Balbosa & Debrino
[2021] FCCA 751
•22 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Balbosa & Debrino [2021] FCCA 751
File number(s): DGC 89 of 2019 Judgment of: JUDGE BURCHARDT Date of judgment: 22 April 2021 Catchwords: FAMILY LAW – Property – tumultuous relationship lasting off and on from 2009 to 2017 – wife seeking 100% of property pool on basis husband made no contribution at all – husband seeking 30% of pool but including add back of $127,000 transferred to Country B by the wife – court satisfied that $127,000 represented genuine repayment of debts – wife clearly making for greater contribution and having significantly greater future needs – husband to receive 15% of the non-superannuation pool – equalisation of superannuation just and equitable. Cases cited: Stanford & Stanford (2012) 247 CLR 108 Number of paragraphs: 112 Date of hearing: 18 & 19 March 2021 Place: Dandenong Advocate for the Applicant: Mr Connell Counsel for the Respondent: Mr Duckett ORDERS
DGC 89 of 2019 BETWEEN: MS BALBOSA
Applicant
AND: MR DEBRINO
Respondent
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
22 APRIL 2021
THE COURT ORDERS THAT:
1.The parties are to confer and forward a minute of orders (if agreed) or proposed minutes of orders (if there is disagreement) to reflect these reasons for judgment within 7 days.
2.In the event of disagreement, the matter to be listed for oral argument on a date to be fixed.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Balbosa & Debrino is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT:
Introductory
This is a property dispute in which the applicant wife seeks 100 per cent of the property pool save that she concedes, if I understand the matter correctly, that the husband should retain his superannuation. The husband seeks 30 per cent of the property pool and his position in respect to superannuation is to support an equalisation. The pool consists of the equity in the former matrimonial home and an alleged addback of $127,000 sent by the wife to Country B.
I should say at the outset that the resolution of the matter is, very regrettably, made all the more difficult by the transparent and significant dishonesty shown by the parties in their dealings in respect of statutory benefits and migration authorities from time-to-time. I warned the parties twice that if this matter went to judgment I would be referring the matter to the competent authorities and I will be forwarding a copy of this judgment, via a registrar of this Court, to the relevant social security and immigration authorities.
For the reasons that follow, in my opinion, the husband should receive 15 per cent of the net equity in the former matrimonial home and there should be an equalisation of superannuation but that otherwise the pool should vest in the wife.
Agreed or Uncontroversial Matters
The wife was born in 1971 in Country B and lived there until 1995 when she came to Australia. She obtained permanent residency in 2000 and has three children, Mr C, born in 1997, Ms D, born in 1999, and Ms E, born in 2002. It appears that Mr C was not, in fact, the child of Mr F but of another gentleman who is still paying adult child support. The wife receives child support in respect of Ms E of $35 a week.
The husband was born in 1969, I presume in the Country G. Following the wife’s separation and divorce in her second marriage in 2007, she met the husband online and, it would appear, he may have visited Australia briefly in 2007 and 2008. More importantly, in 2009 he came to Australia on a tourist visa, and marriage took place in 2009. The husband became a permanent resident in 2012.
At the commencement of the relationship the wife was working as a customer service officer and the husband may have received some benefits from Country G but did not work until 2010. The parties lived in a property that the wife then owned in Suburb H which was essentially purchased by her out of receipts from the settlement arising from her earlier marriage.
The parties moved out of the Suburb H property in 2015 into a property at J Street, Suburb K – which was where they rented from 2015 to 2016. In 2015 the parties bought, albeit that it was in the husband’s name alone, some land in Suburb K upon which they subsequently built a house. The land was bought in 2015 for $278,000, substantially through a mortgage, and subsequently a build took place at a cost of $307,280. The husband borrowed $180,000 towards the land and $288,000 towards the build. The wife has asserted that she advanced $15,445 towards the land and $91,835 towards the building. These were achieved by extending the mortgage on the Suburb H property. The building was completed in 2016 whereupon the parties moved in. Final separation took place in August 2017.
The property in Suburb H was sold for $455,000 in September 2017 and gave $157,000 clear proceeds. Of that amount, $127,000 was sent to Country B in circumstances that are, to an extent, the subject of dispute albeit that the amount being transmitted is not.
In 2013 the wife was riding a motorbike driven by the husband when an accident took place. She blames him and he says it was not his fault but, more importantly, the wife has had some four operations and endeavours to assist her since then and still suffers a debilitation as a result.
The husband has deposed – and this is not of itself controversial – that he cashed in some $50,000 arising out of his work in Country G which produced a net total of $37,297.93 when it was transmitted to Australia in 2010. The then exchange rate was about 1.1 and this would have been worth approximately $41,000 Australian.
Thereafter things become much more a matter of disagreement. There is vivid argument as to who contributed how much to the parties’ living expenses, an interrelated argument as to the extent to which the husband was working while he was in Australia, and there are competing assertions of significant family violence. These matters are largely best addressed by concentrating on what was said at Court.
