BALLANTINE & BALLANTINE

[2020] FCCA 1756

FEDERAL CIRCUIT COURT OF AUSTRALIA

BALLANTINE & BALLANTINE [2020] FCCA 1756

Catchwords:
FAMILY LAW – Property – long marriage – husband’s initial contributions – where wife suffers from ill mental health during relationship – consideration of application of Kennon – consideration of inheritances received during relationship and post-separation – section 75(2) factors.

Legislation:

Family Law Act 1975 (Cth), ss.72(1), 75(2), 79(2), 79(4), 90XT

Family Law (Superannuation) Regulations 2001 (Cth)

Cases cited:

In the Marriage of Hickey [2003] FamCA 395

Jabour & Jabour [2019] FamCAFC 78

Kennon v Kennon [1997] FamCA 27; (1997) FLC 92-757

Mallet v Mallet (1984) 156 CLR 605

Norbis v Norbis (1986) 161 CLR 513

Stanford v Stanford (2012) 247 CLR 108

Applicant: MS BALLANTINE

Respondent: MR BALLANTINE

File Number: AYC 105 of 2018

Judgment of: Judge Mercuri

Hearing date: 31 January 2020

Date of Last Submission: 31 January 2020

Delivered at: Melbourne

Delivered on: 17 July 2020

REPRESENTATION

Counsel for the applicant: Ms Dart

Solicitors for the applicant: Myers Family Lawyers

Counsel for the respondent: Mr Howard

Solicitors for the respondent: Keating Avery Solicitors

ORDERS

Amended pursuant to rule 16.05(2)(h) of the Federal Circuit Court Rules 2001 (Cth) on 21 August 2020

1. All previous orders are discharged.

2. Within 60 days from the date of these orders (“the date”), the husband pay to the wife the sum of $303,551 (“the payment”).

3. Contemporaneously with the payment:

   (a)the wife do all such acts and things and sign all such documents as may be required to transfer to the husband, at the expense of the husband, all of her right, title and interest in the real properties situate at and known as:

   (i)B Street, Suburb C in the Northern Territory being the whole of the land more particularly described in Certificate of Title Volume ... Folio ... (“the B Street, Suburb C property”); and

   (ii)D Street, Suburb E in the Northern Territory being the whole of the land more particularly described in Certificate of Title Volume ... Folio ... (“the D Street, Suburb E property”);

   (collectively, “the real properties”); and

   (b)the husband shall do all such acts and things and sign all such documents as may be required to refinance:

   (i)the Commonwealth Bank of Australia (“CBA”) Line of Credit into his own name; and

   (ii)the mortgages registered over the B Street, Suburb C property and the D Street, Suburb E property (collectively, “the mortgages”) into his own name; and

   (c)the husband shall otherwise be solely liable for and indemnify the wife against all payments and liabilities pursuant to and all apportionable rates, taxes and outgoings of or with respect to the real properties of whatsoever nature and kind.

4. In the event that the whole of the payment has not been made by the date, the B Street, Suburb C property be forthwith sold altogether out of Court (“the B Street, Suburb C sale”) and upon completion of the B Street, Suburb C sale, the proceeds of the B Street, Suburb C sale be applied:

   (a)firstly, to pay all costs, commissions and expenses of the B Street, Suburb C sale, including any capital gains tax payable consequent upon the B Street, Suburb C sale;

   (b)secondly, to discharge the mortgages and any other encumbrance affecting the B Street, Suburb C property;

   (c)thirdly, so much of the payment as is then outstanding together with interest thereon as prescribed by the Family Law Rules 2004 adjusted monthly from the date to the wife; and

   (d)fourthly, the balance then remaining, if any, to the husband.

5. In the event that following the sale of the B Street, Suburb C property and distribution of the proceeds of sale pursuant to order (4) above, the whole of the payment has still not been not been made, then the D Street, Suburb E property be forthwith sold altogether out of Court (“the D Street, Suburb E sale”) and upon completion of the D Street, Suburb E sale, the proceeds of the D Street, Suburb E sale be applied:

   (a)firstly, to pay all costs, commissions and expenses of the D Street, Suburb E sale including any capital gains tax payable consequent upon the D Street, Suburb E sale;

   (b)secondly, to discharge the mortgages and any other encumbrance affecting the D Street, Suburb E property;

   (c)thirdly, so much of the payment as is then outstanding together with interest thereon as prescribed by the Family Law Rules 2004 adjusted monthly from the date to the wife; and

   (d)fourthly, the balance then remaining, if any, to the husband.

6. Pending the payment or completion of the B Street, Suburb C sale and/or the D Street, Suburb E sale:

   (a)the husband have the sole right to occupy the real properties and during such right of occupation, the husband pay all instalments pursuant to the mortgages and all rates and taxes and like apportionable outgoings of the real properties as they fall due;

   (b)the parties hold their respective interests in the real properties upon trust pursuant to these orders; and

   (c)neither party encumber the real properties without the consent in writing of the other party.

7. Liberty is reserved to either party with respect to the terms and conditions of and execution of the B Street, Suburb C sale and/or the D Street, Suburb E sale.

8. The wife shall otherwise retain for her sole and exclusive use, enjoyment and benefit all other items of property (both real and personal and including choses-in-action and financial resources) in her name, possession and/or control, including but not limited to:

   (a)the funds held by F Conveyancing following the sale of B Street, Suburb C in the Northern Territory;

   (b)her 20% share in the property situate at G Street, Town H in the State of Victoria;

   (c)her 20% share of the proceeds of sale of the property situate at J Street, Town K in the State of Victoria;

   (d)her bank accounts and savings;

   (e)her Motor Vehicle 1;

   (f)the box trailer; and

   (g)her personal belongings and effects.

9. The wife shall be solely liable for and indemnify the husband in relation to all debts and liabilities in her name or attaching to any item of property which she is to retain pursuant to these orders, including but not limited to:

   (a)her Centrelink debt; and

   (b)any credit card debts in her name.

10. The husband shall otherwise retain for his sole and exclusive use, enjoyment and benefit all other items of property (both real and personal and including choses-in-action and financial resources) in his name, possession and/or control, including but not limited to:

    (a)his Motor Vehicle 2;

    (b)his Shares L;

    (c)funds withdrawn or received by the husband from his Super Fund M or Super Fund N accounts;

    (d)his bank accounts and savings;

    (e)the camper trailer; and

    (f)his personal belongings and effects.

11. The husband shall be solely liable for and indemnify the wife in relation to all debts and liabilities in his name or attaching to any item of property which he is to retain pursuant to these orders, including but not limited to:

    (a)the mortgages;

    (b)the CBA Line of Credit; and

    (c)any credit card debts in his name.

12. That orders 12 to 15 inclusive are binding on Super Fund N (“the Trustee”) as the Trustee of Super Fund N (“the Fund”).

13. Pursuant to section 90XT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the husband’s interest in the Fund, the wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount of $48,048 (provided that such base amount shall not exceed the value of the interest determined under section 90XT(2)) and there be a corresponding reduction in the entitlement of the husband to whom the splittable payment would have been made but for these orders.

14. That order 12 has effect from the operative time and that the operative time for such order be four (4) business days after the service of a sealed copy of these orders on the Trustee.

