 2000.
The husband said, however, that at the time of purchase, the wife was living with or in a relationship with another person, and that they were not living together. He acknowledged, however, that the wife was living at an address in (omitted), though he was living at an address in (omitted). It was noteworthy, however, that the contract of purchase for the property at Property J noted the husband as the buyer and his address as Property Q.
The husband’s best explanation and it was no explanation at all, was that he had used that address but that he was not living there. He then went on to suggest that the wife was in a relationship with a person called Mr S, but no evidence whatsoever was provided in that regard, and when challenged as to the truth of the evidence that he had given, he said that the paperwork might suggest that there was some connection to the address at Property Q, but it was not the actual situation.
The husband, in further cross-examination, said that it was also clear that he was a “single man” at the time of the purchase of Property J, because if he had been in a relationship, he would have purchased the property in joint names. That, however, did not ring true when it was acknowledged that the Property B property was purchased in 2009 and that he and the wife were clearly in a relationship at that time. His best explanation then was that the deal to purchase the property was a handshake deal, that he was in the (omitted) area camping at the time that he sighted the property and the wife was elsewhere. And when he asked the wife to come up to have a look at the property, she said that she would not come up and was not interested.
Whether that was or was not the case is irrelevant, because the property could have been purchased upon the signing of the contract in joint names. The husband had an explanation for everything in relation to these proceedings, but none of it, rang true. The husband said that he purchased the property at Property B to, “get Ms Armitage away from the gambling”, but then went on to suggest that the wife would not attend, even for the purposes of inspecting the property, and therefore to suggest that it was purchased to get her away from gambling fell flat, when it was also suggested by him that the property would not be utilised by her.
The husband’s evidence in relation to the nature of his business, (omitted business), was also less than credible and certainly not believable. The husband was working the business, but filed BAS statements in relation to the operation of the business which showed income as nil. He said that it was a business that operated legitimately and made no money yet his own evidence was that at different times moneys were stolen from him, being cash amounts of $6000, taken from various places within the home as well as $4000 that was removed from his wallet. This he said was income from the business.
The husband again had explanations, but they all fell flat. The wife said that the husband’s business was one that operated, significantly on a cash basis. The wife indicated that moneys were held at the home, and the husband’s indications, at least in passing in his affidavit material, was that money was removed, he suspected by the wife, from the home. The husband could not have it both ways and suggest that the wife had stolen cash amounts or used cash amounts which were business moneys, but then also deny that his business was one that utilised significant amounts of cash being received.
The husband was untruthful, as he was when suggesting that he had borrowed money from Mr D. It appears clear that, at exactly the same time that he said he was in desperate need of funds, he had received approximately $34,000 from the estate of his late mother and that those funds were available to him. The best that he could suggest in relation to that was that he had not wanted to use his mother’s moneys for his business. The husband would say and do anything to explain the inexplicable and indefensible.
He says he closed his business down after he found that he could not operate it as a mobile business, and, again, the best he could suggest was that he had a comprehensive list of parts at the time that he closed the workshop that was utilised for the business, but when challenged as to what might have happened with the plant and equipment, as well as those various parts that were utilised for the business and whether they had value, he responded many were old.
He honestly had not done a stocktake. He could not guess their value and had disposed of the majority of the items that he could not keep in the ute. I do not believe the husband when he says such actions were taken by him. It was simply one more of the many attempts by him to explain the inexplicable when it came to his actions.
The husband’s evidence with regard to what happened with moneys when he sold the Property J property was, again, a clear indicator of the husband’s unreliable evidence. He detailed a myriad of debts that were paid by him, but when challenged and actually taken to what those debts were, it was clear that the amounts that were said to have been paid bore no reflection whatsoever of what was actually owed. Moneys were paid to credit cards far in excess of what was owed and then cash withdrawals were taken.
It was interesting, that the husband was very critical of cash withdrawals being made by the wife as they were reflective of dishonest actions on her part, but he had no real or feasible explanation for the withdrawals of thousands of dollars by him from the credit cards that had had amounts overpaid to them.
