Balstone & Hamer
[2021] FCCA 2006
•26 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Balstone & Hamer [2021] FCCA 2006
File number(s): PAC 4366 of 2018 Judgment of: JUDGE NEWBRUN Date of judgment: 26 August 2021 Catchwords: FAMILY LAW – de facto property adjustment – orders made Legislation: Family Law Act 1975 (Cth), ss 4AA, 90SM, 90SF, 75(2)(o) Cases cited: Crick & Bennett [2018] FamCAFC 68
Lotta & Lotta [2017] FamCA 50
Number of paragraphs: 101 Date of last submission/s: 6 May 2021 Date of hearing: 5-6 May 2021 Place: Parramatta Counsel for the Applicant: Ms Friedlander Solicitor for the Applicant: Mr Siu Counsel for the Respondent: Mr Todd Solicitor for the Respondent: Ms Kermode ORDERS
PAC 4366 of 2018 BETWEEN: MS BALSTONE
Applicant
AND: MR HAMER
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
26 AUGUST 2021
THE COURT ORDERS THAT:
1.The Court declares that the parties were in a de facto relationship, within the meaning of section 4AA of the Family Law Act 1975 (Cth) (“the Act”), from about mid-2013 to about July 2018.
2.Within 2 months the Applicant pay to the Respondent the sum of $282,067 and that on such payment the Respondent cause to be discharged the total mortgage debt over the property situated at B Street, Suburb C and being the whole of the land in title reference … (the property) and further cause title to the property to be transferred into the name of the Applicant.
3.Failing such above payment by the Applicant to the Respondent, that the Respondent forthwith take all necessary steps and execute all necessary documents to cause the property to be sold by private treaty at the earliest possible date at a price to be determined by the Respondent and that the proceeds of sale be disbursed as follows:
(a)Payment of agent’s commission and advertising expenses and legal expenses of the sale;
(b)Payment of any money due and owing to the mortgagee;
(c)The net proceeds of sale to be paid to the Applicant.
4.That on or before completion of the sale of the property, the Respondent shall additionally pay the Applicant the sum of at least $142,982 ensuring that, in any event, such additional sum, which when added to the above net proceeds of sale and the Applicant’s existing assets totalling $52,666, effectively results in the Applicant receiving at least $510,598.
5.That on or before completion of the sale of the property the party residing therein will provide vacant possession, remove all items not included in the sale and ensure the property is left in a clean and tidy condition.
6.That the Respondent have sole right title and interest in the unit situated at D Street, Suburb E and be solely responsible for the mortgage on said property.
7.That the parties have sole right title and interest in any shares, money in bank accounts and money in cryptocurrency accounts in their sole name.
8.That the Applicant have sole right, title and interest in the Motor Vehicle 1.
9.That the Respondent have sole right, title and interest in the Motor Vehicle 2.
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 Balstone & Hamer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN
INTRODUCTION
This judgment relates to the parties’ competing proposed property adjustment Orders in relation to a de facto relationship between the parties.
The parties each contend that their de facto relationship spanned differing periods. The Applicant contends that the de facto relationship spanned the period from about June 2005 to about July 2018. The Respondent contends that the de facto relationship spanned the period from about mid-2013 to about July 2018.
The parties had two children together, X born in 2010, and Y born in 2014.
PROPOSALS AND MATERIAL RELIED UPON
The Applicant’s proposed Orders were set out in her Further Amended Initiating Application filed 21 May 2020.
The Applicant relied upon the following documents:
(a)Further Amended Initiating Application filed 21 May 2020;
(b)Financial Statement filed 23 April 2021;
(c)Affidavit of Applicant filed 21 May 2020;
(d)Her Case Outline filed 23 April 2021;
(e)Further submissions document dated 9 July 2021.
The Respondent relied upon the following documents:
(a)Amended Response filed 12 March 2019;
(b)Financial Statement of Respondent filed 3 May 2021;
(c)Affidavits of Respondent filed 26 May 2020 and 3 May 2021;
(d)Affidavit of Ms F filed 12 August 2020;
(e)Affidavit of Mr G filed 12 August 2020;
(f)His Case Outline filed 30 April 2021.