15. That the Trustee of the Fund, in accordance with the obligations set out under the Act and the Regulations, do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of the wife and make payment to the wife in accordance with these orders.

16. That there be liberty to apply to each party and the Trustee in relation to the implementation of the orders affecting the superannuation interest.

17. That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

    (a)each party be solely entitled to the exclusion of the other to all real and personal property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions and like chattels in the property being deemed to be in the possession of the husband);

    (b)monies standing to the credit of the parties in any joint bank account are to be divided equally and the account closed;

    (c)insurance policies remain the sole property of the owner/beneficiary named thereon;

    (d)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and

    (e)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

18. Liberty is granted to the parties to apply within seven (7) days if they identify any arithmetic errors in these orders, by arrangement with my chambers via email.

AND THE COURT NOTES THAT:

(A)Pursuant to section 81 of the Family Law Act 1975 (Cth), the parties intend that these orders shall, as far as practicable, finally determine the financial relationship between them and avoid further proceedings between them.

(B)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

AYC 105 of 2018

MS BALLANTINE

Applicant

and

MR BALLANTINE

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for orders adjusting the property interests of the parties who were married for 17 years, had three children and separated in 2015. 

2. For the reasons which follow, I have determined that:

   a)it is just and equitable for orders to be made adjusting the parties’ property interests; and

   b)such orders should result in the husband retaining or receiving 54% and the wife retaining or receiving 46% of the asset pool as determined.

3. I have prepared draft orders giving effect to these reasons and direct the parties to contact my chambers within 7 days if they identify any arithmetic errors in the proposed orders.  This is not an invitation for the parties to reopen their submissions on the substantive issues determined in these reasons. If no further submissions are received, the orders will be finalised immediately thereafter.

Background

1. I am indebted to the parties who filed a statement of agreed and disputed facts.  To a large degree, this confined the issues in dispute and the following summary is largely taken from that statement.

Agreed facts

Parties and relationship

1. The applicant wife was born in 1968 and is 51 years of age.  The respondent husband was born in 1959 and is 60 years of age. 

2. The parties were married in 1998 and commenced cohabitation on marriage.

3. There are three children of the relationship:

   a)Ms B, now 20 years of age;

   b)Ms C, now 18 years of age; and

   c)X born in 2004, now 15 years of age.

4. The husband also has a child from a previous relationship, Ms D, now 28 years of age who, as a child, lived with her mother and spent time with the husband on weekends and school holidays.

5. Prior to the parties’ relationship, the husband served in the armed forces and retired after a 21 year career in 1998.  He continued in the reserves for a further four years.

6. The husband was then employed on a full time basis as a professional for Employer E.

7. After the husband ceased employment with Employer E, the parties established a business called ‘F Company’ in 2005. 

8. The wife was employed casually and then on a contract basis until the birth of the parties’ first child.  She resumed work 6 months later and worked from 2002 to 2004. 

9. Between 2004 and 2006, the wife had a small home based business and assisted in the parties’ business.

10. The wife was hospitalised for a period of eight months in 2010. The wife’s health continued to deteriorate and she received a disability pension from 2011.

11. There was an incident on 25 July 2015 where the wife discharged a firearm at the parties’ home in Darwin.  Shortly after this incident on 31 July 2015, the husband and the children were granted a Domestic Violence Order against the wife.

12. The parties sold the business in 2016.

13. The parties separated on a final basis on 27 July 2015.  A divorce order was granted on 23 April 2018.

14. The parties separately relocated from Darwin to Town G in Victoria in 2017.

Contributions

1. At the commencement of the relationship, the wife had $11,000 in savings and superannuation of just over $6,000.

2. In 2000, the wife was gifted a 20% share in properties in G Street, Town H and J Street, Town K in Victoria by her parents, which she continues to hold.

Future needs

1. The wife:

   a)is a qualified tradesperson, but does not currently work and is in receipt of a Centrelink disability pension as a result of her longstanding mental health issues; and

   b)receives support from the National Disability Insurance Scheme (“NDIS”).

2. The husband was granted a Total Permanent Incapacity pension from the Department of Veterans Affairs in 2017.

3. All three children have continued to live with the husband following separation.  Ms B studied for her degree at P University in 2019 and lived in Town Q whilst studying.  She was due to commence a another degree in 2020. Ms C is employed as an apprentice and lives with the husband.  She attends TAFE and receives additional tutoring for dyslexia. X is attending R School and also receives additional tutoring.  The husband now receives educational funding support from the Department of Veterans Affairs for X and Ms C. X is athletically talented and additional expenses are likely to be incurred to meet her sporting and travelling commitments.

4. It is common ground that in 2017, the husband purchased a property at S Street, Town G (“the S Street, Town G property”) and the wife consented, albeit she says reluctantly, to the release of $410,000 which was being held on trust from the sale of the B Street, Suburb C property to facilitate that purchase.[1]  The wife gave evidence that the husband also withdrew approximately $180,000 from his Super Fund M superannuation fund to fund the remainder of the purchase.[2]

   [1] See paragraphs 44 and 45 of the wife’s affidavit sworn and filed 18 February 2019; see also paragraphs 60 and 61 of the husband’s affidavit sworn and filed 19 December 2019.

   [2] See paragraph 50 of the wife’s affidavit sworn and filed 18 February 2019 and paragraph 48 of the wife’s affidavit sworn and filed 18 December 2019; see also paragraphs 22 and 61 of the husband’s affidavit sworn and filed 19 December 2019.

5. It is also common ground that the parties bought and sold various properties during their relationship.[3]

   [3] See paragraphs 25 to 37 of the husband’s affidavit sworn and filed 19 December 2019.

Disputed facts

1. At trial, the following factual matters remained in dispute between the parties:

   a)the value of the assets owned by the husband at the commencement of the relationship;

   b)the number and duration of separations that occurred during the relationship and prior to final separation;

   c)the extent to which the wife contributed to the running of the business and the care of the family during the relationship;

   d)the value of the husband’s lump sum payment received on retirement from the Australian Defence Force (“ADF”);

   e)the amounts received by the wife in the form of gifts and inheritances during the relationship;

   f)whether the husband was controlling and manipulative towards the wife during the relationship;

   g)how the husband applied various payments he received during the relationship and post-separation;

   h)the amount each party contributed to medical expenses for the children;

   i)how the sum of $20,000 withdrawn by the husband from the Super Fund M ought to be treated; the husband asserts these funds were used for day-to-day living expenses and legal costs, whereas the wife asserts that the sum ought to be included in the asset pool and attributed to the husband in the overall property division;

   j)whether the husband has a gambling problem, and the relevance of such to any adjustment to the parties’ property interests; and

   k)whether a $3,000 ANZ credit card debt ought to be included in the asset pool for the parties to share equal and joint liability.

2. The husband also asserted that he improved the S Street, Town G property with his own post-separation income following its purchase and this is a further contribution by him which should be weighed in his favour.

Evidence

1. The applicant wife relied upon the following material:

   a)her amended initiating application filed 27 March 2019;

   b)her financial statement filed 5 March 2018;

   c)her affidavits sworn and filed 18 February 2019 and 18 December 2019; and

   d)the affidavit of Mr T sworn and filed 27 June 2019.

