Balzia and Covich

FAMILY COURT OF AUSTRALIA

BALZIA & COVICH

[2010] FamCA 390

FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Property acquired before marriage – Ability to continue to earn income – Section 75(2) Factors

Kennon (1997) FLC 92-757
Tomasetti (2000) FLC 93-023
Clauson (1995) FLC 92-595

APPLICANT:

Ms Balzia

RESPONDENT:

Mr Covich

FILE NUMBER:

PAC

4797

2008

DATE DELIVERED:

7 May 2010

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Collier J

HEARING DATE:

3 - 6 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Pender

SOLICITOR FOR THE APPLICANT:

Tony Vella

COUNSEL FOR THE RESPONDENT:

Mr Dura

SOLICITOR FOR THE RESPONDENT:

Kazi Portolesi

Orders

That the husband MR COVICH pay to the wife MS BALZIA within one month from the date of these Orders the sum of $200,750.
That until payment of the amount specified in (1) above, the husband shall continue to pay to the wife the weekly sum of $250.
That the wife within seven days of payment to her of the amount specified in (1) above shall vacate and thereafter remain away from the premises at S.
That subject to the foregoing orders, both parties shall be solely entitled both at law and at equity to all real estate, personal property, contents, chattels, motor vehicles, banks accounts, money held on investment and superannuation entitlements presently in their possession.
That liberty be granted to either party to restore the matter to the list upon giving seven days notice in the event either party fails to comply with these Orders or further directions are required.
That all outstanding applications and cross applications be and are hereby dismissed.
That all issues be removed from the Active Pending Cases List.
That all material produced on subpoena be returned not before fifty-six days from the date of these Orders.
That leave be granted to both parties to make and proceed with costs applications. The parties are to exchange details of the orders sought by each of them and the basis upon which the orders are sought. At the expiration of fourteen days after the exchange of those particulars, the parties are to contact Justice Collier’s Associate to arrange a date for hearing of the issue.
Noted that Ms Pender has indicated that she may require the solicitor acting for the husband to give evidence in relation to the Costs Agreement between he and the husband.
That the wife’s legal representative notify the husband’s solicitor when giving particulars whether or not he will be required for cross examination.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4797 of 2008

MS BALZIA

Applicant Wife

And

MR COVICH

Respondent Husband

REASONS FOR JUDGMENT

Introduction

This matter, which has been bitterly contested, concerns the distribution of the party’s property following a breakdown of their marriage. The assets of the parties were almost exclusively in the husband’s possession and control. There is a significant pool of assets. The wife seeks an order that would give her some 20 per cent of the assets of the parties. There was also some discussion concerning whether or not a maintenance order should be made, and whether it could be made on a capitalised basis. However, it seems to me, that the wife has conceded that if proper provision is made for her by way of 75(2) factors, and an adjustment thereafter, that the application for maintenance is not pressed.
The husband seeks that the wife be recognised for the amount that she bought into the total pool of assets; a very small percentage, and that there be no other effective adjustment by way of contribution, and that so far as 75(2) factors are concerned there should be no adjustment whatsoever. Accordingly, the husband contends that the wife would retain that which she already has, and receive no further adjustment.
Factually, there is not a great deal in dispute as to the history of this matter. However, it is clear that there is dispute as to when the parties, in fact, commenced cohabitation, and I will return to that aspect of the matter shortly in these reasons for judgment.

Brief History

The history of the matter though, that enables it to be more clearly understood, is as follows:
a)The wife was born in 1957 and the husband in 1958;
b)The husband has been previously married, having married in 1979. He commenced employment with R Company that same year, and in 1982 purchased a semi trailer for trucking purposes;
c)In 1986, he purchased S property for some $58,000: that property is presently occupied by the wife;
d)The husband [sic] first married in 1990;
e)In 1994, the husband commenced working in the metals industry, and in 1994 he also separated from his first wife. In the same year, the wife divorced her first husband;
f)In 1996, the husband incorporated a company, H company, which has been a significant item in these proceedings;
g)In 1998, the wife purchased a property in Europe, in her name;
h)In 1999, the husband purchased a property at D for $124,000;
i)In 2000, the wife commenced employment in Europe, in health services;
j)In 2002, the husband purchased a property in Europe, and in the middle of 2003 he travelled to Europe. He and the wife met each other, I am satisfied, in December 2003;
k)In 2004, the wife travelled between Australia and Europe on three occasions with the husband paying the wife’s costs of that travel;
l)In August 2004, the wife left Europe to travel to Australia and, it is her case, commenced to live with her husband at S. She had to leave Australia on a number of occasions for immigration reasons;
m)In June 2005, the husband purchased, using H Company, the properties W1 and W2;
n)In December 2005, the husband assisted the wife by providing funds of approximately $10,000 for the cost of a back operation;
o)The husband, in late 2005, using again H Company, purchased another property in Europe, although it seems to be acknowledged that property is now his;
p)This was a matter in which the parties had attempted to enter into a pre nuptial agreement, and that document, it seems, was executed in November 2006, after the parties had married. There was litigation concerning the binding financial agreement, as it was described, and in August of last year I found that the document was not a binding financial agreement and had no force and effect;
q)In 2007, the husband had purchased a unit at M;
r)The husband, in mid August 2007, sold the business conducted by H Company receiving some $1.1 million and an allowance for GST, and thereafter worked in a concern, B Company, until that was sold in 2008. There have been some real disagreements concerning that entity, and I will return to it later. The husband used funds to discharge mortgages;
s)In August 2007, the property at P was purchased through H Company;
t)The husband says that he retired from any form of employment in December 2007;
u)Following orders of 27 August 2009, orders which required the payment of monies to the wife by the husband, the husband made those payments except for a glitch in the latter part of 2009.
I will not go into the procedural history of this matter in any detail but, as a result of the various applications that have occurred in this case, there has been a very significant number of appearances and orders made by this Court.