The Parties’ Affidavits
I have, of course, read and had regard to all the materials the parties have filed. Their affidavit materials are prolix and overdetailed and, in many ways, not entirely helpful. This is as much the case with those of the husband which were created without the benefit of legal assistance as of those of the wife. A few points do emerge, however, that are worth noting.
In her first affidavit filed 16 January 2019 the wife deposed at paragraphs 27 - 31:
I kept about $30,000 of the proceeds of the Suburb H property sale and I used to rest to repay debts that I had to my aunt, Ms L. The debt amounted to about $127,000.
Ms L provided me with financial assistance as I was going through my first marriage break-ups and divorce.
The debts to Ms L were debts which accumulated over a period of time from around 2003 to about 2007. My family’s shop in Country B and my brother’s house in Country B were used as security by Ms L for repayments of the debts to Ms L. I visited Country B on or about 2003, 2005, twice in 2006 and 2007 and I obtained the loaned cheques at this time.
On 4 September 2017, upon the settlement of my house in Suburb H, I repaid the debt I owed to Ms L.
The wife also deposed that she had commenced to pay the rent in the property at Suburb K from May 2018 onwards and deposed to an intermittent work history on the husband’s part and deposed that he had, from time-to-time, been in receipt of Newstart.
The husband’s first affidavit, filed 4 April 2019, asserted that the wife had taken his work money (as I shall describe it) to Country B (paragraph 12). At paragraph 20 he deposed, and I confess I found this admission surprising:
Throughout the course of our marriage I would use different addresses so applicant would not lose Centrelink benefit. She continued to push the issue and called me on my way home from work angry with me and yelling because I was late to meet her at Suburb K to set up said lease. Against my better judgment I went through with it.
The husband’s affidavit raises allegations of infidelity on the wife’s part which are repeated and, indeed, both parties make such allegations but, in my view, they are irrelevant.
In his second affidavit, filed 7 December 2019, the husband deposed to separation in August 2017, that he had returned to the Country G in December 2018, and was then earning a salary of $1,000 per week. He deposed that the wife had ceased work after six months of the commencement of the relationship in 2009 and not worked thereafter.
In her next affidavit, filed 15 July 2019, the wife described the relationship as being only for two to three years. They were said to have separated under one roof in 2010 and she had made a Centrelink application on the basis of separated under one roof. She deposed that the husband lived in a garage, that they reconciled in 2011 and then separated under one roof again in February 2012. She deposes to a serious incident of violence in September 2016 during which the husband threw a TV at her and final separation on 6 August 2017. She deposed that the husband had abstracted his work money to himself. She deposed at paragraph 20 to an intermittent pattern of work on the husband’s part at various periods during the relationship.
In her affidavit filed 22 January 2020 the wife deposed to the motorbike accident in 2013 and the up to four surgeries culminating on 14 October 2019, with her difficulties not yet resolved. She deposed to studying allied health care.
At paragraph 19 the wife said:
We separated under the same roof in 2010 as Mr Debrino started to verbally abuse me and was violent. Mr Debrino lived in a converted garage. The costs of the renovations were paid for from Mr Debrino’s bank account and funding I borrowed from Ms L, an overseas friend.
It is to be noted that where Ms L was described as an aunt in the earlier affidavit, she now becomes an overseas friend. The loans are now said not to have been to help her during her earlier marital separation but to fund the renovations associated with the separation under one roof.
The husband’s affidavit of 2 June 2020 gives his income in the years 2010 to 2018. With the exception of a lower figure in 2010 when he was presumably prevented from working by his visa status, the wages earned are all not less than $30,000 and as much as $67,000. He deposed to paying the mortgage on the Suburb K property on 2 April 2018. He also deposed to an incident (paragraph 63) where, in 2012, November 2012, the wife stuck a steak knife through her hand, something essentially admitted in the wife’s later affidavit.
The wife’s affidavit of 22 December 2020 deals at paragraph 33 with the husband’s worker’s payout. In the light of the evidence given at Court it is worth setting out some of what it says. The wife said:
I disagree with the content and say that the Respondent did receive a payout from the Country G but, again, he spent it on cars, his laptop, three desktop computers, which he took, security cameras (the Respondent took the hard drives so the cameras are useless), phones and a motorbike and other needs that he supposably could not do without.
What is to be noted here is that there is no mention of gambling.
At paragraph 36 the wife deposed:
I say that I agree with the content and say that I did arrange for family portraits to be taken and I also did so with my first husband (annexed and marked 15). The Respondent was very keen for this to occur as he said it would help with his permanent residence application. It would be able to present us as a ‘happy family’, which we were anything but. We didn’t ever celebrate our wedding anniversaries as the relationship was ‘the marriage from hell.’