EXHIBITS
The following Exhibits became evidence in the proceedings:
(a)Exhibit A: Tender Bundle of the Applicant;
(b)Exhibit B: Tender Bundle of the Respondent;
(c)Exhibit C: Balance Sheet;
(d)Exhibit D: Costs Notice for the Respondent;
(e)Exhibit E: Series of the Applicant’s documents, including text messages, photographs and letters;
(f)Exhibit F: Financial accounts of the Respondent.
RELEVANT LEGAL PRINCIPLES
Section 4AA of the Act sets out the meaning of a de facto relationship:
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) A Court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the Court in the circumstances of the case.
As to the proper construction to be applied to section 4AA of the Act, the Court refers to relevant case law authority of the Family Court of Australia as set out in the Full Court of the Family Court of Australia’s decision in Crick & Bennett [2018] FamCAFC 68 at paragraphs 13-14, including the decision in Crick & Bennett.
THE DURATION OF THE PARTIES’ DE FACTO RELATIONSHIP
In resolving the issue of the duration of the parties’ de facto relationship, the Court is required to have regard to all the circumstances of the parties’ relationship and determine whether they had a relationship as a couple living together on a genuine domestic basis. Those “circumstances” may include any or all of the matters set out in section 4AA(2) of the Act. The Court has considered all the parties’ documentary evidence relied upon (including affidavits), the documentary Exhibits, the oral evidence of the parties, and submissions. The Court now proceeds to consider the circumstances of the parties’ relationship and make findings:
a) The duration of the relationship
The Respondent concedes that the parties had a de facto relationship from about mid-2013 to about July 2018. Again, the Applicant contends that the de facto relationship spanned the period from about June 2005 to about July 2018.
The parties met in about June 2005 in Sydney. The parties would meet up about once a month when the Respondent was home from overseas (he worked as a tradesman). At the time the Respondent’s work meant that he spent six weeks at overseas and six weeks at home.
In about 2006, the parties moved to Perth as the Respondent at the time was doing a course there to further his career. The Applicant obtained work with Employer H.
In about late November or early December 2006, the parties’ relationship ceased, and the Applicant returned to Sydney. The Respondent had commenced an intimate sexual relationship with Ms F in City J at about that time with that relationship lasting about one month.
By about mid-March 2007, the Applicant had returned to Perth. She had received, at about that time, a wedding invitation addressed to her alone from a family in Sydney, with the envelope address being an address in City J.
During the first half of 2007, the Respondent spent some time working overseas. In about 2007, the parties travelled from Perth to Sydney by car.
The Respondent sent the Applicant an affectionate birthday card for the Applicant’s birthday in 2007 which card was sent to the Applicant’s parent’s address at Suburb K.
The Applicant had employment in Sydney as a sales assistant from 2007 until at least 2008. She also had employment in Sydney as a customer service officer from 2007 to 2008.
The Respondent purchased a property at Suburb E in about early December 2007. The Respondent provided all the finance for this property. At about this time the Respondent would be overseas on a 5 weeks on/5 weeks off roster, or sometimes he would be posted overseas for 6 weeks at a time.
In October 2008, the Respondent sent the Applicant some affectionate text messages.
At Christmas 2008 the Respondent’s father and partner sent the parties a Christmas card.
The Respondent gave presents to the Applicant for her 29th birthday in 2009.
The Respondent had a relationship with Ms L from 2009 to 2010.
In about early February 2010 the Applicant found out about Ms L. At this time the Applicant considered the parties had broken up.
The Respondent had a relationship with Ms M from about 2010 to about December 2012.
The parties’ first child, X, was born in 2010. The Applicant did not place the Respondent’s name on the child’s birth certificate. The Applicant had applied for a single parent pension from Centrelink shortly prior to the child’s birth.
After the child X was born, the Applicant found out about Ms M.
The Respondent sent text messages to the Applicant in May 2012, June 2012, July 2012, August 2012, and October 2012 of an affectionate nature.
The parties resumed a relationship in about mid 2013.
b) The nature and extent of their common residence
The parties went to Perth from Sydney in 2006 and cohabited in premises rented by the Respondent from 2006 until about early December 2006. In about early December 2006, the Applicant returned on her own to Sydney having discovered that the Respondent was having a relationship with Ms F.
On the balance of probabilities the Applicant lived in the Respondent’s rented premises in City J from at least about 2007 to about September 2007 when the parties drove back together from Perth to Sydney.