Most obviously difficult to accept, and I do not accept it as true, was the statement by the husband that he had withdrawn amounts totalling $15,000 from various moneys that had been received by him, but that he was distracted and left it along with all of his business documents and some court documents in his car unlocked on the (omitted) in (omitted) and they had been stolen. He says he reported it to the police, and I suspect that he probably did, but nothing came of it, and I have absolutely no doubt that the husband has retained those moneys to his own purposes and has simply sought to use some highly incredible story as a way of saying that moneys were lost, as well as to then justify the suggestion that Mr D had been required to lend him money.
The husband’s evidence was unbelievable on almost every level. The husband was asked about the evidence that he gave in court with regard to the sale of the Property J property. His evidence included specifically indicating that the sale of the Property J property at Property J was for a true value to a party he did not know. Only when pressed did he acknowledge that, in fact, the sale was to a person who operated a business premises in the same street as him and that he knew the purchaser, Mr O.
The husband denied that there was any close friendship, no more than perhaps a passing acquaintance and a wave in the street, but it rings strange that the statements made by the husband to Judge Baumann when the matter was before his Honour in 2014, was that he did not know the purchaser. The husband, in my assessment, would say and do anything to attempt to justify the indefensible when it came to every attempt being made by him to dissipate any moneys that might properly be able to be utilised as a fund for a property distribution to be effected between he and the wife.
When asked about the sale from Mr M to him of the Property B property and the receipt back by him of $81,000 that was paid to Mr M only a matter of days after the settlement, he indicated that it was a loan from a good friend. When challenged in relation to that, it was suggested to him that he was simply trying to hide money, which he denied. It was put to him that the whole scheme did not “add up”, particularly when Mr M’s evidence was that he was in need of money, that he had had financially difficult times and that some moneys would have logically been sought to be retained by him.
As I say, when it was put that it did not add up, his response was simple and I thought perhaps one of the only honest answers that were given. He said, “It does for me”. I have no doubt that it did for him because the husband’s absolute belief was that he was entitled to all that he could possibly get from what remained of the assets of the parties.
The husband says he closed the operation of the business, but I am not confident at all that the business will not resurface immediately a property settlement has been effected and that the items of plant equipment and parts that had been, as suggested by the husband, disposed of will not suddenly be able to be found. I have no doubt whatsoever that the debts certainly suggested in relation to Mr D and Ms S were untruths and that it was more so a case of them not wishing to actually come before the Court and continue those untruths, that leads to them not being pursued here.
In relation to Mr M, I am perhaps inclined to the view that moneys were lent by Mr M to the husband but I am absolutely of the view that there was nothing formal in relation to interest or repayment and that it was simply convenient for the husband, when the relationship became strained, to suggest that the debt was due and that the best way to deal with it was to transfer one of the most significant assets of the relationship immediately out of the husband’s care and control and into that of Mr M.
I have no doubt that the Property B property constitutes a part of the matrimonial pool, as does or as did the Property J property before it was sold and at least some small amount of money could be secured from it. In relation to the payment of $44,000 into the trust account of the solicitors for the wife, it should be noted that the amount ordered to be paid by Judge Willis of $44,000, arose from the husband’s indication that that was the money that he had. When moneys were paid, however, there was only an amount of approximately $42,600 paid and there was a shortfall of about $1400.
That amount was paid, notice was given that it was less than the amount that was required to be paid pursuant to the orders and almost immediately the husband, though suggesting at all times that he was in dire financial straits and had access to no moneys, was able to find instantly the further amount necessary to top up the amount paid into the trust account of the solicitors for the wife, so as to facilitate the payment of $44,000.
As I said at the commencement of comments in relation to the evidence of both the husband and the wife, I had some doubts in relation to the genuineness and total voracity of the wife but when compared to the tidal wave of lies, untruths and misleading statements made by the husband, it is clear that where there is any conflict between the evidence of the husband and the wife that I, without hesitation, would accept the evidence of the wife as an appropriate and proper reflection of what can best be assessed, in relation to these proceedings.
The difficulty that then arises is to attempt to assess what might be the pool for distribution between the husband and the wife. Before attempting to apply what evidence there is to the legal framework that must be considered, I first address issues in relation to the law.
THE LAW:
I turn then to the matters that need to be considered pursuant to the law in relation to these proceedings. Section 79 of the Family Law Act defines the court’s powers in determining applications for property settlement. Subsection (2) of section 79 provides that:
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.
