Bambury and Bambury and Anor
[2020] FCCA 1982
•22 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAMBURY & BAMBURY & ANOR | [2020] FCCA 1982 |
| Catchwords: FAMILY LAW – Property – just and equitable to alter the parties’ property interests – alleged debts to husband’s parents (the Interveners) – argument as to whether advances by Interveners were loans – First Intervener incapacitated and affairs conducted by Second Intervener – declaration that funds advanced were loans to First Respondent only. |
| Legislation: Family Law Act 1975 (Cth) ss.75, 79, 90XT, 117B |
| Cases cited: Bagshaw & See [2019] FamCA 482 |
| Applicant: | MR BAMBURY |
| First Respondent: | MR BAMBURY |
| Interveners: | MS C BAMBURY & MR D BAMBURY (BY HIS LITIGATION GUARDIAN MS C BAMBURY) |
| File Number: | MLC 4203 of 2018 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing dates: | 26, 27 & 28 February 2020; 2 & 3 March 2020 |
| Date of Last Submission: | 3 March 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 22 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Henwood |
| Solicitors for the Applicant: | Bardo Lawyers |
| First Respondent: | In person |
| Counsel for the Second Respondent: | Mr A. Skerlj |
| Solicitors for the Second Respondent: | Delios West & Co |
ORDERS
Subject to Order 2, the Applicant Wife (Wife) and the Respondent Husband (Husband) forthwith do all acts and things and sign all documents necessary to cause the proceeds of sale of the real property situated at and known as E Street, Suburb F in the State of Victoria (Proceeds of Sale), held on trust by the Wife’s solicitors, to be paid as follows:
(a)The sum of $4,625 for payment of the Wife’s rental arrears.
(b)The sum of $133,673.37 to the Wife.
(c)The sum of $102,569.76 to the Husband.
The dispersal of the Proceeds of Sale referred to in sub-paragraphs (b) and (c) of Order 1 shall be deferred until:
(a)The Court hears and determines any costs application by the Husband, Wife or the Interveners pursuant to Orders 13 to 15; or
(b)The Court otherwise Orders.
Personal Property
Each party be solely entitled to the exclusion of the other to all the other property (including choses-in-action) in the possession of such party as at the date of these Orders and without limiting the generality of the foregoing:
(a)The Wife shall retain:
(i)The furniture, personal possessions and like chattels in her home on the date of these Orders; and
(ii)All monies standing to her credit in any bank account in her sole name.
(b)The Husband shall retain:
(i)The Motor Vehicle 1 and the Motor Vehicle 2;
(ii)The furniture, personal possessions and like chattels in his home on the date of these Orders;
(iii)All monies standing to his credit in any bank account in his sole name.
Superannuation
Orders 5 to 7 of these Orders are binding on Super Fund G (Trustee) as Trustee of the Super Fund G (Superannuation Fund) member number ...05.
Pursuant to s.90XT(1)(a) of the Family Law Act 1975 (Cth) (Act) whenever a splittable payment becomes payable in respect of the Husband’s interest in the Superannuation Fund, the Wife shall be entitled to be paid an amount calculated in accordance with Pt.6 of the Family Law (Superannuation) Regulations 2001 (Regulations), using the base amount of $112,500 of the Husband’s interest, provided that such base amount shall not exceed the value of the interest determined under s.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.
Order 5 has effect from the operative time and the operative time for Order 5 is seven (7) business days after service of a sealed copy of these Orders on the Trustee of the Superannuation Fund.
The Trustee of the Superannuation 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 and to give effect to these Orders.
General Property Orders
Unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)Monies standing to the credit of the Husband and Wife in any bank account in their joint names is to be divided equally between them forthwith and the Husband and Wife do all acts and things and sign all documents necessary to close any joint account following the distribution of funds.
(b)Each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other.
(c)All insurance policies shall remain the sole property of the owner named on the policy.
(d)Each party shall be solely liable for and pay and indemnify the other against any liability in their sole name, including any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
(e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
Claims by the Interveners
Pursuant to r.13.03B(2)(c) of the Federal Circuit Court Rules 2001 (Cth) (Rules) the Husband pay the Interveners the sum of $176,700.
Pursuant to s.117B(2)(b) of the Act, the Husband pay the Interveners pre-judgment interest in the sum of $9,247.93.
The Interveners’ claims against the Wife in the Application in a Case filed by the Interveners on 1 October 2018 are dismissed.
Miscellaneous
Pursuant to r.21.15 of the Rules, the Court certifies that it was reasonable for the parties to employ an advocate.
Save and except as provided for in Orders 14 to 16, all extant applications are otherwise dismissed.
The Wife file and serve any submissions in relations to costs, including reserved costs, on or before 7 August 2020.
The Husband and the Interveners file and serve any submissions in relation to costs, including reserved costs, on or before 21 August 2020.
Pursuant to r.21.02(1)(c) of the Rules, the matter be adjourned to the Federal Circuit Court of Australia on 31 August 2020 at 9.30am for Mention.
IT IS NOTED that publication of this judgment under the pseudonym Bambury & Bambury & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 4203 of 2018
| MS BAMBURY |
Applicant
And
| MR BAMBURY |
First Respondent
| MS C BAMBURY & MR D BAMBURY |
Interveners
REASONS FOR JUDGMENT
Introduction
These are property proceedings under the Family Law Act 1975 (Cth) (Act) between the Applicant (Wife) and the Respondent (Husband) where the parties are unable to agree about final orders following the breakdown of their marriage.
The Husband’s mother, Ms C Bambury (Intervener) and father, Mr D Bambury (together referred to as the Interveners) were given leave to intervene with respect to the enforcement of what they contend are loans of certain monies from them to the Husband and the Wife. The Interveners alternatively claim that the monies they advanced to the Husband and Wife should be repaid to them, as these funds are impressed with a constructive or resulting trust.
Issues in Dispute
The following issues are in dispute between the Husband, Wife and the Interveners:
a)Whether the following sums of money are owing by the Husband and the Wife to the Interveners by way of a loan[1], trust, charge or lien[2]:
i)The sum of $147,000; and
ii)The further sum of $29,700.
b)Whether pre-judgment interest should be paid on any monies found to be owing by the Husband and the Wife to the Interveners[3].
[1] Statement of Claim filed by the Interveners, 19.8.18 (Statement of Claim), at [10]-[17], [18]-[22] and [23]-[26].
[2] Statement of Claim, at [27]-[31].
[3] Statement of Claim, at [33].
The following property issues are in dispute between the Husband and the Wife:
a)The weight to be attributed to the contributions of each party at the commencement of the relationship and during the relationship.
b)Whether there should be an adjustment in favour of either party pursuant to any of the factors relevant to s.79(4) and s.75(2) of the Act.
Synopsis
The Court has determined in relation to:
a)The proceedings between the Husband and the Wife, that the proceeds of sale of the property situated at and known as E Street, Suburb F in the State of Victoria (E Street, Suburb F Property), be paid as follows:
(i) The sum of $4,625 for payment of the Wife’s rental arrears.
(ii) The sum of $133,673.37 to the Wife.
(iii) The sum of $102,569.76 to the Husband.
b)The proceedings between the Interveners and the Husband and the Wife:
i)That the Husband should pay the Interveners the sum of $176,700 together with pre-judgment interest of $9,103.94;
ii)The Claim against the Wife is dismissed.
The reasons for the Court’s determination follow.
Background
The Husband was born in Australia in 1970 and is aged 50[4]. The Wife was born in the former Country H in 1986 and is currently aged 34.
[4] Transcript P75:L22-24.
The parties met in City J in the Country H in 2005, and were married and commenced cohabitation in 2006. At the time of the marriage, the Wife was aged 19 and the Husband was aged 36. The marriage was an arranged marriage. One of the Wife’s four sisters is married to the Husband’s brother Mr K and they also live in Australia[5].
[5] Transcript P57:L44-45.
In 2007, the Wife migrated to Australia and the parties then commenced to live with the Interveners at their home in Suburb L. There are two children of the marriage (Children), namely:
a)X, born in 2007, aged 12 (X); and
b)Y, born in 2011, aged 9 (Y).
The Husband and Wife entered into a contract of sale to purchase the E Street, Suburb F Property in 2010 (Contract of Sale)[6] for the sum of $210,000. The Husband and the Wife paid a deposit of $21,000[7]. Settlement pursuant to the Contract of Sale was due in January 2011. Settlement of the E Street, Suburb F Property took place in January 2011 and the property was registered in the name of the Husband and the Wife.
[6] Affidavit of the Intervener, filed 1.10.18, at [16] and Exhibit “B-2”.
[7] Interveners’ Case Outline Document (For Final Hearing), p.2.