The wife did, in this affidavit, traverse, albeit briefly, the questions of the husband’s alleged gambling. At paragraph 77 she deposed:
The Respondent made mortgage payments solely with funds provided to him by me and my children. His gambling habit did not leave him with anything that he earned in order for him to contribute. He did win once and I annex a copy of the cheque (Annexed and marked 26), but his losses were massive. He would always be short of money and I could not understand where it all went until I discovered his gambling.
At paragraph 94 the wife returned to this matter and deposed in relation to some telephones:
He told me that he had purchased them outright as Christmas gifts for the children. I should have known that he would not have that sort of money. He gambled too much and the outstanding debt that he left was nearly $5000.
It is not necessary to traverse the various valuation affidavits that have been put on but I note that Ms D filed an affidavit affirmed 20 December 2020. This takes issue with the husband’s assertions which I have not otherwise traversed as to his contribution as a stepfather and roundly asserts that:
When the applicant was in a relationship with my mother, our home was always a hostile environment. He was always angry and swearing about something.
She denied that the husband had at any time behaved like a stepfather and, perhaps rather sadly, asserts:
When my Mum finally threw him out for good, it was the happiest day of my life.
The Evidence Given at Court – The Wife
What follows is taken from my notes.
Counsel for the wife made the briefest of openings. He asserted that this was a property matter in which the husband had made little, if any, contribution. The wife was called an adopted her affidavits as true and correct.
Under cross-examination it was put that there was a de facto relationship from late 2009 until late 2017. The wife said yes it was an on and off relationship. It was a tumultuous relationship. She agreed that they married with a celebrant in a civil marriage in 2009. The celebrant was Country B church member. At the marriage there was only one witness and her parents and children. They registered the marriage with the Australian authorities. She had filed for divorce in 2013, 2015, 2016 and 2017 but the husband refused to sign. There were arguments almost every day and they mostly slept in separate rooms.
The husband had been given a key to another place to live in Suburb M by a church friend. In 2010 he got the key to the house in Suburb M and then he got another key to a place in Suburb N. He would go away for two weeks, or one week, but he always came back. She had been ashamed to mention this in her affidavits.
It was put to her that they usually went to church as a family unit every Sunday. In 2011 they moved to a church close to her house and Mr Debrino always came with her. They often went to church in separate cars because her children did not want to be in the same car.
The wife was cross-examined about annexure “-9” to her affidavit of 20 January 2020. This was a document submitted to Centrelink. The form said they were separate, but they were living under one roof. It was put to her that she had filled out the form. She said:
This one was 2010 and was in Mr Debrino’s handwriting.
Item 11 suggested that they did not share a bedroom and there was no intimacy. The wife said they separated, and she was then in a separate room from the husband.
It should be noted that whoever filled it out, and the husband was not cross-examined about the handwriting on the document, it certainly purported to be a document filled out by the husband. The wife is referred to in question 1 as the “other person”.
The wife said they were not talking much. If she was ill the husband took her to the doctor. Mr Debrino lent her money. She took him to the doctor too as he had no family in Melbourne. She agreed with item 39 on the form which suggested that regular associates would regard them as a couple and said that was truthful at the time but their friends did not know they had a lot of problems and fighting. Mr Debrino did not have permanent residence at the time. Friends thought they were a de facto relationship in 2010. She had not let her family know that they were living separately in different rooms.
I should interpolate and say that it is clear beyond doubt to me that there has been fraud on Centrelink. At item 46, relating to access to each other’s accounts, had ticked the “no” box. I.e. they had no access to each other’s bank accounts. In evidence, however, when asked if they had ever shared a bank account the wife said yes in in 2009 or 2010 until 2012 from what she remembered. After Mr Debrino got permanent residence they stopped the account.
Item 60 suggested that food and housekeeping was split. The wife said he used his money and she used her money. She did the shopping and she did the cleaning. Mr Debrino washed his own clothes and she did the rest. She washed his clothes also when his work clothes were dirty. It was put that they had shared the gardening. The wife said he parked in the parkway and she asked him to fix the area where he parked. He did general maintenance. He is very good with electricity, but he does not have a licence. There were minor renovations to the house, and he taught her. He also taught her how to plaster.
Counsel asked about item 78 on the form. This noted that the other person contributed to the financial support of the children. She said:
I ticked “yes” but I have to pay back his credit card.
Her children were very good swimmers and her son competed in trials in Country B. She said her three children were 23 and a half, 21 and 19 next month. All of them were swimmers in 2009. They did one and a half to two hours in the morning and two hours between 4 and 6 pm although I note that the wife indicated that this was not constant. It merely represented the maximum ever achieved. The children ceased swimming in 2016. In 2009 it was two hours twice per week and ramped up as they got older.
The wife confirmed, in relation to annexure “-10”, that it was her signature on 9 February 2012. She lodged forms in 2010 and 2012 but there had been a reconciliation in 2011. This was another Centrelink document which showed the husband as a partner but, once again, showed at item 3 that they were separated. Inter alia it is said at item 12:
We are not talking much.