The Parties’ Applications

The current proceedings were commenced by an amended application of the wife filed on 23 December 2008.
The husband filed an amended response to that amended application on 25 February 2009.

The Parties’ Affidavits

The wife relied upon her own affidavit material, an affidavit of Dr DE, and a number of statements of financial circumstances.
The husband, for his part, relied upon his own affidavits and statements of financial circumstances.
There was before me, in addition, an affidavit of Ms W, an expert valuer, which was filed in court at the commencement of the hearing before me.
In addition, there has been a significant body of material which has been tendered and has become exhibits in the proceedings before me.

The Wife’s Case

The wife’s case is that she was asked to come to Australia by the husband, and that they had, indeed, entered into a de facto relationship shortly after meeting each other at the end of 2003. She says, upon coming here, she assisted the husband in a number of ways. She asserts that she helped him in his business by entertaining and taking messages. She says she travelled with him in his truck, and gave him assistance whilst so doing by dealing with documents for him.
She asserts also that she was significantly involved with the property in Europe that the husband was renovating, in that she was the person who dealt with tradesmen, and made arrangements for work to be carried out. She does not assert, however, that the money that was used to pay for that work came from her monies, save and except, that at the very last part of her evidence she gave evidence that she had put in some money of her own. That, to my knowledge, is the first time that has ever been asserted.
She says that, in respect of what she did in the truck, and the sorting of metals, that she did this whilst in a position of great difficulty to herself because of a back injury, because the husband insisted that she do so, and she was in some way overborne by him.
Her application for maintenance, as I understand it, is that if she does not receive sufficient monies by way of property settlement, she would like to receive some money, if possible, by way of a capital sum. However, it seemed to me that by the conclusion of addresses, that application had almost effectively been abandoned.

The Husband’s Case

The husband’s case is that, at all times, he introduced the very great bulk of assets, that he provided significant amounts of money for the wife for her travel, her upkeep in Europe and Australia, and that he gave her an amount of money, as she has described it, an allowance, which she was able to treat entirely as her own monies, and save and apply to her own use. As I have said, the husband contends that there should be no adjustment made to the wife by virtue of her difficulties with employment and her ill health.

Issues Requiring Determination

It appears to me that the significant issues to be resolved are:
a)The date of commencement of the party’s relationship;
b)The injuries that the wife suffers from; what work she has done and can do;
c)Any contribution she may have made in money terms to the work done in Europe;
d)The husband’s assets, and his income, which are very seriously challenged by counsel for the wife.
As far as the date of commencement is concerned, the wife has relied heavily on material that was given to the Department of Immigration in respect of the wife’s status, and ability to travel to and remain within Australia.
The husband has signed various forms in relation to the wife coming to live in Australia, and there was an application filed in relation to the wife remaining in Australia outside a visa period, because she had recently undergone the back operation in 2005, that I have previously referred to. The documents produced from the Department of Immigration and variously tagged, would seem to indicate that the husband has conceded that there was a relationship between them for some two and a half years. In statutory declaration that he filed, he said that he had met her in December 2003; they had kept in close contact. He believed the relationship to be genuine as he had proposed to her.
In another document, which was sponsorship for a partner to migrate, he was asked specifically:
When did you and your partner make the decision that you both wanted to commit to a long term spouse or interdependent relationship or intended to marry?
And that appears to have been filled in with a date of August 2004. The evidence does not alert me, it would seem, to any other date. However, in the next question, he was asked:
When did you and your spouse begin an interdependent relationship?
And he indicates for that the month of February 2004. Because it is of such significance, I will return to this matter shortly.