The E Street, Suburb F Property remained unoccupied, whilst the Husband undertook renovation work at the property. The Husband and the Wife continued to live with the Interveners at their home in Suburb L until separation on 28 December 2016[8], when the Wife and the Children vacated the Interveners’ home.
[8] Wife’s Affidavit, filed 19.4.18, at [6].
On 6 February 2018, the Wife filed a sole Application for Divorce. A Divorce Order was made on 1 May 2018[9].
[9] Husband’s Affidavit, filed 22.8.18, at [8].
The E Street, Suburb F Property was sold during the course of these proceedings on 7 June 2019 for $250,000. The net proceeds of the sale are $240,868.13[10]. At the time of the sale of the E Street, Suburb F Property the renovation work was incomplete and the advertising for the E Street, Suburb F Property included the following[11]:
Incomplete works in the bathroom need finishing off as does the laundry which is non-existent.
[10] Wife’s Trial Affidavit, at [37] and Annexure “N”.
[11] Exhibit R1.
Procedural History
The Wife commenced these proceedings by filing an Initiating Application in this Court on 19 April 2018 (Initiating Application). The Wife sought final property orders that included:
a)The interests of the Wife and the Husband in their property be altered in accordance with s.79 of the Act.
b)The Wife be relieved of the obligation to precisely specify the orders she sought until such time that there had been full disclosure and assessment of all matrimonial assets and resources and the Wife have leave to amend the orders that she sought subsequent to there being full disclosure.
c)Any other order that the Court considered appropriate, just and/or equitable in the circumstances.
On 19 April 2018, the Wife also filed an affidavit (Wife’s April 2018 Affidavit) and a Financial Statement in support of her Initiating Application.
These proceedings first came before the Court in the Duty List on 28 May 2018. On that occasion, the Wife was represented by her solicitor and the Husband was self-represented.
On 28 May 2018, the Court ordered that the parties attend a Conciliation Conference on 21 August 2018 and listed the proceeding for further Mention on 23 August 2018. The Court also made Orders by consent (28 May 2018 Orders) that:
a)The Husband within 21 days file and serve a response, affidavit and financial statement.
b)The parties within 21 days make discovery of all documents relevant to the determination of the parties’ interest in property, including but not limited to:
i)Copies of all bank statements including credit cards and mortgage accounts, for accounts held in their name or in the name of any entity in which they had an interest for the period 1 January 2016 to date;
ii)Individual tax returns of the parties and notices of assessments for financial years ending 30 June 2015, 2016 and 2017;
iii)Superannuation account summaries for the financial year ending 30 June 2017 and the most recent superannuation summary;
iv)Details and account summaries for any share trading activity and share trading account held in the Husband’s name or in the name of any entity which he holds an interest for the period 1 January 2011 to date.
c)The E Street, Suburb F Property be sold at public auction within 120 days and the proceeds of sale be applied as follows:
i)First, to pay all costs commissions and expenses of the sale;
ii)Second, to discharge the mortgage;
iii)Third, the balance of the proceeds to be held in the Wife’s solicitors trust account.
d)Pending completion of the sale of the E Street, Suburb F Property:
i)The Husband had the sole right to occupy the E Street, Suburb F Property and the Husband was to pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the E Street, Suburb F Property as they fell due;
ii)The parties held their respective interests in the E Street, Suburb F Property upon trust;
iii)Neither party was to encumber the E Street, Suburb F Property without the consent in writing of the other party.
e)Liberty was reserved to either party to apply with respect to the terms, conditions and execution of the sale of the E Street, Suburb F Property.
The 28 May 2018 Orders included a notation that:
The parties both agree that the real property requires renovations to be completed prior to the real property being sold at public auction.
On 10 August 2018, the Wife’s solicitors caused to be issued subpoenas for the production of documents held by the ANZ Banking Group (ANZ Subpoena) and the Commonwealth Bank of Australia in relation to the Husband, for the period 1 January 2016 to the date of the subpoenas.
On 21 August 2018, a Conciliation Conference was held before a Registrar of the Court. The Wife attended with her solicitor and the Husband attended without representation. Prior to the Conciliation Conference, the Husband had failed to comply with the 28 May 2018 Orders. The Husband had failed to file a response, affidavit or financial statement, or to comply with his discovery obligations referred to in paragraph 17(b). As a result, the Registrar Ordered that the Husband pay the Wife’s costs of $1,650 that were thrown away as a consequence of the Husband’s failure to comply with the 28 May 2018 Orders (21 August 2018 Costs Order).
On 22 August 2018, the Husband filed a Response (Response), Financial Statement (Husband’s Financial Statement) and supporting affidavit (Husband’s August 2018 Affidavit). These documents indicated that the Husband was self-represented. The Husband’s Financial Statement and the Husband’s August 2018 Affidavit were witnessed by a solicitor. When the Husband gave evidence, the Husband said that this solicitor had prepared the documents which he filed on 22 August 2018 and that this solicitor was acting on his behalf in this proceeding. No notice of address for service has been filed indicating that the Husband has ever been represented by a solicitor at any time in this proceeding.
The Response sought final orders that included:
a)Within 120 days the E Street, Suburb F Property be sold at public auction with the proceeds of the sale be applied as follows:
i)To pay all costs, commissions and expenses of the sale;
ii)To discharge the mortgage;
iii)To discharge a loan to the Interveners;
iv)The balance of the proceeds be held in the Wife's solicitors trust account.
b)Pending the completion of the sale of the E Street, Suburb F Property:
i)The Husband have the sole right to occupy the E Street, Suburb F Property and that, during such right of occupation, the Husband pay all instalments pursuant to the mortgage and all rates and like apportionable outgoings of the E Street, Suburb F Property as they fall due;
ii)The parties hold their respective interests in the E Street, Suburb F Property upon trust; and
iii)Neither party encumber the E Street, Suburb F Property without the consent in writing of the other party.
c)The Husband be excused from further particularising the orders he sought pending completion of the sale of the E Street, Suburb F Property.
d)Such further orders as the Court considered appropriate.
The proceeding next came before the Court on 23 August 2018. The proceeding was then listed for final hearing on 19 October 2018, with an estimated hearing time of 1 day and trial directions were also made.
On 1 October 2018, the Interveners filed an Application in a Case seeking orders that they be granted leave to intervene in the proceeding (Interveners’ Application in a Case). The Interveners’ Application in a Case was supported by an Affidavit of the Intervener, filed on 1 October 2018[12] (Intervener’s September 2018 Affidavit). The Interveners’ Application in a Case was made returnable on 19 October 2018, being the date the proceeding was listed for final hearing.
[12] Affidavit of the Intervener, affirmed 27.9.18, filed 1.10.18.
The Wife filed an Amended Initiating Application on 5 October 2018 (Amended Initiating Application) seeking final orders that:
a)Within seven days, the parties do all such acts and sign all such documents as may be required to list the E Street, Suburb F Property for sale, and the proceeds of sale be applied:
i)First, to pay all costs, commissions and expenses of the sale; and
ii)Second, the balance be transferred to the trust account of the solicitors for the Wife.
b)The Wife be at liberty to appoint at her sole discretion a real estate agent to undertake the sale of the E Street, Suburb F Property.
c)In the event the Husband refused or neglected to comply with any provision of the orders:
i)A Registrar of the Court be appointed to execute all deeds and documents in the name of the party in default and do all things and acts necessary to give validity and operation to the orders;
ii)The Husband be ordered to pay all reasonable costs incurred by the other party for the purpose of enforcing the orders and providing damages; and
iii)An affidavit setting out the Husband’s failure to comply with the orders shall be sufficient evidence of his neglect and default.
d)Sub-paragraphs (i) to (ii) to be binding on the trustee of the Super Fund G (Superannuation Fund):
i)Pursuant to s.90MT(1)(a) of the Act, whenever a splittable payment becomes payable in respect of the Husband’s interest in the Superannuation Fund, the Wife shall be entitled to be paid an amount calculated in accordance with Pt.6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount of $95,500 of the Husband’s interest, provided that such base amount shall not exceed the value of the interest determined under s.90MT(2) of the Act, and there be corresponding reduction in entitlement of the Husband to whom the splittable payment would have been made but for these orders.
ii)The above order have effect from seven business days after the service of a sealed copy of the orders made by the Court on the Trustee of the Superannuation Fund.
iii)The Trustee of the Superannuation Fund 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 the orders.
e)The Wife otherwise retain for her sole and exclusive use, all other items of property and including chattels in action and financial resources in her name, possession and/or control, including her: savings; Motor Vehicle 3; and superannuation entitlements.
f)The Husband otherwise retain for his sole and exclusive use, all other items of property and including chattels in action and financial resources in his name, possession and/or control, including his: savings; Motor Vehicle 1; and Motor Vehicle 2.
g)Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:
i)Each party shall be solely entitled to the exclusion of the other, to all property in the possession of such party as at this date. The furniture, personal possession and like chattels in the real property are considered to be in the possession of the Wife;
ii)Each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other;
iii)All insurance policies to become the sole property of the policy owner named therein;
iv)Each party shall be solely liable for and indemnify the other against any liability, their name or encumbering any item of property to which that party is entitled pursuant to these orders; and
v)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
On 5 October 2018, the Wife also filed an affidavit in support of the Amended Initiating Application (Wife’s 5 October 2018 Affidavit). On 11 October 2018, the Wife filed an Outline of Case Document. On 12 October 2018, the Wife filed a Response to an Application in a Case (Response to Interveners’ Application in a Case) and a further affidavit (Wife’s 12 October 2018 Affidavit).