The Respondent began residing in the D Street, Suburb E property in about December 2007.
In 2008, after the Respondent had purchased the D Street, Suburb E property, the Applicant used to come over and stay about once a week in that property. She, and members of her family, did not reside in the D Street, Suburb E property whilst the Respondent was working overseas.
Mr G swore an Affidavit. He was a friend of the Respondent. He visited the Respondent on a few occasions during 2011 at his home in D Street, Suburb E. He did not observe any female items anywhere in the D Street, Suburb E home.
The parties lived together in the D Street, Suburb E property from about mid-2013 until their separation in about July 2018.
c) Whether a sexual relationship exists
The parties commenced having a sexual relationship in about 2005.
Their sexual relationship probably did not subsist following the parties’ relationship ceasing in about late November or early December 2006 and up to about mid March 2007. It probably did not subsist from about February 2010 until their relationship resumed in about mid 2013, however there were likely intermittent occasions that they had sexual encounters during about the second half of 2012 until the resumption of their relationship in mid 2013.
Their sexual relationship continued from about mid 2013 to about July 2018.
d) The degree of financial independence or interdependence, and any arrangements for financial support, between them
Whilst living in Perth, the Applicant purchased what she needed for herself, and bought some groceries for the parties. She did not contribute directly to the rent.
The parties never held any joint bank accounts. The parties maintained separate bank accounts.
The Respondent, between about October 2010 and February 2013, paid child support privately to the Applicant. The Applicant did not disclose those payments to Centrelink.
From about 2013 the Applicant was not in paid employment.
e) The ownership, use and acquisition of their property
The Respondent purchased the D Street, Suburb E property (D Street, Suburb E) in December 2007 providing all the finance for that property. Thereafter, he made all the financial contributions towards that property.
The Respondent purchased the property at B Street, Suburb C in 2014.
f) The degree of mutual commitment to a shared life
From 2005 until about mid 2013, the parties’ mutual commitment to a shared life, viewed holistically, was not significant. During this period, they maintained, for significant periods, as previously discussed, a sexual relationship, shared rented premises for relatively short periods in Western Australia in late 2006 and in 2007, and were mutually affectionate at certain times. At times, during this period, the parties regarded their relationship as serious.
However, and importantly, there were significant periods from 2005 to about mid 2013 when the parties’ relationship broke down, they had no interdependent financial relationship, and there was no significant mutual commitment to a shared life for any sustained and significant period of time during this period.
The Court regards this insignificant degree of mutual commitment to a shared life by the parties during this period, again viewed holistically, as particularly important when considering this issue of the duration of the parties’ de facto relationship.
g) Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship.
Not applicable.
h) The care and support of children
The parties had 2 children together, X born in 2010, and Y born in 2014.
The Respondent gave the Applicant money privately for X between 2010 and 2013. He has paid formal child support for Y following her birth.
When the Respondent was home on leave from his work overseas, he saw X after her birth usually fortnightly until the resumption of the parties’ relationship in mid 2013.
i) The reputation and public aspects of the relationship
The Court refers to the above discussions as to relevant circumstances relating to the parties’ relationship.
Determination as to duration of parties’ de facto relationship
In summary, the Court is satisfied on the balance of probabilities that the parties had a relationship as a couple living together on a genuine domestic basis from about mid 2013 until about July 2018, and they were in a de facto relationship during that period.
The parties’ relationship did not reach the level of a relationship as a couple living together on a genuine domestic basis between the period from about 2005 until about mid 2013.
PROPERTY ADJUSTMENT
LEGAL PRINCIPLES
The Court refers to section 90SM of the Act relating to the alteration of property interests in property settlement proceedings after the breakdown of a de facto relationship.
The following discussed legal principles apply equally to property adjustment proceedings between de facto couples.
In Lotta & Lotta [2017] FamCA 50 Foster J stated:
281. The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford [2012] HCA 52 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman [2014] FamCAFC 91 and Scott & Danton [2014] FamCAFC 203.
282. The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
283. Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
284. There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.
285. In many cases this requirement is readily satisfied where the parties are no longer in a marital or defacto relationship and, thus, for example, the common ownership or use of property by Respondent and Applicant will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
286. In particular, such a circumstance arises where both parties seek property adjustment Orders but are unable to agree as to same. Here the Applicant seeks an order for adjustment of property and the Respondent contends that there should be no such adjustment.