2. The respondent husband relied upon the following material:

   a)his second amended response filed 17 January 2020;

   b)his financial statement filed 19 December 2019;

   c)his affidavits sworn and filed 19 December 2019 and 17 January 2020;

   d)the affidavit of Mr U dated 17 January 2020;

   e)the affidavit of Ms D affirmed 1 and filed 11 July 2019; and

   f)the affidavit of Mr V sworn 31 January and filed 5 February 2019.

3. The wife, the husband and the wife’s brother, Mr T gave evidence during the trial and were subjected to cross examination.

4. At the commencement of the trial, further concessions were made and the parties advised the court of the following agreements:

   a)neither party had an income earning capacity and therefore the husband no longer pressed his claims that:

   i)the wife had earned money working at the Employer W;[4] or

   ii)the wife received a carer’s benefit in relation to any member of her family;[5]

   b)the Centrelink debt in the wife’s name would form part of the asset pool;[6]

   c)the husband had spent $18,650 on gambling;[7] and

   d)if both Northern Territory properties were sold in the same financial year, the capital gains tax (“CGT”) payable would be $1,000.[8]

   [4] Transcript page 2 at lines 44 to 45/

   [5] Transcript page 2 at line 45 to page 3 at line 1.

   [6] Transcript page 3 at lines 11 to 13.

   [7] Transcript page 3 at lines 19 to 24; Exhibits A and B.

   [8] Transcript page 4 at lines 21 to 23.

The legislation

1. Section 79 of the Act gives the court power to alter the interests of the parties to a marriage in the property of the parties to that marriage.  Subsection 79(2) of the Act 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.

1. Section 79(4) of the Act sets out the matters the court must take into account when considering what orders, if any, should be made for the alteration of the interests of the parties in property. I do not propose to set those out in full, but have had regard to them in considering this matter.

2. It is well settled since Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) that the proper approach to an application under section 79 of the Act is as follows:

   Section 79(2) provides that “[t]he 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) prescribes matters that must be taken into account in considering what order (if any) should be made under this section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under section 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.[9]

   [9] Stanford v Stanford (2012) 247 CLR 108 at [35].

3. Before determining by reference to the factors in section 79(4), what adjustment is appropriate, the court must first conclude that it is just and equitable to make an order adjusting the property rights between the parties.

4. The court went on to say:

   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 a 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 ending 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 s 79(4) (emphases added)
   

   [10] Stanford v Stanford (2012) 247 CLR 108 at [41]-[42].

   (footnotes omitted).[10]

5. In this case, the parties were married for a long period of time and have had three children.  The parties’ relationship has come to an end and they are each seeking orders of this court pursuant to section 79 of the Act. 

6. I am satisfied that in all of the circumstances, it is just and equitable to make orders adjusting property matters between them on a final basis. 

7. Having come to this view, I turn to the approach that the court takes in considering what orders are appropriate under section 79 of the Act.  In this context, regard can be had to the following comments of the

   
   

   High Court in Norbis v Norbis (1986) 161 CLR 513 in which Justices Mason and Dean said:

   Here the order is discretionary because it depends upon the application of a very general standard – what is ‘just and equitable’ – which calls for an overall assessment in the light of the factors mentioned in s.79(4), each of which in turn calls for an assessment of circumstances…[11]

   [11] Norbis v Norbis (1986) 161 CLR 513 at [4]; see also Mallet v Mallet (1984) 156 CLR 605 at [609].

8. The approach that the court generally takes in considering what orders are appropriate under section 79 of the Act, are aptly summarised in

   
   In the Marriage of Hickey

   [2003] FamCA 395. Essentially this requires the court to:

   a)identify the assets and the value of the assets in the property pool;

   b)determine the contributions made by each of the parties to those assets, both directly and indirectly and in financial and non-financial terms;

   c)determine whether any adjustment is required for section 75(2) factors; and

   d)in light of those findings, determine what orders for the division of property is just and equitable.[12]

   [12] Bevan v Bevan (2013) 279 FLR 1; (2013) 49 Fam LR 387; [2013] FamCAFC 116.

Issues arising in this case

1. Against this background, and having regard to the submissions made by the parties, the issues for determination in this matter are:

   a)What is the asset pool?

   b)What were the parties’ initial contributions at the commencement of their relationship?

   c)What financial and non-financial contributions did each of the parties make during the relationship?

   d)Has the wife established a Kennon argument?

Asset pool

1. The parties agreed that their joint assets and liabilities at the time of trial were as follows:

Agreed assets	Ownership	Value
Funds received by the husband by consent	Husband	$410,000
Funds held by F Conveyancing	Joint	$100,000
G Street, Town H VIC	Wife (20% share)	$62,000
J Street, Town K VIC	Wife (20% share)	$55,504
Motor Vehicle 1	Wife	$1,500
Motor Vehicle 2	Husband	$16,000
Shares L	Husband	$7,069
Camper trailer	Husband	$600
Box trailer	Wife	$400
Funds withdrawn from Super Fund N to pay legal fees	Husband	$20,000
Total agreed assets		$673,073
Agreed liabilities	Ownership	Value
CBA Line of Credit	Joint	($95,127)
CBA mortgage secured over B Street, Suburb C NT	Joint	($230,799)
CBA mortgage secured over D Street, Suburb E NT	Joint	($415,024)
Centrelink debt	Wife	($21,000)
Total agreed liabilities		($761,950)

1. The remaining assets in dispute are as follows:

   a)the value attributable to the parties’ property at B Street, Suburb C NT;

   b)the value attributable to the parties’ property at D Street, Suburb E NT; and

   c)the amount withdrawn from the husband’s Super Fund M which ought to be included in the asset pool.

2. In addition, the following liabilities were in dispute:

   a)the husband’s ANZ credit card which he says ought to be included in the sum of $3,000; and

   b)whether the anticipated costs associated with the sale of the NT properties, including CGT ought to be included in the asset pool.

Northern Territory properties[13]

[13] These properties comprise B Street, Suburb C NT (“B Street, Suburb C property”) and D Street, Suburb E NT (“D Street, Suburb E property”) (collectively, “the NT properties”).

1. On 25 July 2019, the parties entered into consent orders which provided, amongst other things, for:

   a)the parties’ properties in the Northern Territory to be sold forthwith; and

   b)failing agreement between the parties, the D Street, Suburb E property to be listed with a sale price of $470,000 and the B Street, Suburb C property at $560,000 (“the July 2019 consent orders”). 

2. The husband’s evidence, which I accept, was that the NT properties were unable to be sold pursuant to the July 2019 consent orders because:

   a)the parties could not remove the tenants without risking finance over those properties; and

   b)the properties were subject to damage and structural issues.

3. The husband annexed correspondence from his solicitors explaining why it was no longer ‘feasible’ to comply with the July 2019 consent orders with respect to the sale of the NT properties.[14]  In that correspondence, the husband’s lawyers advised that there were insurance claims made to rectify various problems with the properties, some of which resulted from cyclone damage in March 2018, tenant damage, earthquake damage and termite infestation.[15] 

   [14] Annexure AB-12 to the husband’s affidavit sworn and filed 19 December 2019.