The proceeding then returned before the Court on 19 October 2018 when it was listed for final hearing. The Wife and the Interveners were represented by Counsel and the Husband was self-represented. The following Orders were made (19 October 2018 Orders):
a)The Interveners were granted leave to intervene in the proceeding.
b)The Intervener was appointed litigation guardian for Mr D Bambury.
c)The proceeding was relisted for final hearing on 26 February 2020, with an estimated hearing time of 2 days (Final Hearing).
d)The parties attend a Conciliation Conference with a Registrar of the Court on 15 January 2019.
e)Directions for the filing of material and payment of fees for the Conciliation Conference were made.
f)The 28 May 2018 Orders were varied to list the E Street, Suburb F Property for auction and to give the Wife the sole conduct of the sale.
g)The parties withdraw, at their own expense, any caveats lodged against the E Street, Suburb F Property and not lodge or cause to be lodged any further caveats against the E Street, Suburb F Property.
h)The parties make disclosure pursuant to the Federal Circuit Court Rules 2001 (Cth) (Rules) and in particular:
i)All tax returns since the financial year ending June 2009.
ii)All bank accounts through which any share trading was undertaken by any of the parties since 30 June 2009 or into which or out of which funds were transferred in connection with share trading.
i)Each party make application for their entire Centrelink files dating back to 30 June 2009.
On 19 November 2018, the Interveners filed a Statement of Claim (Statement of Claim). On 19 December 2018, the Wife filed a Defence to the Statement of Claim (Defence).
On 15 January 2019, a Conciliation Conference was conducted before a Registrar of this Court. The proceeding did not settle and the Registrar reported in the Conciliation Conference Report[13]:
Applicant maintains that Respondents’ discovery has been wholly inadequate. Fix reserve Applicant’s costs thrown away in the sum of $1,200 for determination by the trial judge
[13] See also Wife’s Affidavit, filed 3.2.20, at [16].
On 3 February 2020, the Wife filed an affidavit (Wife’s Trial Affidavit) and an Amended Financial Statement (Wife’s Amended Financial Statement).
On 18 February 2020, the Intervener filed an affidavit in response to the Wife’s Trial Affidavit (Intervener’s February 2020 Affidavit), and a Case Outline Document (Interveners’ Case Outline).
On 21 February 2020, the Wife filed a Further Amended Initiating Application (Further Amended Initiating Application) and an Outline of Case Document (Wife’s Outline of Case). The Further Amended Initiating Application sought the same orders as the Amended Initiating Application, as set out in paragraph 25, save that in lieu of sub-paragraphs 25(a) to (c) the Wife sought orders that:
a)The proceeds of sale of the E Street, Suburb F Property held in the Wife’s solicitors trust account be released to the Wife.
b)The Husband pay to the Wife the sum of $1,650, being the 21 August 2018 Costs Order, within 24 hours.
c)The Husband pay the Wife’s costs of and incidental to the Amended Initiating Application.
The proceeding next came before the Court at the Final Hearing on 26 February 2020. The Wife and the Interveners were represented by Counsel and the Husband was self-represented. The proceeding was heard on 26 and 27 February 2020. On the morning of 28 February 2020, the Husband attended Court with what Counsel for the Wife described as a “duffel bag”[14] from which the Husband produced a large quantity of documents. As a consequence of the Husband’s production of these documents, the proceeding was adjourned until 2 March 2020 to enable Counsel for the Wife and Counsel for the Interveners to review these documents. The proceeding then continued to be heard on 2 and 3 March 2020.
[14] Transcript P142:L5.
The Proposal of the Wife at Trial
The Orders sought by the Wife at trial are in the Further Amended Initiating Application and are referred to in paragraphs 25(d) to (g) and 32. The Wife’s Outline of Case also sought an order that the Husband pay, within 24 hours, the sum of $1,200 being the costs of the Wife thrown away at the Conciliation Conference on 15 January 2019.
Documents Relied on by the Wife
The Wife relied on the following documents[15]:
a)Further Amended Initiating Application.
b)Wife’s Amended Financial Statement.
c)Wife’s Trial Affidavit.
d)Wife’s Outline of Case.
e)Response to Interveners’ Application in a Case.
f)Wife’s 12 October 2018 Affidavit.
g)Defence.
[15] Transcript P5:L3-P6:L20; Outline of Case, at [4].
The Proposal of the Husband at Trial
The only documents filed by the Husband were:[16]
a)Response.
b)Husband’s Financial Statement.
c)Husband’s August 2018 Affidavit.
[16] Transcript P9:L11-19.
The final orders sought in the Response, apart from the repayment of the claimed loan to the Interveners, have been superseded by the sale of the E Street, Suburb F Property in June 2019 and the payment of the proceeds of the sale into the Wife’s solicitors’ trust account. The Husband has not subsequently filed an amended response. In final submissions the Husband was asked by the Court what final orders he sought. In response the Husband advised:
a)He had paid the 21 August 2018 Costs Order during the Final Hearing. This was confirmed by Counsel for the Wife[17]. Therefore the final order sought by the Wife in the Further Amended Initiating Application (referred to in paragraph 32(b)), that the Husband pay the 21 August 2018 Costs Order is no longer relevant.
b)He agreed with the submissions made and the orders sought by Counsel for the Interveners in relation to the monies claimed to be owed to the Interveners[18].
[17] Transcript P332:L24-39.
[18] Transcript P335:L41-47.
The Husband did not otherwise identify to the Court the property orders that he sought as final orders in the proceeding between the Husband and the Wife.
The Proposal of the Interveners at Trial
The orders sought by the Interveners are outlined in the Interveners’ Case Outline, as follows:
a)A declaration that the Husband and Wife are jointly and severely liable to the Interveners in each of the following amounts (Judgment Debt):
i)The sum of $147,000.00; and
ii)The further sum of $29,700.00.
b)A declaration that at all material times the E Street, Suburb F Property was impressed or subject to a trust or equitable charge in favour of the Interveners by way of a security for the repayment of the Judgment Debt.
c)That the Husband and Wife pay to the Interveners pre-judgment interest in the sum of $5,945.39 (Pre-Judgment Interest).
d)In discharge of the obligations of the Husband and Wife under sub-paragraphs (a) to (c), the Solicitors for the Wife forthwith disburse to the Interveners (via their Solicitors) amounts equal to:
i)The Judgment Debt; and
ii)The Pre-Judgment Interest;
from the net sale proceeds of the E Street, Suburb F Property which the Wife’s Solicitors presently hold on trust.
e)The balance of the net sale proceeds of the E Street, Suburb F Property be disbursed as between the Husband and the Wife as may be determined by the Court.
f)That the Interveners be at liberty to make a costs application within 30 days from the date of Judgment being delivered.
g)The dispersal of the balance of the net sale proceeds from the sale of the E Street, Suburb F Property as between the Husband and Wife be deferred:
i)Until the expiration of 30 days from the date of Judgment in the event that the Interveners elect not to make a costs application; and
ii)Otherwise until such time as the Interveners’ costs application is determined.
Documents Relied on by the Interveners
The Interveners relied on the following documents[19]:
a)Interveners’ Application in a Case.
b)Intervener’s September 2018 Affidavit.
c)Statement of Claim.
d)Defence.
e)Intervener’s February 2020 Affidavit.
f)Interveners’ Case Outline.
[19] Transcript P9:L28-P10:L44.
Evidence
The standard of proof in a civil matter is the balance of probabilities: s.140 Evidence Act 1995 (Cth).
Section 140 of the Evidence Act1995 (Cth) provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
In Bell & Nahos[20] Strickland J addressed the obligations of a trial judge as follows:
[…] it is not necessary in reaching a decision for a trial judge to refer to every piece of evidence or argument that is presented during a trial. That principle is well established in a number of authorities; I will mention two:
a) In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
[…] A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
[20] [2016] FamCAFC 244.
b)In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 – 386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
[…]
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard […] Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear […]
I can see no error here in her Honour’s failure to refer to all of the evidence of the mother in relation to this issue. Her Honour plainly considered the evidence that she needed to in order to the reach her decision[21].