The wife was cross-examined about paragraph 29 of this affidavit in which she said the parties were together for two to three years. She said they were together for two to three years combined. There was a lot of fighting. They had sexual relations once or twice a year. One week after the marriage they were fighting. There was violence and she was confused. It was put that they lived together for eight years and she said on and off. Her friend had given him a key for another property.
Counsel traversed paragraph 30 of the affidavit in which it was said that they discussed attempting to reconcile in December 2014. The wife said her problem with her first husband’s property settlement ended in December 2014. There was no payout from Mr O; just a transfer of superannuation.
The wife then was asked about an incident in June 2014. She said that Mr Debrino assaulted her. He sat on her chest and punched her breasts and choked her.
I should interpolate to say that this evidence was given with conviction and I believe it.
She was aware that the husband denied the violence but said it happened.
The wife was cross-examined about stabbing her hand. She was depressed because her son was running away because he wanted to get away from the husband. She stabbed her hand and went to hospital and after that went to her GP. She was in hospital for three days.
It was put that the husband bought land in 2015. The wife, who often failed to answer simple questions directly, said that in 2014 she had looked to rent in Suburb K, and he wanted to come too. She has lived in the matrimonial home since 2016. She was taken to paragraph 28 of her affidavit of 21 January 2020.
In December 2014 Mr Debrino tried to buy the house. It was closer to the kids’ swimming and closer to his work. They went and looked. Mr Debrino liked the property because it was a big block, but the house was very small with only two bedrooms. Mr Debrino could not get finance as he had no deposit.
In December Mr Debrino needed a deposit for land. She contributed nearly 20 per cent of the land and refinanced from Suburb H. She transferred the funds and gave a cheque to Mr Debrino. She gave about $78,000 extra for the house. She agreed that the land cost $225,000 and the house $346,000. The mortgage was in the husband’s name only and still is. It was put that this was because she was unemployed. The wife agreed with this but said she contributed financially.
An answer she gave about child support from her first husband was, I regret to say, at first incomprehensible. Her first son was with one father and her second two children were with Mr O. She obtained child support from both fathers and otherwise was in receipt of government benefits.
The wife said she is now doing a diploma in allied health.
The wife said the funds that she provided to purchase the property in Suburb K came from refinancing Suburb H. It was put that she had put forward this money because she was in a relationship with Mr Debrino. She said she moved to Suburb K because it was more convenient for the swimming practice of her oldest boy.
The wife said she had some superannuation before 2009, approximately $25,000. She had accessed two times, in 2009 and 2015. It was put to her that the 2015 withdrawal was to pay for IVF, and if I understood the answer correctly, it was in the affirmative. However, this procedure did not take long and involved injections in the tummy which were only for one week.
The wife agreed that the husband moved out in late 2017. On 5 August, he came to her crying and told her he did not love her anymore. When it was put that she sold the Suburb H property subsequently, the wife said it was already on the market in 2016 and sold in May to June of 2017. Certainly, it was about August. She received around $157,000, of which she retained $30,000. She sent $127,000 to Country B. Her mother’s cousin lived in Australia, and her mother had dementia. The conveyancing company sent the money to Country B. She told them to. When asked why, the wife said from 2002 to 2007, she had problems with her ex-husband and had to pay the Suburb H mortgage.
Taken to annexure “-10”, she said that her father is Mr P. There was a loan in June 2015 of $12,500. Annexure “-29” was a translation of the loan documents. It showed Ms L. Annexure “-29” was a translation of the loan document. There was a receipt from Ms L for $28,500 on 5 October 2003. The loan appears to show a certificate of shop owner’s security in the names of Ms Q and Ms Balbosa. Ms Q is the mother of the wife. A further loan of $11,000 on 30 January 2004 – of $11,000 – had a shop security from Ms R, who is the wife’s sister.
A further loan on 27 June 2005 for $12,500 had a further shop security in the name of the wife’s father, Mr P. A further receipt of $19,000 on 29 November 2005 has as security, the home of the wife’s eldest brother. She confirmed that taken together, the loans amounted to $127,000. The wife said that when her father passed away, she gave a cheque to her cousin which repaid all the loans. It was put that the four debts were not hers. The wife said her mother borrowed from her mother’s cousin, and so did her brother and her sister. She went on to explain that the properties that were mentioned as securities could be sold out by the lender, thus causing her family to lose their shops and home.
I should interpolate that although much of the evidence about these loans was difficult to understand, this aspect of the evidence was given with conviction and accords with the terms of the loan documents, and to that extent at least, I accept it.
The wife said she came to Australia in 2000. Her first husband left in 2002, and she was stressed and needed money.
The wife agreed that she put in $45,000 for the Suburb K land, and $52,280 for the build. She said she gave Mr Debrino a cheque for $78,000. She thought the total of $97,280 was correct. They moved out of Suburb H in February 2015 and moved into rental property under her name only. They were there for 14 months, and then moved to Suburb K. The wife conceded she had invested in Suburb K because they had tried reconciliation and talked about it. She leant him some money. They had a big fight in May, and she asked him to give the money back. The IVF was a few months later.