The Evidence Before Me

The evidence that I heard in this matter was given by the wife, by the husband in several different batches, and from the two experts, Dr DE and Ms W. The wife was cross examined at some length by Mr Dura about the evidence she had given. She had said that all the invoices in relation to the European property were paid by him, and he sent the money for this to be done. She asserted she went to the premises nearly every day between May and August 2007. There was some argument as to who had engaged an electrician but, to my mind, nothing of great significance turned on this.
She gave evidence that she had gone on two days to clean a property of the husband’s at W. She said that she could handle work of this kind. She said that she had back problems at the time. She said she had been told, on an earlier occasion, that she could not work because of her immigration status, by an officer of Centrelink. There is nothing before me to confirm that this was, in fact, told to her. She said she had gone to Centrelink because she thought they might help with training. She had heard people talking about this. She said she had made no firm enquiries as to where she would live after these proceedings. She could not do so because she had no money.
She agrees that she is living in the house provided by the husband, and she said that has nothing to do with her not looking. The fact is she has no money. She was asked about various matters in her statement of financial circumstances, particularly where she had claimed an amount payable for rates and levies of $20, and said that she had not read that before she signed it, and she had no idea what it was for. She says that she now pays for some work to be done in the garden in S property. She says that she does not spend $50 a week on hobbies. It was put that during the period she claims that they lived together, the husband slept at his mother’s. She denied this to be the case. She said that he had a key which the husband denies.
She said up to March 2004, there was no combination of monies. She saw him in June 2004 when he came to Europe, and they both left in August for Australia. She said that the husband lived with her, and at no time, again she asserts, did he stay with his mother. She said she stopped work in May 2004, having been in that job for about four years. She said the parties had spoken of marriage. She said that she still has her own property in Europe. She then gave evidence of money in a safe of about $5,000. She said that she had sent her son money from her savings, but she cannot remember when she has sent money to him. Her property is vacant. She has tried to rent it and sell it but cannot achieve that.
She said, and this was the first time this had ever been heard, that her son had some sort of equitable interest in the property in Europe, amounting, on her assertion, to one half. She said that there had been no formal attempts to have the property sold.
She said that the last time she went in the truck with the husband was mid 2008. She said in the truck she answered his mobile phone and made notes. She said she went to job sites. She said she cannot lift, but notwithstanding that, she had to pick up metal. She said that:
He made me do it. He shouted at me. Sometimes he made me go in the truck.
It was put to her that there was no mention of him making her go in the truck, and she said that she did not explain it properly, and did not go into detail. She asserted that the husband had shouted at her. When it was put to her that that was false, she said it was true. She said that other persons helped her husband, a Mr G and a Mr C. It was put that she had exaggerated the time she spent in the truck and she said no. She asserted that she was telling the truth.
It was put to her that they had bought home only a few pieces of metal, and she said: No. She said there had been bins full. She gave evidence that she had saved up to $14,000 or $15,000 from the money that the husband provided her.
She was then questioned in detail about the movement of monies between various accounts, the setting up of an interest bearing deposit, the closing of that interest bearing deposit, and monies going back into an account. She was asked about payments on various dates. In that evidence I am satisfied that she was telling, as best she could, the financial history which was somewhat detailed, and somewhat convoluted. She indicated that she had forgotten to put various things in statements of financial affairs. She said she knew that H Company had been sold in mid 2007, and he continued to work with metal otherwise. When asked why she had not told certain things earlier she said:
I thought you would ask.
She said she had told the doctor, who I presume to be Dr DE, about being required to help on the truck, and said that when she saw him on 15 April it was for less than an hour, and she did not tell him all of the details concerning illnesses. She said she did not tell him about the hours in the truck, and she said it would be two or three hours a day, she thought, but did not recall. She again said she did not go into detail. She had not told her general practitioner, Dr CN, about picking up and sorting metal, and she said she did not because he would have told me to stop. It was put to her that she did not disclose this to Doctor. She said that her husband would not take no for an answer.
She said she had pain before her activities that she alleges she carried out but said that she assumed what she did had made it worse. She agreed that the husband had paid the physiotherapist, and for an operation up to a total, she said, of perhaps $6,000 to $7,000. He paid for all medication.
She then gave evidence that she had put some of her money into the property in Europe that the husband was renovating. That was the first time that evidence had been given. She said that the house that she currently lives in was in a dreadful state when she arrived, and that she had to clean it. It was put to her that her evidence as to what she had carried out was exaggerated, and that she could not have done the things she said because of the pain she was experiencing, and she answered that she had to.
In re-examination, she indicated that she was not computer literate. She had finished secondary school. She said that she pays electricity and telephone in the premises she presently occupies.
The husband was then called, and gave evidence at length, and as I say, with several interruptions. He said that he had heard the wife’s evidence about the invoices, and he had first seen them about a month ago. It was put to him that the wife had said that the document had been provided to him some time ago, and he said it was not true; he had not seen them until approximately a month ago. He said the wife had indicated to him that she had torn them up.
He said that he did not agree with what the wife asserted about the cleaning in 2004 and 2007. He said she rode with him in the truck but did not do any work in respect of that: that he had helpers, a Mr T, a Mr I and a Mr C. He said that he did not deal with scrap in his back yard, and that he had never asked her to sort scrap. He said that he had two yards for scrap. He said that he had never yelled at her. He said that he took her to the doctor, and paid all the bills in relation to the doctor and medication, and that she had a Medicare card but he did not think it covered her indebtedness in full, and that he paid any gap.