Section 79(4) sets out the matters the court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters include:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The approach to the determination of an application under section 79 is well established by authority (see, for example Pastrikos and Pastrikos (1980) FLC 91-987; In the Marriage ofLee Steere and Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage ofClauson (1995) FLC 92-595 and In the marriage of Whitely and Whitely (1996) FLC 92-684). The process ordinarily involves a multiple part procedure.
The court must first identify the assets, liabilities and financial resources of the parties and attribute a value to all assets, usually at the time of the hearing. Thereafter it must evaluate the contributions made by each of the parties as defined in section 79(4)(a) to (c). Finally, the court must consider the financial resources, means and needs of the parties, and other matters set out in section 75(2) in so far as they are relevant. An adjustment of the amount due to each party by way of contribution is then made by reference to the section 75(2) factors. It is not essential, however, that such an adjustment be made. Generally speaking, an adjustment is made because one party has greater needs and the other has stronger means. Section 75(2) is concerned with the process of arriving at a just and equitable result.
In determining what order the court should make under section 79, the court must be satisfied, in all the circumstances of the case, that the order to be made is just and equitable – not simply that the underlying percentage division of the net value of the parties is appropriate. In other words, in consideration of whether the overall result of the order in the property settlement proceedings, is just and equitable (see section 79(2)). It is the justice and equity of the actual orders that the court must consider, Russell v Russell (1999) FLC 92-877.
Section 75(2) of the Family Law Act sets out the matters which must be taken into account by the court when determining applications with respect to maintenance. This is the prospective element of the determination of the application for property settlement. The assessment of contributions during the marriage is the retrospective element.
In the Marriage of Ferraro, the Full Court said:
A now well established line of authority in this Court indicates the approach normally to be taken in the exercise of the discretion in s79 proceedings. That approach is firstly to ascertain the property of the parties at the time of the hearing, then to consider “contributions” of the parties within paras (a) to (c) of s79(4), and then to consider the matters in paras (d) to (g), more especially para (e) which takes up by reference the provisions of s75(2) and which are generally referred to as the “section 75(2) factors”.
In Hickey and Hickey and A-G for the Commonwealth (2003) FLC93-143 the Full Court of the Family Court approved the four step process to making orders under section 79 of the Family Law Act:
Step 1: Make findings as to the identity and value of the property, liabilities and financial resources of the parties as at the date of the hearing;
Step 2: Identify and assess the contributions of the parties within the meaning of section 79(4)(a), (b) and (c ) and determine the contribution based entitlements of the parties expressed as a percentage;
Step 3: Identify and assess relevant factors in section 79(4)(d), (e), (f) and (g) and section 75(2) and determine any adjustments that should be made to the contribution based entitlements at step 2;
Step 4: Consider the effect of the findings in Step 3 and determine and resolve what order is just and equitable in all the circumstances.
(It is clear it is the Order that must be considered in terms of justice and equity, not the percentage split – Russell v Russell (1999) FLC 92-877).
The High Court’s decision in Stanford v Stanford [2012] HCA 52; (2012) 47 FamLR 481 has now modified that approach. In Erdem & Ozsoy [2012] FMCAfam 1323 (5 December 2012) Walters FM, as he then was, said of the majority decision in Stanford:
116. It is arguable that the effect of the High Court's decision in Stanford is that the first step in the property settlement exercise is to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in their property. The second step involves ascertaining whether it is just and equitable to make an order altering the interests of the parties in their property. In most cases – relevantly, where the parties have separated and are no longer living in a marital relationship – the underlying assumptions that the parties had to the effect that the existing property ownership arrangements were functional (or perhaps irrelevant) and could be varied by agreement between them, no longer apply. That fact alone should ordinarily persuade the Court that it is just and equitable to make orders altering the parties' interests in their property. It is only after the Court has concluded that it is just and equitable to make such orders that it should proceed to take what might be regarded as the third and fourth steps – namely:
a) assess the extent of each party’s contributions under the various sub-headings described in section 79(4); and
b) thereafter, consider the financial resources, means and needs of the parties and the other matters set out in section 75(2) so far as they are relevant,
and in the process adjust the amount due to each party by way of contribution by reference to the relevant section 75(2) factors.