The wife was taxed with the husband’s affidavit about his work and said she had said what she remembered. She denied that he was employed throughout. He was unemployed between 2011 and 2012 and was not working 2013 also. When it was put that the husband worked during the majority of the relationship, the wife said not really. In 2011, he quit in October, and went back to work in August 2012. She was asked if he had contributed his Country G worker’s payment and agreed. She agreed that this was USD $46,617. He had showed her what he had received, but she had not asked him to. It was put that she had taken a large portion of these funds to Country B. Her answer was hard to follow (as were many) but appeared to suggest that she had taken $5,000 because her father was in hospital. She then went on to say that the Country G money was not used for the household. The money for the 2010 renovation of Suburb H was borrowed.
The Suburb H properties had a mortgage of about $170,000-$180,000 in 2009. The property was worth $220,000-$230,000, and therefore had about $40,000 equity at that time.
When asked what she had done with the $30,000 surplus of funds from Suburb H, the wife said she had spent on bargaining and the backyard.
Payment then moved to what were described as homestay payments. I found the answer incomprehensible. It appeared that her children, or at least one of them, may have received some form of payments in child support, which were paid as homestay for the mortgage. I emphasize, however, that this is doing the best I can with answers that I found impossible to fully appreciate.
The wife confirmed that Suburb K is a six-bedroom property, and the three children live with her. She has tried to rent to students, but none have stayed. When asked why she had obstructed valuers from seeing inside the property, the wife said in 2019, she was in hospital. It was put that the reason there were no photographs of the inside was because they would show that there were boarders there. The wife said her daughter was sleeping and was not well, and she had told the valuer this. She showed all the bedrooms, and the valuer looked in every corner.
When asked about her income of $2,962 disclosed in her financial statement of 15 July 2019, the wife said she was receiving adult child maintenance in respect of her eldest son, which was still going. She was unable to say what the ANZ mortgage now is, because she cannot access it. When it was put that Mr Debrino had paid the mortgage for nine months after moving out, there was no meaningful answer. She has seen Mr Debrino’s new fiancé on Facebook. She pays the mortgage, but the husband is the sole person on the mortgage. When asked about her prospects of refinancing, the wife said she believed she will get a job. There are a lot of jobs for healthcare. NAB have a special 1.8 percent interest rate, and she can finance with her kids. It was put that she would be able to re-access the $127,000 back from Country B, but she denied this.
In re-examination, the wife confirmed each of the loan payments described in “-19” were received by her. She confirmed that the house renovations were done by her and her kids.
The Opening and Evidence of the Husband
Counsel for the husband opened the case. The respondent’s case is it was a de facto relationship for eight years. It was tumultuous, but there was still a relationship. The parties cohabited throughout. There were joint contributions to household expenses, and they moved out of Suburb H and rented for 14 months. Then, they purchased the Suburb K property where the wife lives with the three children. The husband put in his own worker’s superannuation. This was comparable to the equity in the Suburb H property at the commencement of the relationship. The initial contributions were described as being on par. The husband worked for periods of six months. The mortgage of Suburb K was based on the husband’s income, and they would not have the property without it. He was the sole mortgagor.
Suburb H was sold, and $120,000 was sent to Country B one month after separation. This was an attempt to defeat the husband’s application. All were loans from family members except one three years after she came to Australia. The husband was entitled to the funds of the relationship. The equity in Suburb H went from $40,000 to $150,000 during the relationship. The husband is the sole person on the mortgage at Suburb K. The pool is $370,000, and he seeks 30 percent. The husband has $42,000 superannuation in Australia, and this needs to be equalised.
The Evidence of the Husband
The husband was called and adopted his affidavits as true and correct.
At this point, and by leave, further evidence was led in chief. The husband said his income is $52,000 per annum as a tradesman. The husband had managed to obtain documentation in relation to the two mortgages over the Suburb K property overnight, being one in respect of the land and one for the building. These were tendered as exhibit R-1 and show that the overall balance on 20 May 2018 was $289,000.
Under cross-examination, the husband was taxed with a promissory note in respect of Ms S, who is his mother. Surprisingly, he said he had not seen it. When asked if he had applied to other banks in respect of the mortgage, the husband thought that ANZ was the first, and he went through a broker. It was put that the documentation from the broker disclosed an income of $92,000. The husband said that was a lie. He agreed that they had got the home loan by diddling the bank.
The husband was cross-examined about annexure -8 to the applicant’s affidavit of 22 December 2020. Counsel traversed a number of cash withdrawals in mid-2015. He asked why the husband had made these withdrawals. He responded that “you should ask the wife” because she was using his card. He denied having a gambling habit and said that she was the one with the gambling problem. When asked about $13,000 withdrawn after September, he said he took out cash for her Motor Vehicle 1. When pressed about further withdrawals in October 2015, he said to counsel “this was your client with my card.”