At that point, Dr DE was called. He was asked about the effect of a prolapsed disc at L45, and he gave an explanation as to the disc being of gelatinous construction, and that in certain circumstances it would cause pain and sciatic pain. Surgery could improve the sciatic pains, and there had been a trimming of the disc in this case. To Mr Dura, he said that the report to him had been that the wife first experienced pain in Europe, where she worked up till 2004. There was no material to assist him in relation to the treatment she had received in Europe. He said that he had asked questions and she answered. He did not explore in detail her work. He said, in the truck, there was talk of doing paperwork.
She did not give any explanation or tell him of any other tasks she performed, and he had asked her about those tasks. She said she had difficulty getting in and out of the truck. He said, based on a history, observation and x-rays, that he had formed the opinion set out in his report. She did not tell doctor about working for the husband cleaning homes at various times. She had never told him about sorting metal.
The husband returned to the witness box, and was further cross examined. Firstly, he was asked about the relationship with the wife which he said he considered to be a boyfriend and girlfriend relationship up to marriage, not a de facto relationship.
Asked about various matters with the Department of Immigration, to which I have already made reference, it was put to him he told them he was in a de facto relationship before 2006. The husband said that he did not consider it to be a de facto relationship. He said that he had thought of it as a boyfriend and girlfriend relationship. He said that he cannot write, and has a full time bookkeeper. He signed papers where appropriate. He knew that the wife’s application was based on a de facto relationship, and he said he supported her and saw documents. He said he would sign anything for her to come to Australia, and that he said he was here, that is in court, to tell the truth. He said that they had been engaged to be married since June 2006.
Thereafter, he was questioned closely about matters financial. He was asked about trucks, about cars, and about various amounts of money that have been received. Particularly, he was cross examined about the business, B Company. He asserted initially the sale price was $87,000, but having seen a document from the solicitors acting for him, he conceded that the total purchase price was $95,000. That money, he said, has not yet been disbursed. There needs to be an adjustment between he and Ms P for some wages on her part and there is a question of capital gains tax.
He was asked about household contents, and there was discussion about an amount he had disclosed when applying for a Viridian loan on 30 November 2005. It was put to him that he had shown the contents as worth $50,000, and he agreed that this was so, and that was an amount for insurance purposes but not necessarily replacement value. He conceded that H Pty Limited pays the premiums.
It was put to him that he had not mentioned the European properties in his last form 13, and this clearly was the case. He concedes that he has complete control of the company assets. He was asked about an amount of $10,000 in his HSBC account in September 2008, and was unable to provide, to my mind, an understandable explanation.
He said that his bookkeeper does all the collection of documents and management of documents for him. He was then asked again in detail about a number of accounts that were operated, particularly account 7214, and asked about activities in and out of that account. It was put to him that he had repaid over $1 million of loans over 10 years. He said that rental income that he had was applied to the loans as they then stood. He gave some evidence of the amounts that he was receiving for M property and P property. He said that those amounts, however, go into the superannuation fund, and that they are owned by the superannuation fund with H Company as the trustee.
He was asked if he had disclosed the existence of his European properties to the Australian Taxation Office, and upon my granting a certificate, he conceded that he had not.
At that stage, Ms W was interposed. She gave evidence of the method which she had used to value both H Pty Limited and the superannuation fund. She had used the net tangible assets method because any other method would have not produced anything like that figure. In other words, if other methods were used, a less favourable figure for the wife might well have been produced. I am satisfied that Ms W, and for that matter Dr DE, were both experts who gave evidence in a perfectly appropriate and proper manner, and that their reports were in no way shaken or interfered with. I am satisfied, therefore, that so far as they are both concerned, I can accept their reports and their evidence as proper expressions of expert opinion.
The husband then continued to Ms Pender, and was asked about the acquisition of M property and various other properties. It was put to him that he had not been completely frank. He said that he was not hiding anything. Asked again about staying at the wife’s place in Europe, he said that it had only been sometimes. He said that he had certainly spoken to the wife’s mother. It was put, and he agreed, that she came to Australia to live with him and marry him. It was put that she had done housework in Europe, and he denied this.
He said that, because of her disability, they had to help each other with work in the house. She does what she can. He said that the wife cooked for herself but not for him. He said that he did not insist only on fresh food; food from a freezer was equally acceptable. He said that he fixed the clothes line following a complaint by the wife that it was too tall for her.
He said she came on the truck about once a week. He again repeated he had a bookkeeper. He said she did not sort metal, and that there was no requirement by him that she do so. He said she did no paperwork in respect of the business, again referring to the bookkeeper.
He said that he had not shouted at her. He said that there was an argument in July or August about tax, when he had given her a form which required her signature because he was paying an amount of money to her at that time of $350 through H Pty Limited, and he said he did not tell her what to do. He said that he had not removed furniture from the former matrimonial home then occupied by the wife. He said he had not tried to intimidate her. Asked about if he thought the wife should get nothing, his answer was:
She gets what she deserves.
He agreed that he had not paid her for three weeks, and said that would be made up and, I understand, that that was done. He agreed that, at one stage, he had told the Department of Immigration that he had an income gross of $73,000 per year.
In re-examination, he confirmed he had had a bookkeeper since 2004. He was asked about various motor vehicles, and he said that he had worked after the sale of the H business, and that there was, in the agreement for sale of that business, a non participation clause for a period of five years which would expire in the year 2012. That then concluded the evidence and, thereafter, I heard most helpful addresses from the counsel for each party.