In Hobbs & Valonz [2013] FCCA 1999 Judge Cassidy adopted the approach set out by Mr Martin Barfeld QC of the Victorian Bar in his paper “Stanford and Stanford Lots of Questions – Very Few Answers”. The paper suggests the following approach which was adopted by Judge Cassidy:
“It can be now said after Bateman v Bowe that the approach is still one involving steps, albeit not to be followed ‘unthinkingly’. These appear to be:
o Declare and value the interest (both legal and equitable) of each party in property:
o Determine whether circumstances exist to make an order adjusting those interests and explain that circumstances. If the answer is yes (as it usually will be);
§ Evaluate and fix contribution;
§ Apply the s.75(2) factors;
o Formulate an order justified to give effect to the production of the evaluation.”
In Stanford, the majority explained in respect of whether it would be just and equitable to make an order would often be dealt with as follows:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of the choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the end of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying section 79(4).
Before moving to a consideration of those steps referred to above, however, there are two further matters which in my assessment, need to be considered in relation to the law and its application to the evidence in this case. Firstly, as identified when commenting upon the evidence, the husband has failed to have various witnesses available such as Mr D and Ms S, who he said would support his case.
If, as suggested by the husband, the evidence of those parties as well as, for example, the “arms-length purchaser of the Property J property” was to be of some assistance, then it would be expected that they would be called. The fact is, however, that the husband had the opportunity to call evidence from these persons.
I am obviously mindful, therefore, of the decision of the High Court in Jones & Dunkel (1959) 101 CLR 298, where, what is commonly referred to as, the rule in Jones & Dunkel was enumerated. The rule can be expressed as follows:
(a)The unexplained failure by a party to give evidence or to call witnesses or to tender evidence or produce particular material to an expert witness may, not must, in appropriate circumstances lead to an inference that the uncalled evidence could not have assisted that party’s case.
(b)The rule can operate against parties not bearing the burden of proof and parties that do bear it as well.
(c)The appropriate circumstances exist where it was within the power of the party to tender the evidence that was not tendered and led to the suggested inference being drawn. Then an adverse inference can be drawn.
Having made the very serious findings in relation to the truthfulness of the husband, I am inclined very much to the view that the failure to call those witnesses leads to the direct inference that them not being called is because the husband could not rely upon their evidence to actually assist his case.
Additionally, I am aware of the line of authorities relating to the course to be taken by a court in circumstances where it finds that a party has failed to meet their duties to make full and frank disclosure. I am mindful, in particular, of the decision in Black & Kellner (1992) FLC 92-287, which specifically commented upon the duties of parties involved in property proceedings to make full disclosure of their financial affairs, and if a court is satisfied that it is established that there has been a deliberate non-disclosure, then the court should not be, “unduly cautious about making findings in favour of the innocent party.” The court went on to note that, “To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.”
Clearly, it is a factor that looms large in relation to this matter, because, as I have indicated, I am not at all satisfied that the husband has made any genuine attempt to provide disclosure, or to have those witnesses available, who might necessarily have been able to support the contentions that he raised in justifying the actions that were generally taken by him in relation to these proceedings. I shall address those issues during the discussion of the evidence and its application to the law.
DISCUSSION:
It is necessary to firstly identify and assess the assets of the parties. That includes an assessment of both the property and its value, as best that can be assessed, along with the liabilities attaching to those assets. As I have indicated, the difficulty here is that disclosure has been minimal and, in fact, the husband has determinedly set out to provide limited, if any, information or to actually mislead. It is understandable then that the property pool sought to be identified on the part of the wife is difficult to quantify.
The best in the circumstances that could be suggested as to the current pool is that it has a value of about $65,000. That is made up as follows:
| Property B | $90,000 |
| Liability | 72,000 |
| Equity | 18,000 |
| Wife’s (omitted) Mazda | 1,500 |
| Husband’s Range Rover | 2,000 |
| Husband’s Holden Rodeo | 5,000 |
| Husband’s Camper Trailer | 5,000 |
| Husband’s business – (omitted business) | Unknown |
| Husband’s and Wife’s Bank Accounts | Minimal |
| Funds retained in Roberts Nehmer McKee Trust Account | 44,000 |
| Wife’s credit card debts | 10,500 |
| Husband’s credit card equity/debts | Unknown |
| Husband’s and Wife’s Superannuation | Unknown |
The wife, as indicated previously, sought a distribution in her favour of all available cash held in the trust account of Roberts Nehmer McKee, as well as a further sum of $57,250. That was calculated as reflecting approximately one half of the value of the assets that could be assessed, at the time of separation. There is of course no power available to the court to speculate to that extent, though there is a discretion with regard to whatever distribution might be able to be properly effected.