The husband agreed that the wife asked him to leave on several occasions. He slept in the car one week. It was put that he had returned and lived in the garage. The husband said they had converted the garage so the girls could have one room each. She stayed with him in the garage. There was a loan agreement to purchase the Motor Vehicle 2. It was put that when he left, he left the wife $5,000 to pay, but he said this was paid off. He said there was $2000 left to pay, and he acquitted this as a Christmas present.
The husband agreed that he came to Australia with USD $2,500. He had to pay for permanent residence. He got help from the wife. He worked for company. When it was put that the wife was paying the mortgage since April 2019, he said he believed it was 2018. She would deposit it into the account to make it look as though he had money, and then withdraw it. He said she was good at transferring funds. In fact, there were no homestay payments ever made. He said you can call the deposits what you want. The Suburb H money (I assume the rent) went into his account. He said he would leave home at 4.30 am and come home at 7 pm. It was easier for her to pay.
It was put that the wife objected to the purchase of the Motor Vehicle 1 because she already had a car. The husband said she was using the Motor Vehicle 2. The other Motor Vehicle 1 was registered in her son’s name. The Motor Vehicle 1 was offered by the pastor of their church and she made no objection. She needed the use of the vehicles. He used the van to transfer tiles.
The husband said he had not paid rates. He then went on to say he was making payments on the rates until he moved out, but he never caught up. The cost of the children’s swimming was at times hard to pay. The mortgage was not in arrears when he left. He agreed that $12,054 had been deposited into his account, and said it was her money and he had not spent it. In 2010, he applied for Centrelink separated under one roof. In 2010, an application was made to Centrelink on the basis they were separated under one roof. He never really left. Nothing really changed. When asked if they had been in separate bedrooms, he responded, “How many days of the week?” He agreed the wife invested $170,000 into the Suburb K property. He agreed that he worked on the fencing. There had been a long-time dispute with neighbours, and he replaced the fence. It was not done by the wife’s ex-brother-in-law.
Some of the evidence was given at what might be described as a level of minutiae. He was asked if he had picked up one child from sports, and said that if he got there in time, he would pick him up. The husband denied that the wife had been permanently disabled by an accident he had caused. He said, “That is what she says.” They had a spill, but it was the other driver’s fault. When asked about the property in Country G being foreclosed by the bank, the husband said he was upside-down on it. He had moved to Australia and not paid the mortgage. As I pointed out to counsel in passing, this episode did not in any sense give rise to any tendency evidence.
In re-examination, the husband said he never moved out in 2010. They were not really separated. There was no sexual intercourse, but they still did things together. He was welcome in the home. There were disagreements. The wife refinanced Suburb H to buy Suburb K. So far as his income was concerned, he had three or four accounts. He closed the CBA account in 2010 or 2011. When they were living at Suburb K, his pay went into NAB for building, then transferred to ANZ to meet dispersements. It changed when Employer T started putting his pay directly into the ANZ. Homestay when into NAB.
Final Submissions by Counsel for the Husband
Counsel traversed the pool. There is a sworn valuation of $720,000 and a mortgage of $455,000 with a resulting equity of $264,000. The proceeds of Suburb H were transferred to Country B just after separation in the sum of $127,000, and the wife retained $30,000. The resulting total is $421,000. The credit card debts are attached to the husband’s affidavits. The values of the vehicles are nominal.
The husband seeks about 30 percent of the pool. The initial contributions were comparable. The husband’s work money was about $50,000. The Suburb H equity was similar. There was no evidence about the wife’s settlement from her first marriage. The husband worked throughout most of the relationship but had two periods of Centrelink benefits of six months. All of these funds were applied to the household. Suburb K is in the husband’s name. The mortgages are in his name. He inflated his income to get the mortgage. He solely paid the mortgage until February 2018, even after separation in September 2017. He looked after the children of the previous relationship. It was an eight-year relationship. His 30 percent was a very reasonable figure.
So far as future needs were concerned, the husband is employed. The wife has done almost no work in Australia. She has a diploma and will soon complete her allied health care qualification. The children are all adults, and the wife can work. The future needs are comparable. The outcome should include the proceeds of Suburb H because the debts in Country B arose after she came to Australia. If the $127,000 is not included, the husband would seek a different split to the same 30 percent value. He wants the mortgage removed. The wife has been in the property for the last three years.
Final Submissions of Counsel for the Wife
Counsel submitted the whole claim was basically on a fraud. The Court should distrust the husband’s evidence. He has had an enormous gambling problem, as shown by the cash withdrawals. There is no evidence the wife took it. The proceeds of Suburb H came from the proceeds of the property settlement with the first husband. The Country B loans were loans to her. They were secured. This was between her marriages. TAC say the wife is permanently disabled. The mortgages were taken out of Suburb K, and the Suburb H rent and the homestay went in. The homestay payments were real. The wife paid throughout. The husband was financially delinquent. He had not paid his mortgage in Country G. The wife made all the contributions. The husband’s $50,000 was spent on gambling. There were no positive contributions by the husband at all.