   [15] Annexure AB-12 to the husband’s affidavit sworn and filed 19 December 2019.

4. The husband deposed to further evidence about these matters at paragraph 78 of his trial affidavit.[16]

   [16] See also transcript at page 44.

5. The husband obtained valuations of the NT properties on 18 July 2019.[17]  These valuations valued the B Street, Suburb C property at $520,000 and D Street, Suburb E property at $470,000.

   [17] Annexure B-13 to the husband’s affidavit sworn and filed 19 December 2019.

6. However, at trial, the husband sought to rely upon a further valuation of the NT properties obtained by him in December 2019.  The husband relied upon the affidavit of Mr U, who undertook a valuation of the NT properties on or about 24 December 2019.[18]  Mr U valued the D Street, Suburb E property at $440,000.[19]  Mr U stated in his report:

   [18] Although I note that the letter of instruction from the husband’s lawyers was dated 7 January 2020.

   [19] Annexure -1 of the affidavit of Mr U sworn and filed 17 January 2020.

   We have been supplied with a copy of a report from Y Valuations dated 13 January 2020 identifying a crack in the external timber verandah floor joist.  The report ascribes the damage due to an earthquake, with the poor original structure being a contributing factor.

   We have been supplied with a copy of the following quotes to carry out other repairs to the property:

   …

   The aggregate of these quotes is $47,280 although we are also advised that additional works would be required to fully rectify the building. 

   …[20]

   [20] Annexure -1 of the affidavit of Mr U sworn and filed 17 January 2020, at page 7.

7. The letter of instruction to Mr U stated:

   As mentioned, our client seeks current market valuations of each of the properties, taking account of their current condition and state of repair.

   …

   We further confirm this intended to update valuations earlier provided by you concerning these properties dated 12 July 2019.[21] 

   [21] Annexure -1 of the affidavit of Mr U sworn and filed 17 January 2020, at pages 21 and 22.

8. Similarly, in relation to the B Street, Suburb C property, Mr U assessed the value of the property on an ‘as is’ basis at $540,000.[22]

   [22] Annexure -1 of the affidavit of Mr U sworn and filed 17 January 2020.

9. The wife invited the court to reject Mr U’s valuations of the NT properties, and instead rely on the earlier valuations obtained in July 2019; however, she did not obtain her own valuations of the NT properties.  There is no other direct evidence placed before the court by either party as to the status of the insurance claims in respect of the NT properties. 

10. Moreover, the wife did not seek to cross examine Mr U as to whether:

    a)his valuation included the works which were the subject of the insurance claim; or

    b)the value of the NT properties might increase if further works were undertaken.

11. Accordingly, for the purposes of the asset pool, the most current evidence before the court as to the value of the NT properties is contained in the affidavit of Mr U.  Therefore, those are the valuations to which I have had regard in coming to my decision in this matter.

SUPER FUND M

1. It is common ground that the husband withdrew:

   a)the sum of $180,063 from his Super Fund M which was applied towards the purchase of the S Street, Town G property, and such amount is to be included in the asset pool; and

   b)a further $20,000 from the Super Fund M which he says was applied towards his living expenses. 

2. In relation to the $20,000 withdrawal, the husband deposed that this was applied towards ‘day to day expenses, truck hire, moving expenses, bills and the like.’[23]  It was submitted on behalf of the wife that this additional $20,000 should be added back into the pool.  The husband opposes this.

   [23] Paragraph 22 of the husband’s affidavit sworn and filed 19 December 2019.

3. It is also common ground that the husband deposited the sum of approximately $90,000 to his Super Fund M at the commencement of the parties’ relationship, from a lump sum payment received from his Defence Force Retirement and Death Benefit (“DFRDB”) entitlement.  This entitlement accrued to the husband as a result of his 21 years’ service with the armed forces prior to his relationship with the wife.   It was agreed that that initial sum grew to over $200,000 during the course of the relationship, without any further contributions by either party. 

4. The evidence in relation to the husband’s withdrawal from the Super Fund M is somewhat unclear.  The husband stated that after he sold the business in NT, he moved with his daughters to S Street, Town G in late January 2017, initially living with his parents.[24]  He further stated that:

   a)he and his daughters then moved into a rental property where they remained until 3 July 2017 when they moved to the S Street, Town G property; and

   b)he placed a $20,000 deposit on the S Street, Town G property from his ‘DFRDB Super Fund M account’.[25]  

   [24] Paragraph 58 of the husband’s affidavit sworn and filed 19 December 2019.

   [25] Paragraph 60 of the husband’s affidavit sworn and filed 19 December 2019.

5. This appears to be somewhat inconsistent with the evidence set out above that he applied the $20,000 from the Super Fund M account towards daily expenses.

6. In any event, I note that the husband has not provided any receipts or independent evidence specifying how he spent the $20,000 which he concedes he withdrew from his Super Fund M fund.

7. In circumstances where the husband has had the benefit of income totalling just under $3,000 per week compared to the wife’s $560 per week, there is no clear explanation given by the husband as to why he could not meet his expenses from this income, even accepting that he had the ongoing care of the children.  I am therefore satisfied that the entire $200,083[26] of the Super Fund M funds withdrawn by the husband ought to be included in the asset pool.

   [26] $200,083 = $180,083 initially withdrawn by the husband (and conceded to be added into the asset pool) + $20,000 further withdrawn by the husband.

Credit card liabilities

1. The husband also seeks the inclusion of an ANZ credit card debt to the value of $3,000 to be included in the asset pool.  His financial statement makes reference to two credit cards:

   a)An ANZ Visa card in the sum of $2,672; and

   b)A GO Mastercard in the sum of $6,763.[27] 

   [27] Paragraph 51 of the husband’s financial statement filed 19 December 2019.

2. The husband deposed that as at the date of separation, he and the wife each had a credit card and he repaid the wife’s credit card debt to the value of $24,381.[28]  He said that he used rental income and his pension to ensure repayments were met. 

   [28] Paragraph 63 of the husband’s affidavit sworn and filed 19 December 2019.

3. Whilst the husband referred to credit card debt generally, there is insufficient evidence that a debt of $3,000 which was incurred during the relationship remains outstanding. 

4. The husband has therefore not established to the requisite standard of proof that this debt is one which ought to properly be included in the asset pool.

CGT liability

1. The husband seeks to retain the NT properties and therefore submitted that there need not be any provision for CGT.  However, it is common ground that if both NT properties are sold in the same year, the CGT payable would be in the order of $1,000.

2. As to any sale costs, those costs will only be incurred if the NT properties are sold.  If they are to be sold, rather than include the associated sale costs in the table of assets and liabilities, it is more appropriate for the orders to provide that the sale costs are to be deducted from the proceeds of sale prior to distribution in the ordinary course. 