Findings

It seems to me that the matters upon which I need to make findings are: firstly, when the de facto relationship between the parties commenced; the state of the wife’s health and her injuries; her capacity for work; the contributions of her own money to work in Europe; the situation concerning the evidence of the husband’s assets and the husband’s income. I have already made mention in these reasons for judgment as to the need to determine when the parties’ de facto relationship commenced. The husband maintains that, until marriage, there really was no de facto relationship. However, I am satisfied that the husband and wife, from sometime in 2004, were satisfied that they were in a committed relationship to each other to the exclusion of other people.
That is, indeed, what the husband has asserted in material supplied to the Department of Immigration. I understand him to say that he would have said what it took to get the wife to Australia but, unfortunately, he cannot now say: I said it then, but it was not true. These are documents of significance. They are prepared as declarations. I am satisfied that the answer to question 12 in the application for sponsorship received by the department on 16 June 2008, indicates that a relationship of spouse or interdependent type commenced sometime in February 2004. Of course, the evidence in this case discloses that the parties did not live together for the whole of that period onwards.
There were the times that the wife was in Europe, and the husband was in Australia. There were times that the wife came to Australia, and had to leave again because of immigration requirements. However, physical separation, i.e. living apart, is not necessarily capable of itself, of severing the relationship. I am satisfied that the husband had the intention that he and the wife were in a relationship, other than boyfriend and girlfriend; that they were moving towards marriage, and that when they were together they lived in a household as husband and wife, but whilst apart the relationship still endured. Therefore, I am satisfied that I can find that the de facto relationship between these parties commenced in about February 2004.
The wife’s physical state, or her injuries, are a matter of some concern. Perhaps I use the word injuries incorrectly. What doctor has made clear is that she has difficulty; she has had back surgery, and it would appear that her back problems will continue into the future. My difficulty is: how do I then relate that to, and reconcile it with, the wife’s assertions as to the work she did? The wife now seems to say to me: it does not matter how bad or how sick or how sore I was, the husband made me do certain things. This was something that her counsel endeavoured to press upon me on a number of occasions; that because of the way in which the husband had treated her she had been required to do things, at times, against her will.
Leaving aside the question of who I believe where the parties are in conflict about this, it seems to me that there is contradiction in the wife’s saying, on one hand, that her disability was severe and on the other, she was doing all of the things that she says she did. The husband says that she came on the truck with him occasionally. I accept that she did accompany him from time to time, and I accept it was probably more than once a week. However, I do not accept it was every day nor do I accept it was for the hours that the wife asserts. I am satisfied that whilst she was with the husband in the truck, she gave him some small help in relation to answering telephones and dealing with paperwork such as addresses and other matters.
I am satisfied that she was capable of doing some housework, but certainly not the entirety of the housework. I am satisfied that I can accept the husband when he said they shared household tasks. It is impossible for me to make any accurate assessment as to who did what, but on the whole, I accept that the husband helped with the vacuuming, and that he did some cooking for himself. I am satisfied that, on the evidence I have heard, the wife did a majority, but by no means all of the housework and homemaking duties within the relationship, whilst the parties lived together.
The wife gives evidence of cleaning in various places owned by the husband on the basis of them being vacated for rental or sale. I am satisfied that it can be accepted that she went to those places and worked on them for periods of time. However, I am not satisfied that she worked on them for as long as she would assert.
One of the major disputes between the parties is whether the wife was required to deal with any scrap metal. The wife would have me believe that there was a requirement, that when scrap was brought to the home, she was required to pick through it and particularly extract copper, an expensive metal. The husband says she did no such thing and, indeed, points to the fact that the material that had been collected was not deposited at the home, but elsewhere where he had premises. On balance, I am satisfied that the wife did a minimal amount of removing certain small items of metal from larger masses of metal. However, I am satisfied that she was not forced or bullied into doing this as she asserts.
The wife’s credit, to my mind, is somewhat affected by things that were left late, or not disclosed at all, until the hearing. I am concerned that she did not make the assertion to Dr DE that she was required to deal with metal, although she does talk about going in the truck. I am concerned that her mention that her property in Europe is really owned 50/50 with her son, and I am concerned that I would hear for the first time, the allegation that there had been money in a safe in Europe.
However, I am satisfied that, other than these matters, the wife did her best to tell the truth.
It was put to the husband quite forcefully, that he was indeed contemptuous of this court, and that he had deliberately misled the court. This was on the basis of his evidence which was at times unsure and uncertain. I am satisfied that, in respect of the sale of B Company, he was less than accurate and forthcoming. However, I did not find him a witness trying to be deceitful. Whilst he is clearly a man who has worked extraordinarily hard to achieve the not insubstantial wealth he holds today, I accept he is a person who does not read and that from 2004 onwards he has had the service of a bookkeeper who, I am prepared to accept, has had the responsibility of paperwork coming into and going out of any business concern he is involved with.
He has an accountant; that accountant has provided certain material. Yes, the husband was unsure about various amounts of money, and clearly in filling in forms 13 there were matters that were of concern. Equally, of course, the wife’s form 13 raised difficulties as to amounts, and a particular amount, that she included.
I am not satisfied that the husband set out to deceive me or to conceal any monies from me, save and except possibly the B Company situation which, I believe, can be rectified in a manner that I will come to shortly. I am satisfied, therefore, that neither of these parties, to any significant extent, sought to lie to the court or to deceive it. Certainly their recollections are different, and that is perhaps to be expected. The findings that I have made are therefore based on the evidence, and my assessment of the parties. I was not satisfied by the conclusion of the evidence that the husband had deliberately concealed any assets. I am not satisfied that he has concealed any income.
I am satisfied that he is a man who, whilst having control of significant assets, is by no means capable of, on paper, dealing with the implications and subtleties of the requirements that he is to meet. That then is the evidence and what I should make of it in dealing with this matter.