In reply, counsel for the husband sought to draw some inferences from the global financial crisis in 2007 and 2008 in respect of the husband’s non-payment of his mortgage, but in my view this matter goes nowhere.
Brief Findings about the Credit of the Witnesses
This is a case in which, unfortunately, it is not possible to avoid relatively significant criticism of the two witnesses. The wife’s evidence was in many ways very unsatisfactory. I pay proper regard to the fact that English is not her first language and she required to an extent the assistance of the interpreter. Nonetheless, despite her poor English, her answers were often evasive. It is quite clear that the parties have engaged between them in major Centrelink fraud. If I understand the matter rightly, the wife was in receipt of Centrelink, certainly from 2010 onwards, on the basis that the parties were separated under one roof when they clearly were not. They appear to have falsified documents to assist the husband in his permanent residence application. The mortgage funds obtained in respect of the Suburb K property were obtained by fraud. These remarks of course apply to both parties, but they speak volumes.
The wife would not answer questions directly, and indeed some of her answers were wildly non-responsive. Other aspects of her evidence were all but impossible to follow.
The husband was no better. Clearly, he has been conscious of the ongoing Centrelink fraud and, as he himself conceded, he obtained the mortgage for Suburb K by diddling the bank. That is one way of putting it. The more accurate way to describe this would be the obtaining of a pecuniary advantage by deception. True it is that he answered questions more directly than did the wife, something that might in part be attributable to his better command of English. But putting the matter shortly, I have seen and heard him give his evidence and I had no confidence that he was being truthful.
This was particularly the case in relation to the alleged gambling problem. It should be noted that no question, so far as I can recall the matter, was put to the wife to suggest that she had wasted money on gambling in any way. There are likewise no assertions in the husband’s affidavit materials. The wife had at least averted in part to this in her affidavits.
Both parties were manifestly eager to give as little away to the other side as possible and were straining in their answers to cast as much mud on each other as they were able.
Stanford & Stanford (2012) 247 CLR 108 (“Stanford”)
The Court’s first task is to determine the legal and equitable properties of the parties and determine whether a property adjustment is just and equitable. The husband seeks 30 percent of the pool including the moneys transferred to Country B, or an outcome in the same dollar amount if those are not included, together with an equalisation of superannuation. The wife seeks that the husband receives none of the property pool but did not in terms oppose an equalisation of superannuation. Thus, at least to the extent of an equalisation of superannuation, it is plain that the parties seek that there be an adjustment to their property interests, and it is plainly appropriate that there be one. Whether the husband should obtain anything out of the pool is an issue that must be addressed through the three-step process, although it should be borne in mind that methodologically, this aspect of the matter comes first.
The Pool
The pool has not been set out in terms in writing by either party, so far as I can see. Nonetheless, the final submissions made by counsel for the husband were not the subject of challenge. It would appear that any chattels or cars and the like are of zero value, and one is thus left with three assets:
(a)The value of the Suburb K property, $720,000;
(b)Funds transferred to Country B (disputed), $127,000;
(c)Balance of Suburb H sale $30,000;
(d)Husband’s superannuation, estimated $50,000, wife’s superannuation minimal.
The parties’ debts are their mortgage in the sum of $455,000.
There has been some reference to credit card debts but, given the separation in 2017, it seems to me more probable than otherwise that these are post-separation. Counsel for the husband invited the Court to trawl through the numerous credit card statements annexed to his client’s affidavit, but this Court is not an accountant. I am going to omit these credit card debts in their entirety.
Contributions
Perhaps the first matter to deal with is the question of the relationship between the parties. They met in a meaningful way in 2009 and appear to have got married very rapidly thereafter in October 2009. The husband was in Australia on a tourist visa and ultimately obtained permanent residency, in part, it would appear, by the concoction of fraudulent documents. Both parties agree that this was a tumultuous relationship, and plainly it was. At least by 2010, the wife had applied for Centrelink benefits on the basis that they were separated under one roof. As I find, this was one of a number of relatively short, intermittent breakups that occurred in this tumultuous relationship. Nonetheless, the husband had not in any meaningful sense separated from the wife. He remained in the same household.
The evidence given by the two primary witnesses, of course, makes any kind of formal resolution of their disputation very difficult. Looking at the evidence overall, it seems clear to me, however, that the parties never separated in any kind of final way, but that the relationship inured for the period through to final separation in August 2017. The parties, and it would appear at times both of them, were in receipt of Centrelink. The husband well knew that the wife was receiving Centrelink when she should not have been. It is part of the sorry picture that emerges from this case overall.
It is clear from the unchallenged evidence of the wife’s daughter, Ms D, that the husband contributed very little whatever in the way of a step-parent role. I accept that the wife had the household to manage and the children to bring up, effectively on her own. The husband impressed me as a self-oriented individual who would be more concentrated on his own affairs than those of others. Nonetheless, and even bearing in mind an absence of sexual intimacy after some undefined point, the fact is the parties lived in the same household and their finances were to an extent comingled.