[21] Ibid., at [28]-[29].
The Wife, the Husband and the Intervener each gave limited evidence and were cross-examined. The Court therefore had the benefit of observing each of these parties in the witness box for a period of time and observing their demeanour in the Courtroom throughout the proceeding.
The Wife’s Evidence
The Wife clearly found giving evidence a very stressful situation and felt under a great deal of pressure. English is a second language to the Wife. It was evident that the Wife had the ability to engage in conversational English, but that she struggled with more formal English in Court documents and when giving evidence and under cross-examination. The Wife’s stress was increased by the Husband regularly attempting to interrupt her evidence or cross-examination to try to correct her evidence. The Wife gave her evidence in a measured and considered manner to the best of her abilities. The Wife directly answered questions put to her, including those which may have been adverse to her case. The Wife impressed me as a witness.
The Husband’s Evidence
The Husband was self-represented during this proceeding. As noted above, at the commencement of the hearing when the Wife was giving evidence and being cross-examined, the Husband attempted to persistently interrupt the proceeding to tell the Wife and the Court what he perceived to be the real situation. The Court was able to encourage the Husband to ultimately desist from this behaviour without requiring the Husband’s removal from the Courtroom.
The Husband was cross-examined at some length and in some considerable detail. He swore, abused and threated Counsel and instructing solicitors, abused the Court, expressed various conspiracy and anti-establishment views and exhibited signs of possible mental illness. He was a most unimpressive witness.
In many areas, the Court has found the Husband to have been substantially untruthful. In other respects, the Court has accepted the Husband’s evidence. The Court refers to its reasons in this Judgment as follows.
The Intervener’s Evidence
It was evident that the relationship between the Intervener and the Husband was strained. The Intervener was accompanied to Court each day by her daughter and they both sat apart from the Husband in the Courtroom, often glaring at him. During the Intervener’s cross‑examination, she became extremely emotional and commenced to abuse the Wife and the Court was required to intervene[22].
[22] Transcript P288:L44-P289:L15.
The Court has accepted the Interveners evidence in relation to some matters, but has found the Intervener not to have been truthful in relation to other matters. Those matters are:
a)The Intervener’s employment history whilst the Wife was living with the Interveners.
b)The financial contributions the Husband and the Wife made to the household of the Interveners whilst they were living with them and, in particular, after the Wife started working in 2013.
Relevant Legislation
The Husband and the Wife were unable to resolve the property proceedings and I am required to determine both applications for property adjustment pursuant to s.79 of the Act.
Section 79 of the Act regulates the alteration of property interests of parties to a marriage. Section 79(1)(a) of the Act provides that the Court may make such orders as it considers appropriate to alter the interests of the parties in the property.
Section 79(2) of the Act provides as follows:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Section 79(4) of the Act sets out the matters which the Court must take into account when considering what order (if any) should be made.
Section 79(4) provides:
In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent, and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Prior to the decision of the High Court in Stanford v Stanford[23] (Stanford) the preferred approach to the determination of property matters pursuant to s.79 of the Act was set out by the Full Court in the matter of In the Marriage of Hickey[24].
[23] (2012) 247 CLR 108.
[24] [2003] FamCA 395..
This approach involved four interrelated steps as follows:
a)First, the Court should make findings as to the identity and value of the property pool.
b)Second, the Court should determine the contributions of the parties pursuant to ss.79(4)(a), (b) and (c), being both the direct and indirect contributions, including financial and non-financial contributions and then determine the contribution based entitlements of each of the parties, as a percentage of the value of the property of the parties.
c)Third, the Court should identify and assess the relevant matters in ss.79(4)(d), (e), (f) and (g), including the matters referred to in s.75(2) to the extent that they are relevant and determine whether any further adjustment should be made to the contribution based entitlements of the parties.
d)Fourth, the Court should consider the effect of the findings and determination and decide what order is just and equitable in all the circumstances of the case.
In Stanford, the High Court said that before making any orders for the adjustment of parties’ property interests, the Court must first determine whether it is just and equitable to make any property orders, or to alter the parties’ interests in property. The High Court stated:
First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property […] The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order[25].
[25] (2012) 247 CLR 108, at [37].
The High Court further stated:
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)[26].
[26] Ibid., at [42].
Therefore, in most proceedings for the alteration of matrimonial property interests, the decision as to whether or not it is just and equitable for the Court to make property orders is resolved by the breakdown of the marital relationship and the mutual applications of the parties to the Court for orders altering their respective property interests.
Is it Just and Equitable to Alter the Parties’ Property Interests?
In this matter the parties have separated and both parties have made an application to the Court seeking orders altering their respective property interests.
The parties are no longer living in a marital relationship and consequently there will not “thereafter be the common use of property by the husband and the wife”[27]. I am therefore satisfied that it is just and equitable to alter the parties’ property interests.
[27] Ibid., at [42].
Having been satisfied that it is just and equitable to make an order altering the property interests of the parties, the approach and considerations I must make are as follows:
a)Attribute value to the assets comprising the property pool.
b)Identify and give weight to the various contributions of each of the parties as set out in s.79(4) (a) – (c) and make an assessment as to the entitlements of the parties based on their respective contribution.
c)Identify the relevant considerations as set out in s.79(4)(d)-(g), including the matters set out in s.75(2) so far as they are relevant, and then decide whether any further adjustment is appropriate.
d)Consider whether the proposed orders are just and equitable.
Assets and Liabilities of the Parties
The Husband and the Wife were unable to provide an agreed asset and liability statement. The Wife relied upon the following table of the property and superannuation of the parties in the Wife’s Outline of Case (Wife’s Balance Sheet)[28].
[28] Wife’s Outline of Case, p.8.
| ASSET | OWNERSHIP | ESTIMATED VALUE |
| E Street, Suburb F Property | Joint | $240,868.13 |
| Motor Vehicle 1 | Husband | $6,000 |
| Motor Vehicle 2 | Husband | $2,000 |
| Savings | Husband | E$7,000 |
| Savings | Wife | Nominal |
| Sub Total | Joint | $255,868.13 |
| LIABILITIES | OWNERSHIP | ESTIMATED VALUE |
| Rental arrears | Wife | $4,625 |
| Sub Total | Joint | $4,625 |
| SUPERANNUATION | OWNERSHIP | OWNERSHIP |
| Super Fund M | Wife | E$10,000 |
| Super Fund N | Husband | E$90,000 |
| Super Fund G | Husband | E$125,000 |
| Sub Total | Joint | $225,000 |
| NET TOTAL EXCLUDING SUPERANNUATION | JOINT | $251,243.13 |
| NET TOTAL INCLUDING SUPERANNUATION | JOINT | $476,243.13 |
The following is to be noted in relation to the Wife’s Balance Sheet.
Counsel for the Wife submitted that the sale of the E Street, Suburb F Property pursuant to the 19 October 2018 Orders was completed in June 2019 and the proceeds of sale, in the sum of $240,868.13 were paid into a non-interest bearing trust account held by the Wife’s solicitors. Accordingly no orders are necessary for any interest accrued on the proceeds of sale of the E Street, Suburb F Property since June 2019[29].
[29] Transcript P318: L26-46.
The Wife’s Outline of Case valued the Husband’s Motor Vehicle 1 at $10,000. The Husband’s Financial Statement valued the Motor Vehicle 1 at $6,000, whereas the Motor Vehicle 1 was valued at $7,500 in the Husband’s August 2018 Affidavit[30]. During final submissions Counsel for the Wife advised the Court that he was instructed to accept the Husband’s valuation of the Motor Vehicle 1 at $6,000[31].
[30] Husband’s August 2018 Affidavit, at [18].
[31] Transcript P319: L47- P320:L5.
During the Husband’s final submissions the Husband asserted that the Motor Vehicle 1 was only worth $4,500[32]. During the proceedings the Husband did not file an amended financial statement amending the value of the Motor Vehicle 1. Nor did the Husband present any evidence during the Final Hearing to support his assertion that the Motor Vehicle 1 was worth $4,500.
[32] Transcript P334: L3-4.
The Wife’s Outline of Case valued the Husband’s Motor Vehicle 2 at $5,000. The Husband’s Financial Statement valued the Motor Vehicle 2 at $2,000, as did the Husband’s August 2018 Affidavit[33]. During final submissions Counsel for the Wife advised the Court that he was instructed to accept the Husband’s valuation of the Motor Vehicle 2 at $2,000[34].
[33] Husband’s August 2018 Affidavit, at [18].
[34] Transcript P319: L47- P320:L5.