The Law to be Applied

I turn then to the law to be applied. The provisions of section 79 of the Family Law Act clearly define the court’s power and obligations in determining applications for property settlement. The court has a discretion to make orders altering the interests of the parties, provided the court is satisfied that such orders are appropriate, just and equitable.
By section 79(4), the court is obliged to take into account the financial and non financial contributions made directly or indirectly or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation, improvement of any property. The contribution made by a party to the marriage to the welfare of the family in effect of any proposed order upon the earning capacity of either party are matters referred to in section 75(2), so far as they are relevant as provided in subparagraph (e), and any other order made under the act affecting a party or a child. I do not have to consider child support in this case.
Thus, in assessing the entitlement of each party, there is both a retrospective element relating to contribution and a prospective element relating to the matters referred to in section 75(2). Thus, I must first determine the assets, liabilities and financial resources of the parties; secondly, I must consider all relevant contributions and, where possible, assign a percentage entitlement. Next, I should consider the prospective component proposed by section 75(2), and identify any alteration then to be made, and finally, I must stand back and look at the result then arrived at and determine if it is, in all the circumstances, just and equitable.

The Assets and Liabilities of the Parties

Then, firstly I must deal with the assets and liabilities of the parties. There was significant agreement between the parties as to what should or should not be included in the pool of assets. I have determined that the pool of assets is as follows:
a)The property at S at $360,000;
b)The property at D at $250,000;
c)A CBA account in the husband’s possession being a viridian account of $185,806;
d)The property, H Company, valued by Ms W at $804,401;
e)The Covich Super Fund, valued by Ms W, in an agreed amount of $579,653;
f)The husband’s HSBC account at $6788;
g)The property in the husband’s name in Europe $248,000.62;
h)The husband’s household contents, which I take as a concession against interest, to produce a figure of $10,000;
i)The flats at $131,118;
j)The Hilux vehicle at $1500.
I then deal with, as best I can, the proceeds of sale of B Company. The husband asserts there is to be a half and half distribution after certain adjustments are made. I have no precise figures, but I am urged, and I will include a figure of $40,000 (“k”) for the husband’s share of the sale proceeds of that business. I also include, as I believe I am compelled to, an amount of $86,000 that is clearly shown by Ms W as a loan owed by H Pty Limited (“l”), in arriving in its value, to the husband.
Accordingly, the assets of the husband (“a” to “l”) total $2,703,328. From that I deduct the Viridian line of credit at $185,806.
So far as the wife’s assets are concerned, I find that they are as follows:
a)A property in Europe at $100,000;
b)Her bank at $100; and
c)Her jewellery at $200.
I will not include, so far as is urged upon me by Mr Dura, the funds that the wife was paid post separation or payment to any orders.
That produces these figures: assets which might be seen to be in the control of the husband of $2,517,522, and in the wife’s hands of $100,300 for a total of $2,617,822. This is the net pool of assets.

Contribution

I turn then to the contributions that have been made to that pool of assets. If one looks at the amount on today’s values of capital introduced, the wife’s contribution is the sum of $100,300. As a percentage of the total previously arrived at, that is some 3.83 per cent.
The husband, for his part, contends that I should not increase that percentage, but simply recognise it. It is the case of the wife, that there should be a significant increase to it by virtue of the contributions that the wife has made since the commencement of the party’s relationship, which I have already found to be early 2004. In that regard, it is clear that the wife made contributions by assisting the husband in the management of the renovations of his property in Europe. I am satisfied that, during the course of the party’s cohabitation, the wife did something more than half of the household and house chores, whilst the parties lived together.

I am satisfied the wife, from time to time, accompanied the husband in the truck, and whilst there, gave him assistance by answering the mobile phone and attending to some degree of paperwork. I am satisfied that the wife helped entertain business associates of the husband, took messages from them, and gave a limited amount of assistance in that regard. I am satisfied that the wife did some cleaning of premises in relation to reletting or selling of premises, but not to the extent that she has claimed. I am satisfied that the wife was in a position to do some very small amount in relation to sorting of metal, but to nothing like the extent claimed.
This is not a case where Kennon[1] has been relied upon by the wife so as to assert that the tasks she performed were made harder by the behaviour and conduct of the husband. I am, however, conscious that the wife, to some extent, must have been affected by the back condition that she sustained, which included surgery to try and repair it.
[1] (1997) FLC 92-757
The husband’s contributions must be looked at in this fashion. All of the property - save and except the wife’s property in Europe - has been bought into this relationship by the husband. The husband, so far as monetary contribution other than for the acquisition of property is concerned, has paid for all expenses in relation to those properties, whether personally or through a company structure.
I am satisfied that the husband paid, in its entirety, for the work done to his property in Europe, but I am satisfied the wife gave, as I have said, assistance in supervision. I am satisfied that the husband has made a significant contribution by means of the medical expenses he has paid for treatment received by the wife. I am satisfied that the husband has paid monies to the wife, which she was able to treat as her own monies and deal with as she chose because he paid other expenses. The husband’s contributions are significant. However, it seems to me, that in the circumstances of this case a slight adjustment over and above the amount arrived at by way of figures, as to the value of property are concerned, is required.
I would, therefore, be satisfied that an appropriate further adjustment would be in favour of the wife some 3.2 per cent. Thus, I am able to say that by means of contribution, the wife’s entitlement is 7 per cent to the assets of the parties.