It was the husband’s lying application that enabled the parties ultimately to buy the Suburb K property, which they would certainly not otherwise have been able to buy.
I accept that the husband worked through most of the relationship, and I accept that he contributed his worker’s payment. This, as I said, seems to have amounted net to around about AUD $40,000.
I accept that the husband gambled at least some of these moneys away. While he sought to blame the wife, he had not put this on affidavit and she was not cross-examined to this effect. What I am quite unable to say, of course, is how much of it he gambled away on himself. Some of it, more probably than otherwise, must have leeched through to the benefit of the family, as plainly did his wages from time to time. The wife contributed her Centrelink payments and was in receipt of substantial child support and other statutory benefits. Plainly, they were both putting in throughout the relationship.
Given the husband’s relatively modest earnings, and the surprisingly large amounts of benefits and general income that the wife received, at least according to her financial statement showing an income of almost $3,000 a week, it is in my view far more probable than otherwise that the wife in fact contributed far more than the husband, who, as I repeat, is likely to have spent not insubstantial amounts solely for his own delectation.
Where the wife’s case fails utterly, in my view, is to suggest that the husband contributed nothing whatever. The suggestion that the entirety of the husband’s funds, both by way of capital and income, were dissipated on frolics of his own is just not made out. It ignores the critical role that the husband played in the obtaining of the Suburb K property, which it should be noted the wife was keen to say was one she was eager to obtain, because it suited her son’s swimming at the time. Plainly, the husband has made some contribution to the net outcome.
In these circumstances, it is in my view just and equitable that there be a property adjustment.
It is self-evidently necessary for the Court to calibrate the contributions the parties have made. This requires determination of the issue of the moneys sent to Country B.
As I have earlier commented, the wife’s evidence about the money from Country B was at times hard to follow. It is at first blush surprising that she felt it necessary so late in the piece to discharge debts that were apparently entered into between 2003 and 2007.
Nonetheless, the evidence about the nature of the securities given in Country B was, as I repeat, one area of the wife’s evidence that was given with conviction and which I accept. I accept that the $127,000 was remitted to Country B upon the sale of the Suburb H property to discharge debts which, if not discharged, were likely to impact in the most severe way upon the property interests of her family in Country B. I categorically reject the proposition that those funds remain, as the husband would have it, available to the wife in any way at all. The remaining $30,000 from the sale of Suburb H was, as I find, contributed to living costs and renovations.
Having made these findings, one has to calibrate the contributions of the parties overall. In my view, a fair calibration of the parties’ contributions is 70 percent to the wife and 30 percent to the husband. First of all, the wife already owned a property at the commencement of the relationship, albeit with not that great an equity in it. That equity increased throughout the currency of the relationship until the point of its sale. That increase was, of course, partly illusory because of the necessity to repay the debts in Country B. The husband’s contribution of his worker’s funds is heavily qualified by the fact that he has certainly spent a significant proportion of it on gambling. The wife’s income (she had virtually no earnings during the relationship as she only worked in its very early stages) was, it would appear, at all times substantially greater than that of the husband and was not dissipated, as I find, on matters purely to her own benefit.
I accept that she did the renovations with her children, save for the fence that the husband repaired. These are not areas susceptible of precise calibration – especially since, I repeat yet again, neither witness impressed me. As I say, however, I think taken overall, a 70/30 calibration is correct.
The Future Needs Issues
The husband is employed in Country G and little is known of his circumstances there. He earns $50,000 a year, which I took to be Country G dollars, which would of course be a rather larger figure in Australia. The wife may well be able to work but has significant health problems arising out of the motorbike accident. I am not in a position to find, as she might seek, that this was the fault of the husband, and indeed his evidence about that was one area of his evidence which was convincing. Nonetheless, she is plainly in ongoing pain, and her capacity to work will be to an extent, at least, impacted by these health difficulties.
Counsel for the wife suggested that TAC has assessed the wife as unable to work, but this runs contrary to her own evidence. In all the circumstances, it is most improbable that the wife will be able to earn very substantial amounts working as a carer, and I would assess a further 15 percent to the wife under this heading.
Just and Equitable
In all the circumstances, a result that gives the husband 15 percent of the non-superannuation pool and an equalisation of superannuation is indeed appropriate. It does the best the Court can to provide a just and equitable outcome in a case rendered very difficult by the poor quality of the witnesses’ evidence and the somewhat incomplete way in which the case has been handled by all concerned. I have not dealt with the issue of superannuation in any detail (and neither did the parties). It is sufficient to note that the vast bulk of the husband’s superannuation must have accrued during the relationship and the wife has none left. In these circumstances I think the equalisation is a just and equitable outcome.
I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 22 April 2021
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Jurisdiction
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Procedural Fairness
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