During the Husband’s final submissions, the Husband asserted that the Motor Vehicle 2 was “basically worthless unless I fix the problems associated with the car”[35]. During the proceedings the Husband did not file an amended financial statement amending the value of the Motor Vehicle 2. Nor did the Husband present any evidence during the Final Hearing to support his assertion that the Motor Vehicle 2 was of no value.
[35] Transcript P334:L1-3.
The Husband’s August 2018 Affidavit claimed that the assets and liabilities of the parties were as follows (Husband’s Balance Sheet)[36].
[36] Husband’s August 2018 Affidavit, at [18].
| ASSET | OWNERSHIP | ESTIMATED VALUE |
| E Street, Suburb F Property | Joint | $300,000 |
| Motor Vehicle 3 | Wife | $12,000 |
| Motor Vehicle 1 | Husband | $7,500 |
| Motor Vehicle 2 | Husband | $2,000 |
| Shares | Husband | $0 |
| Sub Total | Joint | $321,500 |
| LIABILITIES | OWNERSHIP | ESTIMATED VALUE |
| Finance on Motor Vehicle 3 | Wife | $12,000 |
| ANZ Credit Card | Wife | $1,000 |
| Legal fees concerning Childrens’ Matters | Wife | $1,500 |
| Monies owed to Interveners for purchase of the E Street, Suburb F Property | Joint | $177,400 |
| Sub Total | Joint | $191,900 |
| SUPERANNUATION | OWNERSHIP | ESTIMATED VALUE |
| Wife’s Superannuation | Wife | $30,000 |
| Husband’s Superannuation | Husband | $195,956 |
| Sub Total | Joint | $225,956 |
| TOTAL EXCLUDING SUPERANNUATION | JOINT | $129,600 |
| TOTAL INCLUDING SUPERANNUATION | JOINT | $355,556 |
In relation to the Husband’s Balance Sheet, it is noted that the Wife has sold the Motor Vehicle 3 for $6,000[37] and discharged the finance liability relating to this vehicle[38]. The Wife’s Amended Financial Statement indicates that the Wife does not own a motor vehicle.
[37] Wife’s Amended Financial Statement, at [59].
[38] Wife’s Amended Financial Statement, at [29].
A Loan to the Husband and Wife?
In paragraphs 10 to 17 and 18 to 22 of the Statement of Claim, the Interveners plead that the sum of $147,000 was advanced by the Interveners to the Husband and Wife as monies lent pursuant to a loan agreement. It is accepted that in January 2011 the Interveners advanced to the Husband and Wife, the sum of $147,000 (Funds) from ANZ Access Advantage Cheque Account No. #... held in the names of the Interveners (Cheque Account). It is also accepted that the Funds were used to complete the purchase of the E Street, Suburb F Property on or about January 2011.
The following issues arise in relation to the Funds:
a)Whether the Funds originated from the savings of the Husband and the Wife, by way of monies from the Husband’s share trading or whether the Funds originated from the Interveners’ own savings, from trading of shares that the Interveners’ owned.
b)Whether the Funds were advanced by the Interveners to the Husband and the Wife by way of a legally enforceable loan.
The Interveners and the Husband assert that the advance of the Funds was a loan to the Husband and the Wife. The Wife asserts that the Funds were monies sourced from the Husband and Wife’s own savings derived from the Husband’s share trading and that she was not a party to any loan agreement with the Interveners and the Husband.
Origin of the Funds
It is necessary to first consider the origin of the Funds.
In paragraph 27(a) of the Statement of Claim it is pleaded:
Further and in the alternative to the foregoing, the [Interveners] did provide to the [Husband and the Wife]:
a)[the Funds] to be applied towards the purchase of the E Street, Suburb F Property
In paragraph 27 of the Defence it is pleaded:
In relation to the allegations contained in paragraph 27, she admits that the sum of $147,000 was provided by the Plaintiffs but otherwise does not admit the allegations contained in paragraph 27.
The Wife’s affidavit material differs from matters pleaded in paragraph 27 of the Defence by way of admission and non-admission. The Wife deposed that:
a)The money for the Funds belonged to the Husband as he used the Interveners’ share trading account to avoid capital gains tax liabilities and to ensure that his Centrelink entitlements were not jeopardised[39].
b)At the time of the purchase of the E Street, Suburb F Property the Interveners were employed and therefore did not need to disclose their income to Centrelink[40].
c)Prior to the purchase of the E Street, Suburb F Property the Husband told the Wife that he would be selling his shares to fund the purchase of the E Street, Suburb F Property[41].
[39] Wife’s 12 October 2018 Affidavit, at [15].
[40] Wife’s 5 October 2018 Affidavit, at [28].
[41] Wife’s 12 October 2018 Affidavit, at [20].
When cross-examined the Wife reiterated that prior to the purchase of the E Street, Suburb F Property, the Husband told her that he had sufficient funds to purchase the E Street, Suburb F Property from trading his own shares[42].
[42] Transcript P46:L31-32 and P59:L11-13.
The Husband did not file a defence to the Statement of Claim. In the Husband’s August 2018 Affidavit, the Husband deposed that the money to purchase the E Street, Suburb F Property came from approximately $40,000 of the savings of the Husband and the Wife and the balance of $170,000 from the Interveners[43]. The Husband’s Financial Statement discloses a mortgage liability in the sum of $175,000 to the Interveners[44]. The Husband said in an email to the Wife’s solicitors on 12 September 2018:
As it is I already owe both my parents a significant amount for the money they leant me back in January 2011 when the settlement occurred[45].
[43] Husband’s August 2018 Affidavit, at [16(b)].
[44] Husband’s Financial Statement, at [2], [47] and [55].
[45] Wife’s Trial Affidavit, at [19] and Annexure “C”.
Counsel for the Interveners submitted that in the circumstances judgment in default of filing a defence should be entered against the Husband. In final submissions the Husband agreed with Counsel for the Interveners submissions[46].
[46] Transcript P335:L41-47.
The Court notes however, that on about 9 February 2016 the Husband applied to Centrelink for the release of some of his superannuation benefits on the basis of severe hardship. The Husband completed a Fortnightly Income and Expenses Statement – Severe Financial Hardship (Severe Hardship Statement)[47]. When cross-examined, the Husband said that he received about $4,500 as a result of the application for early release of his superannuation benefits[48].
[47] Exhibit A3.
[48] Transcript P157:10-11.
In the Severe Hardship Statement, under the heading Nature of debt, arrears, repairs, expenses to be incurred and in the section Loan(s) from family or friends being recalled, under the sub-heading Due Date, the Husband inserted No Date and the sum of $2,200 under the sub-heading Amount. The Husband also said that the debt of $2,200 he had disclosed in the Severe Hardship Statement, was money that his brother Mr K had lent him[49]. The Husband was cross-examined as to why he did not include the loan from the Interveners in the sum of $179,000 in the Severe Hardship Statement. The Husband was unable to give any credible explanation for his failure to disclose the sum of $179,000 owing to the Interveners in the Severe Hardship Statement[50]. As Counsel for the Wife sought to tender the Severe Hardship Statement the Husband said:
How to bankrupt an Aussie male...this is a fucking joke. A criminal enterprise[51].
[49] Transcript P160:L25-P161:L7.
[50] Transcript P161:14-P162:18.
[51] Transcript P162:L20-29.
The Intervener deposed that the Interveners retired in 2001[52] and that they had been in receipt of means tested-pensions since 2001[53]. Centrelink and banking records demonstrate that the Intervener has been in receipt of a means-tested carers’ pension and/or an aged pension from Centrelink since 1 July 2001[54] and that Mr D Bambury has been in receipt of a means-tested pension from Centrelink since December 2008[55].
[52] Intervener’s September 2018 Affidavit, at [11].
[53] Intervener’s February 2020 Affidavit, at [7].
[54] Exhibit A5 and A7.
[55] Exhibit A5.
The Court accepts the Wife’s evidence that during the period when the Wife was living with the Interveners, from when the Wife arrived in Australia in 2007 until separation in December 2016, the Intervener was working and receiving cash payments. The Wife provided specific evidence in relation to where the Intervener was “working on the black money”[56] during this period. The Court was not persuaded by the Intervener’s evidence when she was cross-examined by Counsel for the Wife in relation to her work history during this period[57]. A review of the Cheque Account statements from 17 December 2008 to 29 December 2014[58] reveals numerous deposits for which the Intervener was unable to credibly account for under cross-examination. I do not accept that all these deposits were winnings from gambling on poker machines. It is evident that during some periods of these statements the Intervener regularly attending gaming venues and was on occasions spending a concerning amount of money[59]. The quantum of money that was being spent by the Intervener was indicative of the Intervener having a source of income other than the income tested pension.
[56] Transcript P38:9-15.
[57] Transcript P287:L38-P289:L7 and Exhibit A5.