Section 75(2) Factors

I turn then to the matters under section 75(2) of the Family Law Act. The first is the age and state of health of the parties. In this case, I am satisfied that the wife has some disability. I am satisfied that the parties are both in their 50s, and apart from the wife’s back condition, I am not aware of any issue of health arising or concerning either party. In the circumstances, it would seem to me that the wife’s back condition is the only matter of difference between these parties.
When I look at the resources and property of the parties, having regard to the findings already reached, it is clear that the husband’s position is vastly superior to that of the wife. The wife asserts that she gave up a job in Europe to come to Australia. I have some difficulties with the concept that that is something that would require a significant adjustment in her favour, because it seems to me that the situation is that her back problem, as she presents her evidence, would have been such that it would have disabled her, so far as working in the health field was concerned in Europe, as much as she asserts it disabled her in Australia. Therefore, to my mind, it is not truly open to the wife to be able to say that she has given up much in Europe that cannot be recovered.
Neither party has the care or control of a child of the marriage. The commitments of the parties to support themselves are set out in their various statements of financial circumstances. The wife says that $400 a week would be an amount that she would find would enable her to live and maintain a standard of living that was desirable to her. However, the evidence appears to be that she has managed on a much lesser amount that the husband has provided to her. The commitments of the parties, to my mind, are of no great significance in this matter. Neither party has the responsibility to support any other person.
I am concerned as to the findings that need be made as to the physical and mental capacity of each of the parties for gainful employment. The husband has said he has retired and, accordingly, his income is from investments that he has built up during the course of his working life. That working life, of course, has extended well beyond the period of time he was in a relationship with, or married to, the wife. I am satisfied, however, that the husband’s present standard of living is one that can be maintained through the investments.
I am satisfied that the wife has some capacity for employment, which I am unable to determine. She has not been able to give me any evidence of any enquiries she has made as to work that might be available to her nor has she been able to say a great deal about what type of work she would be seeking. She points out her lack of education and her lack of computer literacy as matters that might be a bar to her, but in all of the circumstances, she has not endeavoured, so far as the evidence would indicate, to put material before the Court as to the enquiries she has made.
I am prepared to find that she is in no way entitled to any pension within Australia at this time. Indeed, it must be observed that everyone, including myself, is working on the basis that she will be granted the immigration status that she seeks in the next several months. That, of course, whilst it may be said is a real probability, is by no means an assured certainty.
The standard of living of the parties, to my mind, notwithstanding the husband is a man of some wealth, has been modest. That situation has perhaps slightly decreased for the wife since separation. I am not aware of any effect upon a creditor of any orders that I might seek to make.
I must take into account the duration of the marriage, and the extent to which it has affected the earning capacity of a party. In this matter, as I have said, I am not sure what the wife’s situation would have been had she stayed in Europe. I find it difficult to reconcile, however, that with the problems she has experienced with her back, I could conclude that she would have been in a position to continue the type of work she was doing for any period of time. The husband clearly has paid significant amounts on her behalf, and to my mind, it is a situation where she cannot say that the move to Australia completely destroyed a career which she would have been able to maintain had she remained in Europe.