3. I therefore find the remaining assets in dispute to be included in the asset pool are as follows:

Asset	Ownership	Value
B Street, Suburb C NT	Joint	$540,000
D Street, Suburb E NT	Joint	$440,000
Super Fund M withdrawn by the husband	Husband	$200,083
Total		$1,180,083

Findings as to asset pool

1. Consequently, I find that the total asset pool available for adjustment between the parties is:

Asset	Ownership	Value
B Street, Suburb C NT	Joint	$540,000
D Street, Suburb E NT	Joint	$440,000
Super Fund M withdrawn by the husband	Husband	$200,083
Funds received by the husband by consent	Husband	$410,000
Funds held by F Conveyancing	Joint	$100,000
G Street, Town H VIC	Wife (20% share)	$62,000
J Street, Town K VIC	Wife (20% share)	$55,504
Motor Vehicle 1	Wife	$1,500
Motor Vehicle 2	Husband	$16,000
Shares L	Husband	$7,069
Camper trailer	Husband	$600
Box trailer	Wife	$400
Funds withdrawn from Super Fund N to pay legal fees	Husband	$20,000
Total assets		$1,853,156

Liabilities	Ownership	Value
CBA Line of Credit	Joint	($95,127)
CBA mortgage secured over B Street, Suburb C NT	Joint	($230,799)
CBA mortgage secured over D Street, Suburb E NT	Joint	($415,024)
Centrelink debt	Wife	($21,000)
Total liabilities		($761,950)
NET ASSET POOL		$1,091,206

1. In addition, the parties agreed that they hold the following superannuation entitlements:

Fund	Ownership	Value
Super Fund N	Husband	$115,072
Super Fund O	Husband	$5,175
Super Fund Z	Wife	$24,151
Total superannuation		$144,398

Contributions at the commencement of the relationship

1. The husband gave evidence that at the commencement of the relationship, he owned:

   a)properties in:

   i)B Street, Suburb C NT, in which he claims to have had equity of $47,000 in 1998;

   ii)Suburb AA NT, in which he claims to have had equity of $15,000 at the commencement of his relationship with the wife; and

   iii)Town BB, NSW which had limited equity at the commencement of the relationship;

   b)a Motor Vehicle 3, which was purchased in 1998 for $21,750;

   c)an Super Fund M account with just over $100,000;

   d)an Super Fund CC super interest of approximately $6,000;

   e)savings of about $21,000;

   f)a MFRDB pension payable on a fortnightly basis; and

   g)household furniture and tools with an estimated value of $8,000.

2. The husband also deposed that he paid for the wedding and honeymoon from his savings, which totalled about $21,000.[29]

   [29] Paragraph 21 of the husband’s affidavit sworn and filed 19 December 2019.

3. The husband did not provide any retrospective valuations in support of his claims as to the value of the three properties he owned at the commencement of the relationship.  Similarly, he has not submitted any independent evidence as to the liabilities attached to each of those three properties at the commencement of the relationship. 

4. At its highest, the husband annexed a document which contained the following statement:

   R1M over B Street, Suburb C NT (existing) valued at $235K 10/98.[30]

   [30] Annexure AB-3 of the husband’s affidavit sworn and filed 19 December 2019.

5. The husband relied upon this as evidence of the value of the property in 1998.  Even if I were to accept that as evidence of the value of that property in 1998, there is no independent evidence as to the value of the mortgage at that time.  I note that Annexure B-2 to the husband’s trial affidavit is an interest only facility for $150,000 which appears to have been secured over the B Street, Suburb C property.  The date of that facility has not been identified. 

6. The husband’s own evidence however, is that he had borrowed ‘up to 80% of its value and as a result… had equity of approximately $47,000’.[31]

   [31] Paragraph 18(a)(i) of the husband’s affidavit sworn and filed 19 December 2019.

7. Similarly, the husband deposed that he purchased the Suburb AA  property for $75,000 in 1995, paid a 20% deposit in respect of that property and therefore had equity of approximately $15,000 at the commencement of the relationship.[32] 

   [32] Paragraph 18(a)(ii) of the husband’s affidavit sworn and filed 19 December 2019.

1. As stated above, the husband does not claim to have had any equity of any significance in the Town BB property at the commencement of the relationship.

2. For her part, the wife conceded that the husband owned three properties at the commencement of the relationship, but submitted that he only held equity to the value of $11,000. The wife similarly did not produce any documentary or independent evidence to support this assertion.  The only evidence led by the wife on this point was that the parties joked that they each had the same amount of equity at the commencement of their relationship.

3. On balance, notwithstanding the absence of any independent or documentary evidence about the value of the properties or their attached liabilities at the commencement of the relationship, I prefer the evidence of the husband, which is partly supported by Annexure B-3 and accept that at the commencement of the relationship, the husband had:

   a)equity in real property of approximately $62,000; and

   b)a car and household furniture and tools with a combined value of about $30,000.

4. The husband also claimed to have savings of some $21,000 but did not produce any bank records to support that assertion. 

5. It is common ground that the husband retired from the armed forces three days after the parties married.  As part of his retirement benefit, he received a lump sum payment which was rolled over into Super Fund M.  The parties differ in their view as to the value of that fund at the commencement of the relationship; the husband asserts that it was just over $100,000 whereas the wife claims that it was $91,320.  Again, no documentary evidence was provided by either party.  In the circumstances, nothing turns on the difference between the parties of the Super Fund M at the commencement of the relationship, given my conclusions below.

6. The husband also asserted that he had further superannuation entitlements of just over $6,000 at the commencement of the relationship.  The wife did not give any evidence about this.

7. I accept the husband’s evidence about the value of equity he held in the real property he owned at the commencement of the parties’ relationship.  The wife’s evidence on this was vague and unclear.  On the balance of probabilities and having regard to the totality of the evidence, I find that at the commencement of the relationship, the husband had assets to the value of just about $200,000, including superannuation interests of about $100,000 and the wife had savings of about $11,000.  

8. I therefore find that the husband made a greater financial contribution at the commencement of the relationship which needs to be weighed in his favour in the overall assessment of contributions.

Contributions during the relationship

1. It is the husband’s case that his contributions during the relationship, both financial and non-financial, far outweigh those of the wife. 

2. In terms of financial contributions, the husband pointed to:

   a)the realised value of the three properties which he brought into the relationship as being a significant contribution by him to the assets of the parties;

   b)the Super Fund M which doubled in value over the course of the relationship without contribution from either party;

   c)his higher annual salary whilst working for Employer E;

   d)the fact that the parties lived in the husband’s property at B Street, Suburb C after their wedding until 2004 when that property was sold, and further, the improvements which were made to that property during the period the parties resided there;

   e)the fact that he met the mortgage repayments, boat and car repayments, groceries and provided other financial support for the family;

   f)his DFRDB pension and DVA general pension on a fortnightly basis which reduced the parties’ loans;

   g)his overall management and oversight of the parties’ investment properties, including maintenance and dealing with insurance claims from time to time; and

   h)the gardening and landscaping work he undertook at the parties’ homes.

Wife’s inheritances

1. It is common ground that the wife received a number of inheritances during the relationship, although there is a dispute as to the value of those inheritances.  The wife’s case is that between 1998 and 2001, she inherited about $79,000 from her grandparents’ estate and received a further gift from her parents of $80,000 in 2000.  The wife claimed that these amounts were applied:

   a)to assist the parties’ purchase of various properties during the relationship, including a boat; and

   b)towards improvements to various properties owned by the parties.