As best I am able to assess, the equity in assets available for distribution is $65,000, though I would specifically record that I have an expectation that the husband has secreted significant amounts of money and assets away and, for example, will quickly re-establish his business upon the conclusion of these proceedings.
Before moving on to any consideration of contributions by the parties, it is necessary, as required following the determination of the High Court in Stanford (supra), to determine whether circumstances exist such that it is appropriate to make an order adjusting the property interests of the parties. It is perhaps unnecessary to say more than the parties no longer live in a marital relationship and there is not now, and never will be, common use by the parties of what property or assets remain. These parties are now at war and it is clear that it is not only just and equitable, but essential that a property settlement be ordered.
The second step is to assess the contributions of the parties. Again, because of the paucity of evidence available and the very different positions taken by each of the parties, it is difficult to assess the levels of contribution, either financial or non-financial. In many cases where the evidence of one party, in this instance the wife, was to be as troubling as it appeared, there would be a real inclination to accept the position of the other party. But here such a luxury is not available as the husband’s evidence is virtually unbelievable and the only inference that can be drawn is that he would say and do anything to avoid not simply a just and equitable distribution of property between he and the wife, but to in fact avoid any distribution to be made to the wife.
In the circumstances, other than to say that the evidence suggests that the parties were in a relationship of approximately 14 years, though the husband even seems to debate that, and that neither brought a great deal into the relationship little more can be assessed. In the circumstances, particularly when noting that the evidence of the husband is so difficult to accept, I am left in a position of simply having to accept that the parties contributed during the relationship as best they could, though in different ways, be they financial or non-financial, and that the contribution therefore was equal.
Subsequent to separation however, very different considerations arise. The only proper finding is that the husband has determinedly set about to transfer and/or hide assets and to reduce the property pool as much as he could. He sought to involve others, including Mr M, but that in the end even those whom he sought to rely upon were unable or unwilling to assist his case. Whilst it is difficult to assess what might be the post-separation contributions, like the difficulties with regard to actual assessment of the assets, I am inclined to the view that there needs to be a significant weighting in favour of the wife.
It is impossible to quantify how any specific determination might be made but I am satisfied that an assessment of at least a further 25 percent contribution by the wife is appropriate. In the circumstances therefore, I am satisfied that the proper figure to consider in relation to contributions by the parties is 75 percent in favour of the wife and 25 percent in favour of the husband.
The final steps to be considered, the prospective element of any determination, are those matters which arise pursuant to the provisions of section 75(2) of the Family Law Act. Those matters generally have greater significance where one party or the other might have responsibility for the care of a child or children under 18 years of age, or responsibility for the support of another. It is also significant where there is evidence relating to real differences in the state of health of one or other of the parties, and therefore its consequences for future employment. There is little evidence, as well as little of significance in that regard.
The major matter to be taken into consideration pursuant to the provisions of section 75(2) relates, in my assessment, to the unknowns that arise and the inferences that should be drawn in relation to the husband. As indicated, I am very much of the view that the husband’s business, (business omitted), will re-establish itself shortly after the conclusion of these proceedings and that the husband will have, as he did previously, a business which provides income and support for him. Additionally, there is the overwhelming inference to be drawn that the husband has other undisclosed resources.
As I noted earlier in these reasons, previous decisions of the courts have suggested that a court in hearing a matter such as this should not be, “unduly cautious about making findings in favour of the innocent party”. In those circumstances, I am satisfied that the overwhelming indication is that a further adjustment should be made in favour of the wife of at least a further 10 percent.
Accordingly, as best it can be assessed upon the evidence available and following the findings made, an appropriate settlement based on the known assets of the parties would be reflected in a distribution of 85 percent in favour of the wife and 15 percent in favour of the husband.
The orders that are detailed at the commencement of these reasons then reflect as best it can be done in the circumstances, a just and equitable distribution of property between the parties and perhaps most significantly a finalisation of the financial relationship as between the two.
The orders of the Court will be as detailed at the commencement of these reasons.
I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Coker
Associate:
Date: 5 November 2015
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