[58] Exhibit A5.
[59] For example on 7 December 2009 the sum of $830 was withdrawn in five cashcard transactions at the P Hotel.
The Intervener further deposed that prior to the purchase of the E Street, Suburb F Property, the Interveners jointly held a share trading account, being O Account No. #... (O Account). As at 10 December 2010 the balance of the O Account was $14,130.08[60]. The Intervener deposed that from 17 December 2010 to 11 January 2011 the Husband arranged for the sale of shares held in the name of the Interveners totalling $131,453.12. The proceeds of sale of these shares were transferred into the O Account[61]. On 7 January 2011 the Husband transferred $69,000 from the O Account to the Cheque Account. On 11 January 2011 the Husband transferred a further $76,000 from the O Account to the Cheque Account, leaving a balance of $702.53 in the O Account. On 14 January 2011, the Husband transferred $145,000 from the Cheque Account to the O Account and then on 24 January 2011 $145,000 was transferred back to the Cheque Account, leaving a balance in the O Account of $892.19[62] On 27 January 2011, the Intervener withdrew $147,000 from the Cheque Account by way of a bank cheque as directed by the Husband and gave the bank cheque to the Husband, when the Intervener and the Husband together attended the Suburb L Branch of the ANZ Bank[63].
[60] Intervener’s September 2018 Affidavit, at [23] and Exhibit “B-3”.
[61] Intervener’s September 2018 Affidavit, at [22] and Exhibit “B-3”.
[62] Intervener’s September 2018 Affidavit, at [24] and Exhibit “B-3” and Exhibit “B-4”.
[63] Intervener’s September 2018 Affidavit, at [25] and Exhibit “B-5”.
The Husband also traded shares through his own accounts. During the period 8 October 2010 to 7 January 2011 the Husband sold shares totalling $72,097.48[64].
[64] Intervener’s February 2020 Affidavit, at [8].
The Court accepts that the weight of the evidence before it establishes to the relevant standard that the origin of the Funds was from the sale of the Interveners’ shares, which were sold from 17 December 2010 to 11 January 2011. The Court therefore finds that the origin of the Funds was from the Interveners’ savings and not from the savings of the Husband and the Wife.
The Court also finds that the Husband was untruthful when he completed the Severe Hardship Statement and the Husband deliberately failed to disclose the Funds owing to the Interveners.
Relevant Legal Principles – Loans
In order to determine whether the Funds were advanced by the Interveners to the Husband and the Wife by way of a legally enforceable loan, it is first necessary to consider the relevant legal principles pertaining to the enforceability of loans.
The Family Court recently considered the relevant legal principles as to when a loan is legally enforceable in Bagshaw & See [2019] FamCA 482 (Bagshaw), where McClelland DCJ said[65]:
The burden of proving that those monies were advanced as a loan falls to those asserting that it was a loan, being the husband, Mr B and Ms C: Heydon v The Perpetual Executors Trustees and Agency Co WA Limited (1930) 45 CLR 111 (Heydon) at 113.
[65] Bagshaw, at [252].
Therefore in the circumstances of this case, the burden of proving that the Funds were a loan to the Husband and the Wife, falls on the Interveners and the Husband.
In Bagshaw, McClelland DCJ also referred to the following authorities[66]:
[66] Bagshaw, at [253]-[255] and [257]-[260].
As determined by the Court of Appeal in Chaudhary v Chaudhary [2017] NSWCA 222 (Chaundry) at [100]:
The question of whether or not the advances … are to be properly characterised as loans or gifts … is not to be determined by reference to any uncommunicated subjective state of mind about which inferences may or may not be drawn. The characterisation of the advance must depend upon the objective evidence as to what was said by [the lender/s] to [the recipient/s] and what [the lender/s] did, including, for example by way of documentation. [Emphasis added].
In Grefeld & Grefeld and Anor [2010] FamCA 504 (Grefeld) at [95], Barry J described the usual characteristics of a loan as including:
·The real lender to know about the borrowing.
·Some definition of the period of the loan. Is it to be for five, ten or one hundred years, or when the borrower chooses to repay it?
·Some definition of the interest payable with evidence supporting such agreement by regular deposits to bank accounts.
·Some form of documentation to validate or authenticate a loan for such a significant sum of money.
However, the absence of one or more of those characteristics is not determinative of the issue.
[…]
Nevertheless, even in those circumstances, where there are commonly less formal arrangements between parents and their children or, in this case, between the interveners and their son and daughter in law, those seeking to assert that the monetary advance was a loan must adduce sufficient evidence to satisfy the Court of an intention to create a legally enforceable relationship. In that respect, in Strand & Strand (No. 2) [2018] FamCAFC 247 at [24], the Full Court said:
The characterisation of a particular advance of monies depends on whether the circumstances known to both parties to the transaction at the time demonstrate, objectively, that the payment was made by way of loan. If, for example, the money was paid upon the express condition that it should be repaid then, notwithstanding any absence of formal documentation, and regardless of the motivation for the payment, a contract of loan will exist: Berghan v Berghan [2017] QCA 236; (2017) 57 Fam LR 104 (Berghan). [Emphasis added].
In terms of the Full Court’s reference to the “circumstances” of the case, in South Australia v Commonwealth [1962] 108 CLR 130 at 157, Windeyer J said:
The circumstances may show that they did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts. The status of the parties, their relationship to one another, the topics with which the agreement deals, the extent to which it is expressed to be finally definitive of their concurrence, the way in which it came into existence, these, or any one or more of them taken in the circumstances, may put the matter outside the realm of contract law.
Applying that principle in the area of contract law, in Ermogenous v Greek Orthodox Community of SA Inc [2002] 209 CLR 95, the High Court stated at [24]:
It is of the essence of contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty. “To be a legally enforceable duty there must, of course, be identifiable parties to the arrangement, the terms of the arrangement must be certain, and, unless recorded as a deed, there must generally be real consideration for the agreement. Yet "[t]he circumstances may show that [the parties] did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts.
In the context of family relationships, in Ashton v Pratt (No 2) [2012]NSWSC 3 at [30], Brereton J said:
In the absence of express statement that their arrangements were or were not intended to be legally binding, intention to create legal relations is an inference of fact, determined objectively; accordingly, Ms Ashton’s subjective intentions in that respect are not relevant [Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95, 105-7, [24]-[28]; Darmanin v Cowan [2010] NSWSC 1118, [204]-[215]].
Family, social, and domestic arrangements do not normally give rise to binding contracts, because the parties lack the necessary intention [Teen Ranch Pty Ltd v Brown (1995) 87 IR 308, 310 (Handley JA, referring to Balfour v Balfour [1919] 2 KB 571)].
Was the Advance of the Funds a Legally Enforceable Loan?
For the reasons that are set out, having regard to the objective facts and conduct of the parties, the Court is not satisfied, on the balance of probabilities, that the Funds were advanced by the Interveners to the Husband and the Wife to assist them to purchase the E Street, Suburb F Property was by way of a legally enforceable loan. Specifically the Court is not satisfied that:
a)There was any agreement between all of the parties to the alleged loan agreement; and
b)There was any agreement as to when the Funds were to be repaid.
The Court first considers the evidence in relation to the formation of the alleged loan agreement. In paragraph 10 of the Statement of Claim, it is pleaded that in December 2010 the Interveners communicated to the Husband and Wife an offer of financial assistance to complete the Contract of Sale. Paragraph (ii) of the particulars to paragraph 10 pleads that the Interveners’ communicated their proposal of financial assistance to the Husband and the Wife in a series of discussions between “all the parties” in the Interveners’ home during December 2010 and that these discussions took place in “circumstances where the parties were living together as a cohesive and harmonious (extended) family unit”.
Paragraph 11 of the Statement of Claim pleads that the Husband accepted, for himself and on behalf of the Wife, the Interveners’ offer of financial assistance. Paragraph (i) of the particulars to paragraph 11 pleads that the Husband and Wife’s acceptance of the Interveners’ proposal of financial assistance was constituted by a number of discussions between “all the parties” in the Interveners’ home during the first half of December 2010 and in “circumstances where the parties were living together as a cohesive and harmonious (extended) family unit”.
Paragraph 12 of the Statement of Claim pleads a loan agreement between the Interveners and the Husband and the Wife, which is pleaded to have come into existence in about mid-December 2010. The agreement is pleaded as being both oral and implied. Insofar as the agreement was oral, paragraph (i) of the particulars to paragraph 12 pleads the agreement arose as a result of a number of discussions between the parties in the Interveners’ home in early to mid-December 2010 and in “circumstances where the parties were living together as a cohesive and harmonious (extended) family unit”. Insofar as the agreement was to be implied, it was to be implied from the Interveners providing the Funds to the Husband and the Wife and from Husband and Wife’s alleged “difficult” financial circumstances.