287. It is thus important to ascertain the present property and resources of the parties so as to facilitate a consideration of the s 79(2) question.
288. In some circumstances it is not possible to determine whether it is just and equitable to make adjustment Orders as to the parties present property rights without a consideration of s 79 (4) matters.
289. Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). The Court must then consider s 79(4)(d) to (g) in particular the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).
290. The Court can then consider the “justice and equity” of the actual Orders to be made: Russell & Russell [1999] FamCA 1875; (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate Orders” as provided for in s 79(1) of the Act.
The parties agreed balance sheet was as follows:
Balance Sheet
Name
Hamer & Balstone
File No
PAC4366 of 2018
Note: this document can be sent by electronic means between the parties prior to it being filed at Court.
Date
Time
Before
Judge Newbrun
Ownership Description Applicants value Respondents value ASSETS 1. H B Street, Suburb C $ 740,000 $ 740,000 2. H D Street, Suburb E $ 480,000 $ 480,000 3. H Commonwealth Bank accounts $ 69,157 $ 69,157 4. H Company N shares (2,000 units @ $0.13 as at 4 May 2021) $ 260 $ 260 5. H Company O shares (3,000 units @ $0.26 as at 4 May 2021) $ 780 $ 780 6. H Motor Vehicle 2 $ 6,000 $ 6,000 7. H Company P balance $ 23,157 $ 23,157 8. W Company Q shares (139 units @ $7.42 as at 4 May 2021) $ 506 $ 506 9. W Company N shares (63,644 units @ $0.13 as at 4 May 2021) $ 6,376 $ 6,376 10. W Company R shares (1,457 units @ $1.04 as at 4 May 2021) $ 1,508 $ 1,508 11. W Company S shares (2,000 units @ $3.52 as at 4 May 2021) $ 7,040 $ 7,040 12. W Shares T value $ 6,941 $ 6,941 13. W Company P balance $ 6,846 $ 6,846 14. W Commonwealth Bank account $ 100 $ 100 15. W Bank U accounts $ 678 $ 678 16. W Bank V accounts $ 831 $ 831 17. W Motor Vehicle 1 $ 7,000 $ 7,000 18. W Household contents $ 5,000 $ 5,000 19. W Share Trading account $ 9,711 $ 9,711 20. W Bank W account $ 129 $ 129
Total $ 1,372,020 $ 1,372,020
ADDBACKS 21. $ $ 22. $ $
Total $ 0 $ 0
LIABILITIES 23. H Mortgage B Street, Suburb C $ 425,050 $ 425,050 24. H Mortgage D Street, Suburb E $ 157,766 $ 157,766 25. H Mastercard Platinum x…69 $ 75 $ 75
Total $582,891 $ 582,891
SUPERANNUATION Member Name of Fund Type of Interest Applicants value Respondents value 26. H Super Fund Z (as at 30 June 2020) Accumulation $ 345,534 $ 345,534 27. W Super Fund AA Accumulation $ NK $ NK 28. $ $ 29. $ $ 30. $ $
Total $345,534 $ 345,534
FINANCIAL RESOURCES Ownership Description Applicants value Respondents value 31. H Inheritance from grandmother’s estate $ NK $ E 144,000 32. $ $
Total $ 0 $ E 144,000
The Court finds that the parties net non-superannuation assets to be $789,129, and superannuation assets to be $345,534, making a total of $1,134,663.
Section 90SM(3) of the Act
The Court is satisfied that it is just and equitable in this case to alter the property interests of the parties in light of the breakdown of their relationship, the fact that they will no longer have the joint use and enjoyment of their property, and the fact that the continuance of the current legal ownership of their property would not afford them justice and equity.
Contributions
The Court takes into account the following matters when assessing the parties’ respective contributions under s 79(4) of the Act.
Again, the parties’ de facto relationship commenced in about mid 2013 and continued until about July 2018; a de facto relationship of about 5 years.