2. These inheritances were in addition to the 20% interest in both the G Street, Town H and the J Street, Town K properties which was gifted to the wife by her father in 2000. 

3. The husband alleged that the wife inherited/received gifts to the value of $112,614.22 during the relationship.

4. The wife’s brother, Mr T gave evidence in relation to this matter, which I accept.[33]  Notwithstanding fairly robust cross examination on this point, Mr T was consistent in giving the following evidence:

   a)he was directly involved in each of the distributions to which the wife attests; and

   b)the amount she received by way of inheritances and gifts amounted to $179,000.

   [33] Affidavit of Mr T sworn and filed 27 June 2019.

5. The husband’s counsel was critical of the fact that neither the wife nor Mr T produced any original documents establishing that the wife received $179,000 in gifts and inheritances during the relationship.  That may be so however, I accept Mr T’s evidence and his explanation given in response to Annexure B-7 to the husband’s affidavit, which purports to be a summary of the total amounts paid to the wife.  When one compares Annexure B-7 to Annexure -2 of Mr T’s affidavit, it is apparent that Annexure B-7 contains some but not all of the payments included in Annexure -2.  Annexure -2 appears to be an email dated 17 October 2015.  I accept Mr T’s evidence that he prepared that email from bank statements and source documents available at the time.  I also accept his evidence that ‘soon after that (his) wife rearranged (his) study and since then I have been unable to locate many of those original documents and tax returns.’[34]

   [34] Paragraph 7 of the affidavit of Mr T sworn and filed 27 June 2019.

6. I am satisfied that the wife received funds from her family totalling approximately $179,000 during the relationship, which was used for the benefit of the family. 

7. In relation to the G Street, Town H property, it is common ground that the wife’s interest is subject to her father’s life interest.  In relation to the J Street, Town K property, the wife gave evidence at trial that the property had been sold and she expected to receive $50,000 net after payment of selling costs and other expenses.  By consent, the parties advised the court that the final amount received by the wife, net of costs following the sale of the J Street, Town K property was in fact $55,503.75 less CGT.

Husband’s inheritances

1. The husband’s parents also passed away in 2019.  The wife asserted that the husband stands to receive some $143,600 as his share of the inheritance from their estates.  The husband did not take issue with this assessment and provided an estimate of his parents’ estates which appears to be consistent with this assessment.[35] While neither party sought to include the husband’s inheritance in the asset pool, the wife argued that it is a financial resource available to him which ought to be considered in any overall adjustment of the parties’ property interests.  

   [35] Annexure B-28 of the husband’s affidavit sworn and filed 19 December 2019.

2. I agree with this submission.

Husband’s gambling

1. The wife also asserted that the husband spent significant funds on gambling during the relationship.  The husband conceded that he spent some $18,000 on gambling.  I accept that the husband did occasionally gamble during the relationship however, I do not find that his conduct was at such a level which needs to be factored into any adjustment to the parties’ property interests in this case. 

Non-financial contributions

1. The husband submitted that he also made greater non-financial contributions to the welfare of the family, particularly after 2007 when the wife’s mental health started to deteriorate.  He said that from this point, he took on more responsibility in caring for the children and later, in caring for the wife.

2. The husband gave evidence that in 2010, the wife spent some eight months in and out of DD Hospital, public hospitals and was ultimately diagnosed with Bipolar Disorder.  There were a number of separations over the period from 2011 and 2015.  His evidence, which I accept, is that he organised counselling for the children and sought and obtained carer support for the children.

3. The husband further said that in 2011, he finally took over the role of primary carer of the children.  He said this occurred simultaneously with him taking over the running of the parties’ business.  His evidence was that he worked excessive hours, attended to the children’s needs and employed live-in nannies to assist during periods when the wife was not at home, especially when he ran overnight duties for the business.

4. The wife’s evidence was that the husband:

   a)was manipulative and controlling during the relationship;

   b)also suffered from angry outbursts; and

   c)was diagnosed with Post Traumatic Stress Disorder (“PTSD”).

5. She said that she attended a family violence counselling service in 2015. 

6. The wife conceded that there were various periods of separation from 2011 onwards including an incident in 2015 where she discharged a loaded firearm whilst the children were in the home.  This resulted in her admission to hospital and culminated in the parties’ final separation.

7. As noted earlier, it is common ground that the wife suffers from anxiety and major depression and receives a disability support pension. 

8. The wife also conceded that from 2011, she was unwell and had to scale back her work in the business significantly.  This led to the employment of other staff to take on work that she had previously been doing.

9. The husband gave evidence that from 2011 onwards, there were times when he would return from a trip with the business to find that the wife had left the family home and the children unattended.  The wife disputed this. 

10. The husband also gave evidence that:

    a)because of the wife’s declining mental health, there were numerous occasions where he drove around searching for her in hospitals, churches and other places that she frequented; 

    b)the wife was often in a depressed state, particularly after 2010 and would sleep long hours during the day; and

    c)when she was in a manic state, she would ‘cause turmoil to staff, our children and me’.[36]

    [36] Paragraph 88 of the husband’s affidavit sworn and filed 19 December 2019.

11. The husband’s oldest daughter also gave evidence about her observations of the wife’s parenting capacity.[37]  This evidence is of limited value to the court in circumstances where the wife conceded that at times, her mental ill health impacted her capacity to work and care for the children.  It does little to assist the court in determining how the wife’s financial and non-financial contributions during the relationship should be balanced when considering what orders would be just and equitable.

    [37] See affidavit of Ms D affirmed 1 and filed 11 July 2019.

12. The husband’s own evidence was that from the time the parties married until about 2010, the wife was able to work and undertake the primary carer role.[38]  Moreover, the husband conceded that in the early stages of their relationship, the wife did contribute ‘in physical ways and in employment’.[39]

    [38] Paragraph 75 of the husband’s affidavit sworn and filed 19 December 2019.

    [39] Paragraphs 73 and 79 of the husband’s affidavit sworn and filed 19 December 2019.

13. To his credit, the husband acknowledged that, although the wife’s mental ill health worsened and her capacity to contribute declined, it had not always been this way during their relationship. For instance, he deposed:

    … In the early years as we developed our business, Ms Ballantine and I worked very well together.  We had a happy home.  However, she stated to me that nightmares about her childhood started coming back and haunting her in 2008 and 2009 and her physical and mental health began to deteriorate, and after 2010 her Bipolar mood swings appeared worsened.[40]

    [40] Paragraph 85 of the husband’s affidavit sworn and filed 19 December 2019.

14. On the totality of the evidence before me, I accept that the wife suffered from ill mental health, particularly from 2011 onwards, but most likely from before that date.  This made it difficult for her to manage the running of the household with three young children as well as the business activities in which she was engaged.  During these times, the husband took on more responsibility in caring for the children and running the business.  On the basis of his own evidence, this included hiring additional help at times, both within the business and at home, to assist with the children.

15. I also find that the husband suffered from his own mental health issues, including PTSD.

16. The wife, for her part, submitted that her contributions during the relationship were made more arduous because of the family violence to which she was subjected at the hands of the husband.

17. For the following reasons, I find that each party contributed equally both financially and non-financially throughout the course of the relationship:

    a)towards the acquisition, conservation and improvement of the property now available for division between them; and

    b)to the best of their ability, for the welfare of the family. 