The advance of the Funds pleaded in paragraphs 18 to 22 of the Statement of Claim relies upon the same particulars of the discussions referred to in paragraphs 11 and 12 of the Statement of Claim.
The Statement of Claim otherwise does not provide any further particulars of the discussions during which is alleged that the oral loan agreement was entered into between the Interveners and the Husband and the Wife.
The Intervener deposed in paragraph 21 of the Intervener’s September 2018 Affidavit:
In the circumstances as explained to me by [the Husband], I responded by offering to lend [the Husband and the Wife] funds so that they could complete the purchase of the [E Street, Suburb F Property] on the basis that the funds lent would be repaid to the [Interveners] upon the sale of the [E Street, Suburb F Property]. The [Husband and the Wife] agreed to accept the loan on the terms proposed.
The Husband deposed in paragraph 16(c) of the Husband’s August 2018 Affidavit:
On or about late 2016, prior to settlement of the property in January 2011, [the Wife] and I discussed the house and she agreed that my parents would have to be paid back either when the house sold, or when we were able to finance it with a mortgage.
(Without alteration)
This paragraph clearly does not make any sense as settlement of the E Street, Suburb F Property took place on or about January 2011. When the Husband was cross-examined by Counsel for the Interveners, the Husband was given an opportunity to clarify paragraph 16(c) of the Husband’s August 2018 Affidavit. The Husband said in substance that:[67]
[…] we were discussing, you know, over the years since 2011 that the money would have to come back to her.
[67] Transcript P213:L32-34.
The Intervener and the Husband at no point in any of their affidavits set out a conversation that they had with the Wife prior to the advance of the Funds, in which she agreed to the loan of the Funds from the Interveners.
The Intervener and the Husband did not give any direct evidence of a conversation that either of them, either together or separately, had with the Wife prior to settlement of the E Street, Suburb F Property on or about January 2011, in relation to any matter concerning the proposed loan of the Funds.
Insofar as it was pleaded that any such conversations took place between the Interveners and the Husband and the Wife, in the Interveners’ home in “circumstances where the parties were living together as a cohesive and harmonious (extended) family unit”[68], the Intervener’s evidence cast reasonable doubt upon the likelihood of such conversations taking place. In an emotional outburst whilst under cross-examination, the Intervener described the Wife as being “spiteful” because:[69]
[…] I kick her out, because she smash my house, not one time, but three times. All the mirrors in the house […] I say, “I can’t any more”. I can’t because my husband is sick and you have to get out from here, because for 10 years, I live like I have walking on eggshells because she was so much troublemaker […].
[68] Statement of Claim, at [10(ii)], [11(i)], and [12(ii)].
[69] Transcript P288:L46-P289:L7.
Therefore, the Court does not accept the allegation that the “parties were living together as a cohesive and harmonious (extended) family unit”. The Interveners did not adduce any other direct evidence to support this allegation.
Prior to the Interveners being given leave to intervene in this proceeding, the Intervener signed the following statement which was then annexed to the Husband’s August 2018 Affidavit (Loan Statement)[70]:
[70] Husband’s August 2018 Affidavit, at [16(b)] and Annexure “B-1”.
I am writing to declare that back in January 2011 my husband and I leant my son 170,000 dollars so that he could meet the settlement for his property at E Street, Suburb F. It was given to him on the condition that he fixes the house to either move into or rent out. It was agreed that once the house was fit for purpose he sources a loan from the Bank and return the money. After recognising the issue’s related to the home. Later I had provided an additional $7400.00 so the house could be re-stumped as he had no money at the time. This was not a gift.
I declare that the statement above is true.
(Without alteration)
When the Intervener was cross-examined by Counsel for the Wife it became evident that the Intervener’s discussions in relation to advancing the Funds for completion of the Contract of Sale were conducted only with the Husband. The Intervener said[71]:
I never used to mix between husband and wife. They live in my roof. But I never used to mix with them.
[71] Transcript P237:L26-27.
The Intervener told the Court that she told the Wife about the amount that the Interveners had advanced “After we bought the house”[72].
[72] Transcript P237:36.
When the Husband was cross-examined by Counsel for the Wife, the Husband gave evidence that the Funds were advanced to himself only[73]. The Husband said:
It was owed by me, because it was – she had nothing to do with the house, so this was a loan that I took[74].
[…]
She didn’t even want to be on the title. And – and when – when I signed the – when – when I first bought the house, she said she didn’t want to be on the title. I said, “No. I’m an honourable father, you have to be – we’re a married couple” and I put her on the title[75].
[73] Transcript P215:L6.
[74] Transcript P215:L3-5.
[75] Transcript P113:L1-4.
The Wife denies the discussion deposed to by the Intervener in paragraph 21 of the Intervener’s September 2018 Affidavit. The Wife says that she did not agree to such a proposal and was not made privy to any of the alleged discussions[76]. The Wife also deposed that at the time of the purchase of the E Street, Suburb F Property she was not aware of the Husband and Wife’s financial circumstances, as the Husband was in control of their finances[77].
[76] Wife’s 12 October 2018 Affidavit, at [17].
[77] Wife’s 12 October 2018 Affidavit, at [19].
The Court accepts the Wife’s evidence and concludes that the Wife was not party to any agreement with the Interveners to borrow the Funds from them. The characterisation of the advance of monies must depend upon the objective evidence as to what was said by the lender/s to the recipient/s and what the lender/s did: Chaudhary at [100]. The objective evidence in this case demonstrates that the Intervener discussed the proposed advance of the Funds only with the Husband and not the Wife prior to the advance of the Funds on 27 January 2011.
The Court therefore concludes that there was no agreement between the Interveners and the Husband and the Wife for the advance of the Funds.
The Court now turns to consider the evidence in relation to when the Funds were to be repaid.
Paragraph 8 of the Statement of Claim pleads:
It was the intention of the [Husband and Wife], when purchasing the E Street, Suburb F Property:
a)not to occupy or reside therein;
b)to renovate the E Street, Suburb F Property for the purpose of deriving a profit upon its resale (after the payment to the [Interveners] of all borrowings and after selling expenses).
and the Defendants did, at all material times subsequent to the completion of its purchase so deal with the aforesaid property in accordance with their intention.
Paragraph 12 of the Statement of Claim pleads:
In or about mid December 2010 the [Interveners] agreed to lend to the [Husband and Wife] the sum of $147,000 and which sum the [Husband and Wife] agreed to repay the [Interveners] from the proceeds to be derived from the (eventual) re-sale of the E Street, Suburb F Property.
The Intervener said that the Husband had prepared the Loan Statement and asked her to sign it because he had to go to Court[78].
[78] Transcript P229:L6-14.
In the Intervener’s September 2018 Affidavit the Intervener deposed[79]:
The [Husband and the Wife] never intended to reside in the [E Street, Suburb F Property], but rather renovate and resell [the E Street, Suburb F Property].
The Intervener then deposed to the matters in paragraph 21 of the Intervener’s September 2018 Affidavit.
[79] Intervener’s September 2018 Affidavit, at [20].
Counsel for the Wife cross-examined the Intervener in relation to the inconsistency between the Intervener’s evidence in the Loan Statement and in paragraph 21 of the Intervener’s September 2018 Affidavit. Counsel asked the Intervener which proposition was true and the Intervener’s response was:
Well, either – either, because I didn’t care what they do, either stay in or sell the house or rent the house[80].
[80] Transcript P236:L29-30.
The Husband exhibited the Loan Statement to the Husband’s August 2018 Affidavit as evidence that the sum of $170,000 for the purchase of the E Street, Suburb F Property had originated from the Interveners[81]. When the Husband was cross-examined by Counsel for the Interveners, it was put to him that the agreement at the time the Funds were made available to him was that he was not going to live at the E Street, Suburb F Property, and that the property was going to be renovated and then resold. The Husband responded[82]:
I mean, originally, that was the intention was to find some work for myself and renovate the house and then either rent it or sell it or whatever. There was nothing firm […]
[81] Husband’s August 2018 Affidavit, at [16(b)].
[82] Transcript P220:L42-44.
Upon further questioning under cross-examination the Husband said that obtaining a loan from the bank would also have triggered the requirement to repay the Interveners. After commencing the renovation works the Husband then considered living at the E Street, Suburb F Property[83].
[83] Transcript P221:L1-18.
When the Wife was cross-examined by Counsel for the Interveners, she said that the Husband had planned to renovate the E Street, Suburb F Property and that she agreed to the renovation. The Wife also said that the Husband and Wife had always planned to live at the E Street, Suburb F Property[84].
[84] Transcript P54:L12-44.