Since the birth of the eldest child in 2010 and during the parties’ de facto relationship, the Applicant has been the primary carer of both children. The Applicant made superior homemaker contributions, compared to the Respondent, during the parties’ de facto relationship. Since separation the Applicant has been the sole carer of the children during which period the Respondent was unemployed for significant periods (see below). These homemaker and parent contributions of the Applicant, both pre and post separation, have been contributions of substance.
The Respondent brought into the de facto relationship, in mid 2013, a motor vehicle, some savings, the D Street, Suburb E property registered in his name, which he had purchased and maintained from about December 2007.
The Respondent had a CBA savings account with a balance as at 31 July 2013 in the sum of $53,564. The Court observes that the Respondent’s bank savings were only some $9,436 as at 2 December 2010. The Respondent had savings with CBA of $118,332 as at separation in July 2018. His cash savings are now $69,157. The Applicant indirectly contributed to these cash savings by reason of her primary care of the children which facilitated the Respondent working in employment and thereby increasing his savings. It is likely that the Respondent dissipated his savings as at separation to their present level to pay for what the Court finds to have been his reasonable living expenses.
The Applicant’s only source of income after the child X’s birth in 2010 was government benefits, as well as private payments to her from the Respondent for child support. In mid 2013, when the parties’ de facto relationship commenced, the Applicant had a motor vehicle. Again, she was the primary carer for the child X. She was receiving the single parent pension (and continued to receive it up to 2015 when it ceased, and post separation it was received by her), together with family tax benefits. The Respondent gave the Applicant money to pay for living expenses from mid 2013 to separation whenever the Applicant needed such financial assistance. By early January 2018, the Applicant had accumulated about $107,000 in savings from these sources of income. The Applicant probably spent these funds from this credit balance to purchase shares, cryptocurrency, pay legal bills ($10,000), $20,000 was utilised by the Respondent to reduce the mortgage loan balance, and to pay for her reasonable living expenses.
The Respondent also brought into the de facto relationship commencing in mid 2013 a superannuation balance of about $133,732. The Applicant’s primary care of the eldest child from her birth in 2010, and primary care of the youngest child from her birth in 2014, would probably have indirectly facilitated the Respondent earning income and thereby accumulating superannuation thereafter and to date. There is no significant material before the Court as to the extent of the Respondent’s superannuation as at 2010. Nevertheless the Court observes that the Respondent’s superannuation had grown from $133,732 as at mid 2013 to $345,534 as at trial date. The Respondent’s superannuation balances as at separation in July 2018 and on 30 June 2020 was $322,247 and $345,534 respectively.
The D Street, Suburb E property had been purchased in December 2007 for $255,000 with the Respondent utilising his savings and a mortgage loan from CBA bank for the purchase price. The mortgage balance in about mid 2013 was $178,871. As at separation in about July 2018 the mortgage balance was $166,991. As at trial date, this property is valued at $480,000, and the mortgage balance is $157,766. The Respondent paid his income into the mortgage account in his name for the D Street, Suburb E property until it was rented out following the parties moving in to the property at B Street, Suburb C in about April 2014. The rental monies from the D Street, Suburb E property were used to pay the mortgage and other outgoings for the D Street, Suburb E property.
The Applicant’s primary care of the eldest child from her birth in 2010 would probably have facilitated the Respondent earning income and making mortgage repayments on the D Street, Suburb E property until it was rented out in about April 2014.
The Court would assess that the Respondent provided superior contributions to the D Street, Suburb E property, comprising mainly significant direct financial contributions, compared to the Applicant’s indirect contributions (see the preceding paragraph).
The Respondent purchased the property at B Street, Suburb C in April 2014 in the sum of $555,000. He paid a 10% deposit and the balance was taken out by way of mortgage loan. The Respondent paid his income into the mortgage account for the B Street, Suburb C property, and paid related bills for that property, during the parties’ de facto relationship.
As at separation in July 2018, the mortgage balance for B Street, Suburb C was about $298,894. As at trial date, this property is valued at $740,000, and the mortgage balance is $425,050. It is likely that this increase in the mortgage balance from separation in July 2018 to trial date arose by reason of the Respondent’s inability to make regular mortgage repayments during periods of unemployment (see below) and his need to resort to drawdowns on the mortgage loan to pay for what the Court finds to have been his reasonable living expenses, and probably to a much lesser extent some legal fees. In view of this finding the Court does not accept the Applicant’s contention that the Court should calculate the equity in the B Street, Suburb C property based on the mortgage as it stood at separation in July 2018.