This is a very difficult balancing exercise so far as I am concerned. The counsel for the husband makes it very clear that his position is that there should be no further adjustment made in favour of the wife by virtue of section 75(2) factors. However, I have come to the conclusion that an adjustment is required because of the health of the wife, and her uncertainty as to work in the future, and because of the vast disparity in the property and income of the parties. I do not propose to take into account, as against the husband, that he has a financial resource by virtue of the superannuation fund. It has been included at full value as property and, accordingly, I would not propose to make any further adjustment in respect of that fund.
Doing the best I can, and regarding all of the 75(2) factors together as I am required to do by Tomasetti & Tomasett[2]i, I have come to the conclusion that a further adjustment based on 75(2) factors is 4.5 per cent.
[2] (2000) FLC 93-023

Conclusion

Thus the result would seem to me to be as follows: The entitlement of the wife in money terms for 7 per cent, which I have arrived at by way of contribution, is $183,247.50. The further adjustment, by virtue of 75(2) factors at 4.5 per cent, produces a figure of $117,801.99. Accordingly, the amount that the wife is entitled to is $301,049.49. However, she, of course, has $100,300 by virtue of her property, savings and jewellery.
When one deducts one from the other, a figure of $200,749.49 is produced, which I would round to $200,750. That is the amount that the husband has to pay to the wife to satisfy her claim for adjustment in this matter.
The fourth step requires me to step back, to look at the orders that I would propose to make and see if they are just and equitable. In my view, once the husband pays that amount of money, he still remains in possession of money and properties to the value of some $2.3 million-odd. The disparity remains great. However, I am satisfied that the amount, small as it may seem when looked at in comparison with that which the husband will retain, is a just and proper result for the wife to achieve.
I turn then to the claim for maintenance that seems to be on foot in this matter. It was put to me by the wife’s counsel, that if an appropriate adjustment were made in respect of the 75(2) factors, that there would be, in fact, no further claim in respect of maintenance. I am satisfied that a proper and adequate adjustment has been made, and accordingly, no further order for maintenance is required. If I am wrong in that, I am not satisfied that, as required under section 75, I have any real indication of the possible income of the wife, so as to make a calculation of her needs.
The evidence in this regard was unsatisfactory. Any suggestion or submission that there should be a capitalisation of periodic maintenance must, in this case, fail. Even if I were to consider making a periodic order, there is no demonstration to me of any conduct on the part of the husband, such as was contemplated by their Honours of the Full Court in Clauson[3] when their Honours were considering the need for there to be a specific reason for an order for periodic maintenance to be capitalised, rather than simply a wish on the part of a party in receipt of maintenance that capitalisation should occur. I will dismiss all applications concerning maintenance.
[3] (1995) FLC 92-595
In the circumstances of this case, the orders that I make are set out at the commencement of these reasons for judgment.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier

Associate:

Date: 18 May 2010

[2010] FamCA 390

7 May 2010

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