18. Each of the husband and wife battled with conditions which, through no fault of their own, compromised their respective contributions. 

19. Despite inquiry, the court was not referred to any authority in support of the proposition that a person whose capacity to contribute either financially or non-financially may be compromised due to ill mental health, ought to receive a lesser proportion of the assets of the relationship.  Such an approach in the circumstances of this case, would not, in my view, be just and equitable. 

20. As put by counsel for the wife, this is a sad case in which both parties have, at different times, ‘laboured under difficulties which are not of their own making’.[41] To the extent that:

    a)the wife was incapacitated at various stages during the relationship; and

    b)this incapacity undoubtedly impacted her ability to contribute, directly or indirectly, financially or non-financially to the assets of the parties and/or the welfare of the family at that time,

    this incapacity could not be said to be of her own making on any case. 

    [41] Transcript page 64 at line 9.

21. The evidence reveals that the wife was at times incapacitated to the extent that she left the family home.  Indeed in 2015, following the incident with the firearm, she was hospitalised for a period of time. I also accept that there were periods when she was still residing in the family home but incapacitated due to her ill mental health. 

22. However, it does not follow that such incapacity ought to result in a reduction in her entitlements to the property available for distribution under section 79. 

23. For example, if the wife had suffered from a physical injury which rendered her incapacitated for a period of time, or to contribute financially or care for the family, would the husband have argued that her share of the property pool ought to be reduced?  Moreover, would such an argument hold sway with the court?  In my view, justice and equity requires that the answer to the latter question, irrespective of the answer to the former, must be ‘no’. 

24. To accept the husband’s argument would invite this court to assess the inherent quality of each party’s contribution over the course of a relationship spanning some 17 years, and during which the parties have faced a number of challenges, mostly together.  That is not the analysis required by section 79.  It is well accepted that the role of this court in considering and weighing the contributions made by parties for the purposes of section 79 is not a mathematical exercise, nor can it properly be said to be an assessment of the relative qualitative value of the contributions made. 

25. Similarly, I reject the wife’s contention that this is a case to which the principles in Kennon v Kennon [1997] FamCA 27; (1997) FLC 92-757 (“Kennon”) apply.  In Kennon, the Full Court of the Family Court considered the relevance of domestic violence to section 79 proceedings and noted:

    The question raised in this case was whether and if so to what extent domestic violence was relevant in the exercise of the discretion under s79 of the Family Law Act. If it is relevant, that should be clearly acknowledged. If it is not, then a disservice is done by attempting to apply the section to circumstances which are not within its ambit. Change is then a matter for the legislature.[42]

    [42] Kennon v Kennon [1997] FamCA 27; (1997) FLC 92-757 at 84,291.

26. After discussing the history of section 79 and the changes introduced in 1975, the Court went on to say:

    Section 79 replaced the previous s 86.  It made no explicit reference to conduct one way or the other but it did include the rather enigmatic provision in s 75(2)(o) …

    … in pre 1975 legislation, conduct as such was relevant to the determination of property proceedings and, to an extent, those orders were seen to represent social and judicial disapproval of that conduct. It seems to us that in the post 1975 cases the change was to exclude what were otherwise relevant factors under s79 because they had their origin in conduct.  … The correct position may be that such matters are relevant within s 79 not because they are based in conduct, rather despite that and because they are otherwise part of the legitimate s 79 exercise.[43] 

    [43] Kennon v Kennon [1997] FamCA 27; (1997) FLC 92-757 at 84,291 and 84,292.

27. After considering a range of relevant cases, the court stated:

    Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or put another way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s79 (emphasis added).[44]

    [44] Kennon v Kennon [1997] FamCA 27; (1997) FLC 92-757 at 84,294.

28. The court made it clear that this approach was limited to exceptional cases.  Indeed, in considering whether this approach was likely to have the effect of ‘opening the floodgates’, the court went on to say:

    It is essential to bear in mind the relatively narrow band of cases to which these considerations apply.  To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party.  It is not directed to conduct which does not have that effect and of necessity it does not encompass… conduct related to the breakdown of the marriage…[45]

    [45] Kennon v Kennon [1997] FamCA 27; (1997) FLC 92-757 at 84,294 to 84,295.

29. The present case is not one to which these principles apply.  Although the wife claimed the husband engaged in controlling and coercive behaviour towards her throughout the relationship, she does not suggest that this conduct caused her mental ill health; rather, her submission was that his conduct made her contributions more arduous.

30. Whilst the husband conceded that he suffers from PTSD, he denied any family violence. At its highest, the evidence shows that:

    a)the husband suffered from PTSD and had a ‘short fuse’; and

    b)the wife suffered from anxiety and depression.

1. Whilst this combination of the parties’ struggles did little to assist either one of them, there is no evidence that any conduct which might constitute family violence rose to the level that it could be said that it had “a discernible impact upon”[46] the wife’s contributions during the relationship. 

   [46] Kennon v Kennon [1997] FamCA 27; (1997) FLC 92-757 at 84,295.

2. It is clear from the evidence before this court that these parties entered into a relationship in which they:

   a)shared their assets;

   b)made decisions together to buy, develop and sell properties; and

   c)established and ran a business together. 

3. For much of their relationship, they operated as a team.  The husband’s evidence, which I accept, is that he tried to help the wife through her mental ill health until the firearms incident in July 2015 which precipitated the parties’ final separation. 

4. In this context, and having regard to the totality of the evidence, I find that during their relationship, the parties made equal contributions during the relationship to the best of their ability, both directly and indirectly, financially and non-financially to the acquisition, conservation or improvement of their property and also to the welfare of the family.  In coming to this view, I have also had regard to the inheritances and gifts which the wife received and which were used for the benefit of the parties and their family.

Post-separation contributions

1. I note that after separation, the children lived with the husband and he had and continues to have primary care of them, including the youngest child who is under 18.  I accept the husband’s evidence that he has largely shouldered the burden of caring for the children post-separation, including meeting the bulk of their expenses.  The wife has provided minimal child support and has contributed to some, albeit few expenses. 

2. However, the husband also had the benefit of living in the former matrimonial home until it was sold.  He has also had and continues to have the benefit of the rental income from the properties which the parties jointly own and since returning to S Street, Town G, he has had the added benefit of accessing funds from the asset pool to purchase a home for himself and the children. 

3. I have had regard to all of these factors in considering what orders are just and equitable. 

Section 75(2) factors

1. The wife is 51 years of age and the husband is 60 years of age. 

2. The wife does not work, is in receipt of a Centrelink disability support pension and has long standing mental health issues.  She also receives support through the NDIS.  The wife deposed that her total average weekly income is $526.[47]

   [47] Paragraph 16 of the wife’s financial statement filed 5 March 2018; see also paragraph 68 of the wife’s affidavit sworn and filed 18 December 2019.

3. The husband was granted a Total Permanent Incapacity pension from the Department of Veterans Affairs in 2017.  The husband deposed to a total average weekly income of $2,976.55.[48] 

   [48] Paragraph 16 of the husband’s financial statement filed 19 December 2019.