The Respondent carried out certain renovations to the property at B Street, Suburb C between about 2014 and 2018. He carried out all the work himself with occasional tradespersons engaged as required for insurance purposes. He spent over $50,000 on renovations paying cash for materials and trades persons. There is no evidence before the Court indicating the extent to which the Respondent’s renovation work including expenditure of over $50,000 contributed to the current value of the property at B Street, Suburb C. And further, the Applicant likely indirectly contributed to the Respondent’s savings by reason of her primary care of the children (that is, her care of the children facilitated the Respondent being able to work and earn income).
Since separation, the Applicant and children have lived in the B Street, Suburb C property. On 19 September 2018 an Order was made by consent for the Applicant to have sole occupancy and use of this property; the Respondent agreed to this Order so that the Applicant and children would have secure and stable accommodation until such time as the property proceedings could be “settled”. Since separation, the Respondent has maintained this property including making certain mortgage repayments (with the Court observing that he was unable to make mortgage repayments for considerable periods post separation by reason of unemployment; see below), and has paid water, council rates and house insurance. The Applicant has paid the gas and electricity bills since the Court’s Orders of September 2018. The Respondent asserts in his Affidavit filed 26 May 2020 that he is currently living with his sister, temporarily; his Affidavit address at Suburb BB is the same in both his Affidavits. He does not assert that he pays rental to his sister. He does not assert that he has rented premises for his own accommodation since separation.
The Respondent’s income during the relationship was on average around $2,000 per week when he was working. The Respondent was out of work for almost 18 months during the relationship. In 2016 the Respondent’s taxable income was $186,699, in 2017 his taxable income was $152,339, and in 2018 his taxable income was $121,627. The Respondent worked as a tradesman between May 2018 to October 2018. He was then unemployed. The Respondent worked from December 2020 to March 2021. As at trial date he had not obtained work and was looking for work in that area.
The Applicant contended that her contributions to trial date should be assessed at 60%, compared to the Respondent’s 40%.
The Respondent contended that there should be a property adjustment in the Applicant’s favour, including future needs factors, of 13%, by reference to the balance sheet.
Taking into account the above matters, and viewing the parties’ overall contributions holistically, the Court assesses the parties’ contributions to the property of the parties as at trial date, to be 35% to the Applicant and 65% to the Respondent. That results in a disparity of $340,398 in favour of the Respondent.
Section 90SF(3)
The parties are both in reasonable health.
The Applicant, aged 40 years, is presently a full-time carer for the children, and she is studying. The Respondent discontinued his previous parenting proceedings on 28 March 2019 and has not spent time with the children for some time. The Applicant will have the primary care of the children for the balance of the children’s childhoods; the eldest child is aged 10 and the youngest is aged 6 years.
The Applicant has previously worked in paid employment. She worked, inter alia, as a customer service officer in 2005, with Employer H in Western Australia in late 2006, in retail as a sales assistant, and customer service officer, prior to the birth of the eldest child. She ceased working when the eldest child was born. She has been a full time carer of the children since the eldest child’s birth to date. It is possible that the Applicant may return to some part-time work in the future, but probably only in conjunction with caring for the children on her own.
The Respondent, aged 39 years, works as a tradesman. He was convicted in October 2018 of illegally installing a GPS tracking device and listening device in the Applicant’s car. Renewal of the Respondent’s Work Identification Card was due to occur in November 2020. The Court observes that the Respondent worked from December 2020 to March 2021, and during this period he earned between $3,500-5,500 net per fortnight. He has been seeking work since March 2021 and asserts that the pandemic has affected his industry.
The Court assesses that the Respondent has a superior earning capacity to the Applicant and observes that historically he has earnt considerable annual incomes as a tradesman.
The Respondent paid child support for the eldest child between about 2010 and 2013. He is presently paying about $30 a week for the youngest child, with such payments having commenced in about March 2019. He is not paying child support for the eldest child. The Child Support Agency on 8 October 2018 informed the Applicant in writing that child support is not payable for X because she is not eligible. In this regard, the Respondent’s name does not appear on the eldest child’s birth certificate. Nevertheless, it has been open for the Respondent to pay informal or private child support for the eldest child as he did previously.
The Applicant’s Financial Statement indicates that she receives the single parenting payment.
The Court refers to the parties’ respective assets in the balance sheet.
The Respondent will receive an inheritance from his late grandmother, in the sum of about $144,000, which was conceded by the Respondent to be a financial resource of significance. The Respondent’s grandmother’s probate has not gone through yet. The Applicant made no relevant contribution towards that prospective inheritance. The Court does not accept that the Respondent failed to provide financial disclosure in relation to this prospective inheritance and accepts the Respondent’s evidence in this regard.
The Respondent submits that the Applicant’s bank account balance in January 2018 of some $107,000 has since significantly dissipated without explanation from the Applicant and should be brought to account in Respondent’s favour under section 75(2)(o). However, as previously discussed, from this sum the Applicant purchased shares, cryptocurrency, paid some legal fees, and some $20,000 was paid towards the mortgage loan. The Applicant’s shares and cryptocurrency, and the B Street, Suburb C property value and related mortgage loan liability, appear in the agreed balance sheet, and the Court has made a contributions adjustment finding, above. There should be no section 75(2)(o) adjustment.
The Applicant contended that an adjustment of 10% should be made in her favour.
The Respondent contended, again, that there should be a property adjustment in the Applicant’s favour, including future needs factors, of 13%.
Taking into account the above matters, there should be an adjustment in favour of the Applicant of 10%, representing $113,466 of the net property pool. This results in an adjusted contributions finding of 45% in favour of the Applicant and 55% in favour of the Respondent, resulting in a disparity of $113,466 in favour of the Respondent.
Justice and equity
Pursuant to the Court’s adjusted contribution assessment, the Respondent should receive $624,064. The Applicant should receive $510,598.
The Applicant wishes to acquire the B Street, Suburb C property debt free having submitted that the children are well settled at this home and attend local schools. Should the Respondent retain:
(a)D Street, Suburb E property: $480,000
(b)CBA accounts: $69,157
(c)His shares: $1,040
(d)His car: $6,000
(e)Cryptocurrency: $23,157
(f)His superannuation: $345,534
A total of $924,888
Less
(g)D Street, Suburb E mortgage debt: $157,766
(h)Pay B Street, Suburb C mortgage debt: $425,050
(i)CBA debt: $75
A total of $582,891,
leaving net $341,997,
the Applicant will need to pay the Respondent $282,067 (as the Respondent is entitled to receive $624,064).
The Applicant’s Financial Statement indicates that she has no capacity to pay the Respondent the above sum. She submits that she wishes to seek to raise funds to meet this payment. She should be given 2 months to pay the Respondent $282,067. Failing payment, the B Street, Suburb C property should be sold.
The Applicant has informed the Court that in the event that the B Street, Suburb C property is sold, she does not seek a superannuation splitting Order.
With the B Street, Suburb C property being sold, from the net proceeds of sale the Applicant should receive the balance of proceeds of sale after discharge of the mortgage debt (about $314,950), and, having retained assets worth $52,666, leaving the Applicant with a total of $367,616, the Respondent will need to pay her $142,982.
In these circumstances, the Respondent will retain:
(a)D Street, Suburb E property: $480,000
(b)CBA accounts: $69,157
(c)His shares: $1,040
(d)His car: $6,000
(e)Cryptocurrency: $23,157
(f)His superannuation: $345,534
A total of $924,888
Less:
(g)D Street, Suburb E mortgage debt: $157,766
(h)CBA debt: $75
(i)Pay Applicant $142,982.
leaving net $624,065.
Thus, the Respondent will retain his superannuation entitlements. He will retain the D Street, Suburb E property, shares, bank account, car, cryptocurrency, as discussed above, (subject to having had to pay the Applicant $142,982).
And the Applicant will retain her assets currently in her name, $52,666, and receive the net proceeds of sale from B Street, Suburb C, $314,950, plus a payment from the Respondent of $142,982, all totalling $510,598. With such assets, she can rent premises and further invest to secure an income.
The Court is of the view that it’s proposed property adjustment Orders will represent a just and equitable property settlement between the parties.
The Court’s Orders will reflect the above matters. Should the property be sold at a price greater than the parties’ agreed value of $740,000 then the parties can make adjustments consistent with these Reasons.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 26 August 2021
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