4. The wife lives with her brother and father in a rental property.

5. The husband lives in the S Street, Town G property which is unencumbered and which was purchased with an interim property distribution of $410,000 and the balance from his Super Fund M account. 

6. Two of the parties’ three children, including one under the age of 18 years, live with the husband.  The husband continues to receive some educational funding support from the Department of Veterans Affairs for them.[49]

   [49] Paragraph 12 of the husband’s financial statement filed 19 December 2019.

7. The wife pays minimal child or other financial support for the children of the relationship.

8. Neither party has re-partnered nor do they have any other children under the age of 18 for whom they have financial responsibility.

9. This is a long marriage of 17 years’ duration.

Consideration

1. I turn now to consider what order is just and equitable, having regard to these findings.

2. The wife seeks an overall adjustment of 55/45% in her favour and an equal superannuation split. She submits that such an adjustment is just and equitable, having regard to her assertion that the parties’ contributions were roughly equal and her future needs are slightly greater compared to those of the husband.  Whilst she conceded that the husband has the care of the remaining child under the age of 18 and he has no capacity for future employment, she submitted that he has the benefit of a higher rate pension as well as an inheritance following the passing of his parents in the sum of some $140,000.

3. The wife further submitted that if an adjustment were to be made in the husband’s favour in light of the equity he alleges to have held in the three properties at the commencement of the relationship, any such adjustment would be outweighed by her future needs given that she is currently living in rental accommodation with her father and her brother, she receives a disability support pension and has no capacity for future employment.

4. For his part, the husband seeks an adjustment in his favour of between 70 to 75%.  He says that an adjustment of this magnitude gives due recognition to the following factors:

   a)at the commencement of the relationship, he brought in equity in three properties which ultimately were realised for some $435,000;

   b)he also had a Super Fund M, which at cohabitation was $100,000 but then increased to $200,000 by the time the funds were withdrawn;

   c)during the relationship, he contributed the bulk of the financial resources available to the parties, both by way of his higher earning capacity and the DFRDB pension;

   d)during the relationship, and in particular from at least 2010, the husband also became the primary carer of the children; and

   e)the husband continued to undertake the role as primary carer for the children post-separation, with minimal support from the wife.

5. In addition, the husband submitted that the following section 75(2) factors also weigh in his favour:

   a)the husband is older than the wife and has no capacity for future employment;

   b)whilst the husband receives both a Veterans’ Affairs and DFRDB pension, he was the sole contributor to these benefits insofar as the entitlement arose following his employment in the armed forces, prior to the commencement of the parties’ relationship;

   c)the husband has the ongoing care of the children, including one over 18 years of age but who also still lives with the husband although she has some casual employment, again with minimal assistance from the wife; and

   d)it is conceded that the wife also has no capacity for employment but receives a disability pension.

6. The husband argued that in circumstances where the parties are unable to work but may access their superannuation entitlements, this is a case in which one pool inclusive of superannuation is appropriate.

7. If the court were to adopt a one pool approach, it was submitted that there ought be no adjustment for section 75(2) factors, or in the alternative, a slight adjustment in favour of the husband. The husband argued that on this basis, orders which would see him receive or retain 70 to 75% of the overall pool would be fair and reasonable.

8. To give effect to this, the husband sought the following orders:

   a)he be permitted to retain the NT properties;

   b)he retain the funds he has received to date, namely $410,000 and $180,000;

   c)he retain his motor vehicle, shares, trailer, the $20,000 he has paid towards his legal fees; and

   d)he retain his superannuation benefits and entitlements.

9. This proposal would see the husband receive well over 75% of the total pool available for division, inclusive of superannuation.

10. I am not satisfied that the husband’s proposal would see justice and equity done between these parties. 

11. I accept and find that the husband’s contribution at the commencement of the relationship was greater than the wife and an adjustment ought to be made to reflect that finding.  However, that initial contribution must be weighed against the myriad of contributions that these parties have made over the course of a long relationship, which has borne three children. 

12. I also accept and find that the wife’s contribution diminished as her mental ill health deteriorated, in particular between 2010 and 2015.  However, even on the husband’s case, the wife made contributions both financially and non-financially to the acquisition, conservation and improvement of the parties’ property as well as to the welfare of the family.  So much is evident from a consideration of the history of the parties’ relationship during which they bought and sold properties, improved properties and commenced and ran a business together. 

13. To the extent that the wife’s contribution after 2010 was reduced or impaired as a result of her mental ill health, it was conceded that this was not within her control or power.  Even whilst unwell, I accept the wife’s evidence that she did the best she could within the limitations in which she was functioning.  I therefore find that on balance, the parties contributed equally to the best of their ability and capacity during their relationship.

14. I also accept that since separation, the husband has taken on the primary role in caring for the children and have had regard to that in determining what orders are just and equitable.  However, as stated above, the husband has also had the benefit of access to the Super Fund M to purchase a home in which he and the children have lived mortgage free post-separation.  On the other hand, the wife has continued to live in rental accommodation with her father and brother.

15. I do not accept the submission that somehow the balance of the Super Fund M  at the end of the relationship should be treated as a contribution solely made by the husband.  As the Full Court noted in Jabour & Jabour [2019] FamCAFC 78:

    Again, consistent with the authorities set out above and those which we discuss below, the import of Pierce is that the weight to be attached to an initial contribution must be assessed against the rubric of all of the contributions, both financial and non-financial, made by the parties over the course of their relationship.[50]

    [50] Jabour & Jabour [2019] FamCAFC 78 at [55].

16. The husband’s case generally, including the approach to the Super Fund M and to his pensions, fails to give adequate weight to the myriad of contributions made by the wife during the course of the relationship, including both non-financial and financial.  In relation to financial contributions, it fails to give adequate weight to the inheritances she received early in the relationship which were applied to the parties’ investments and living expenses.

17. In relation to section 75(2) factors, whilst the wife is younger, the husband conceded that she has no capacity to work. Both parties are in receipt of a pension although the husband’s pension is greater than that of the wife. In addition, the husband is due to receive an inheritance from his parents’ estate in the order of $140,000. This is not insignificant.

18. The husband currently has the care of the parties’ youngest child and is likely to receive limited, if any significant financial support for the care of that child. 

19. Again on balance, the section 75(2) factors weigh slightly in favour of the wife.

Conclusions

1. On balance, taking all of these matters into account, I find that a division of the non-superannuation assets on the basis of 54% to the husband and 46% to the wife with an order equalising the parties’ superannuation entitlements would, in all the circumstances, be just and equitable. 

2. I therefore propose making the orders set out at the commencement of this judgment to give effect to these reasons.  The parties have liberty to apply within 7 days if they have any issue with the mathematical calculations in these proposed orders which are intended to give effect to these reasons.

3. If neither party exercises liberty to apply within that timeframe, the orders as drafted herein will be made final and thereafter take effect.

I certify that the preceding one hundred and sixty-six (166) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate: 

Date:         17 July 2020

CORRECTION: 21 August 2020

1. Order 12 has been amended:

   a)to delete the text “Super Fund O (“the Trustee”) as Trustee of Super Fund O (“the Fund”)”; and

   b)to insert the text “Super Fund N (“the Trustee”) as the Trustee of Super Fund N (“the Fund”)”.