There is inconsistent evidence between the Intervener and the Husband concerning any agreement about when the Funds were to be repaid. The allegations in paragraphs 8 and 12 of the Statement of Claim have not been made out. The Court determines that there was no agreement as to the period of the loan of the Funds or the circumstances in which the Funds were to be repaid (Grefeld at [95]).
Finding in Respect to Advance of the Funds to the Husband and Wife
The burden of proving that the Funds were a loan to the Husband and the Wife falls on the Interveners and the Husband: Heydon at [113]. For the reasons that are set out above, having regard to the objective facts and the conduct of the parties, the Court is not satisfied, on the balance of probabilities that the Funds advanced by the Interveners to facilitate the purchase of the E Street, Suburb F Property by the Husband and the Wife were by way of a legally enforceable loan.
Further Finding in Respect to the Advance of the Funds
The Court refers to the matters pleaded in paragraphs 18 to 22 of the Statement of Claim. In light of the findings in the previous paragraph, the claim in paragraphs 18 to 22 of the Statement of Claim also fails against the Wife. The Court now considers whether the claim pleaded in paragraphs 18 to 22 should succeed separately against the Husband.
The Husband has made admissions that he received the Funds from the Interveners on condition that he repaid the Interveners. The Court relies on:
a)The Husband’s August 2018 Affidavit, at paragraph 16(b) and the Husband’s Balance Sheet.
b)The Husband’s Financial Statement[85].
c)Husband’s evidence referred to in paragraph 102[86].
d)The Husband has not filed a defence to the Statement of Claim.
[85] Husband’s Financial Statement, at [2], [46] and [55].
[86] Transcript P237:L3-6.
Where monies are paid upon the express condition that they should be repaid then, notwithstanding any absence of formal documentation they should be repaid: Berghan. In the circumstances of this case, taking into account the admissions made by the Husband and the Husband’s failure to file a defence to the Statement of Claim, the Court determines that the Interveners are entitled to judgment against the Husband, pursuant to paragraphs 18 to 22 of the Statement of Claim, in accordance with r.13.03B(2)(c) of the Rules in the sum of $147,000.
Additional Funds
In paragraphs 23 to 26 of the Statement of Claim the Interveners claim additional monies totalling $29,700 from the Husband and the Wife (Additional Funds).
In paragraphs 23 of the Statement of Claim it is alleged that on six occasions between 10 August 2011 and 5 July 2013 the Interveners agreed to lend to the Husband and the Wife the Additional Funds, which the Husband and the Wife agreed to repay from the proceeds of the eventual sale of the E Street, Suburb F Property. The particulars to paragraph 23 relevantly plead:
a)In paragraph (i), the date and the amount of each payment.
b)In paragraph (ii), that the Husband made each of the requests for the advances “for and on behalf of himself and [the Wife]” for the purpose of “enabling maintenance works to be performed on the E Street, Suburb F Property”.
c)In paragraph (iii), that each of the agreements were made by the Intervener, on behalf of the Interveners, and the Husband, on behalf of the Husband and the Wife, on or around each of the dates particularised in paragraph (i).
d)That the “circumstances in which the said agreement was made included” that all the parties were living in the Interveners’ home “as a cohesive and harmonious (extended) family unit” and where the Husband and Wife “did not have sufficient of their own funds to pay for various maintenance works on the E Street, Suburb F Property”.
The material allegations in paragraph 23 allege a series of six agreements. The particulars in paragraphs 23(ii) and 23(iii) also plead a series of agreements, however the particulars to paragraph 23(iv) confusingly pleads a single agreement.
Paragraph 24 of the Statement of Claim also confusingly pleads that:
[…] it was a term said agreement(s) referred to in paragraph 24 hereof, in the alternative the [Husband and the Wife] did provide assurances to the [Interveners], that the additional moneys so lent by the Plaintiffs would be repaid by the [Husband and the Wife].
Paragraph 24 of the Statement of Claim therefore pleads an agreement or a series of agreements. The Statement of Claim does not otherwise provide any further particulars of the discussions during which it is alleged that the oral agreement or agreements were entered into between the Interveners and the Husband and the Wife.
In paragraphs 23 to 26 of the Defence the Wife does not admit the allegations made in paragraphs 23 to 26 of the Statement of Claim and requires further particulars of the allegations.
In paragraph 27 of the Intervener’s September 2018 Affidavit, the Intervener deposed that the Additional Funds were “lent at the request of the Respondent Husband to undertake various maintenance works on the property”. The six transactions are claimed to be evidenced in account statements for the Cheque Account[87]. There is only one transaction where there is a documentary record of money being received by the Husband, being the sum of $5,000 on 21 June 2013[88].
[87] Intervener’s September 2018 Affidavit, at [27] and Exhibit “B-7”.
[88] Exhibit I4.
In the Husband’s August 2018 Affidavit, the Husband deposed that the Interveners had paid $170,000 as the balance of the purchase price for the E Street, Suburb F Property[89]. The Husband’s Balance Sheet indicated that the sum of $177,400 was owed to the Interveners for the purchase of the E Street, Suburb F Property. The Husband’s August 2018 Affidavit did not otherwise refer to a series of transactions between himself and the Intervener advancing the Additional Funds. The Husband’s Financial Statement stated that the sum of $175,000 was owing to the Interveners by way of a home mortgage[90].
[89] Husband’s August 2018 Affidavit, at [16(b)].
[90] Husband’s Financial Statement, at [2], [46] and [55].
The Intervener and the Husband did not give any direct evidence of a conversation that either of them had with each other concerning the Additional Funds. Further, the Intervener and the Husband did not give any direct evidence of a conversation that either of them had with the Wife, either together or separately concerning the Additional Funds, either before or after the Additional Funds were advanced.
When the Husband was cross-examined by Counsel for the Wife, the Husband agreed that he had received $29,700 from the Intervener[91]. The Husband was not able to demonstrate where the money went after he received it or what the money was spent on. The Husband said:[92]
[91] Transcript P109:L4.
[92] Transcript P109:L6-16.
I had a box that full of receipts which I threw out after I sold the house.
When the Wife was cross-examined by Counsel for the Interveners, the Wife denied ever being present during any discussion between the Husband and the Intervener when the Husband made any of the requests for the Additional Funds. The Wife also denied hearing any discussion between the Husband and the Intervener about the Additional Funds after these monies had been advanced[93].
[93] Transcript P62:L12-28.
The Husband was not in regular employment during the marriage. The Husband produced a Resume[119] (Resume) which, if accurate demonstrates that the Husband was only employed for approximately 55 months during the cohabitation period of 10 and a half years, being less than half of the period of the marriage. The Husband has been extensively reliant on Centrelink payments throughout the marriage[120].
[119] Exhibit I2.
[120] Wife’s Trial Affidavit, at [54] and Annexure “Q”.
The Wife gave evidence that she first started to receive Centrelink payments in 2007 when her first daughter was born[121]. The Wife also gave evidence that she commenced working at the Employer T in Suburb L in 2013[122]. The Husband agreed with the Wife’s evidence[123].
[121] Transcript P39:L7-20.
[122] Transcript P18:L5-15.
[123] Transcript P196:L21-24.
The Wife deposed that she paid to the Intervener $300 to $400 on a weekly basis for rent and other expenses[124]. The Husband agreed that the Interveners “were paid expenses jointly from funds gained through my work, and the small amount of shares I had”[125]. When being cross-examined by Counsel for the Wife, the Husband “absolutely” agreed that he would pay living expenses to the Interveners, although he would not characterise such expenses as rent[126].
[124] Wife’s Trial Affidavit, at [27].
[125] Husband’s August 2018 Affidavit, at [15].
[126] Transcript P81:L1-28.
Contributions Post Separation
The Husband has not earned an income since April 2018[127] and has been reliant on Centrelink payments.
[127] Transcript P110:L7-28; Transcript P87:L40-46.
The Wife was employed as a Customer Service Officer until 2019 and has subsequently been reliant on Centrelink benefits to support herself and the Children. Prior to becoming unemployed the Wife was earning approximately $20,000 per annum gross[128].
[128] Wife’s Outline of Case, p.9.
Section 79(4)(b) Non-Financial Contributions – Property
During the relationship the Husband made non-financial contributions both directly and indirectly to the acquisition, conservation and improvement of the property of the parties.
The Husband undertook renovation works to the E Street, Suburb F Property from 2011. After the passage of over eight years the renovation works were not completed by the Husband. The E Street, Suburb F Property was a brick veneer home with two bedrooms, a dining room, kitchen, lounge and bathroom. The E Street, Suburb F Property was sold in June 2019 with incomplete bathroom works and without a laundry[129].
[129] Exhibit R1.
The Wife deposed in paragraphs 18 to 26 of the Wife’s Trial Affidavit that the Husband failed to comply with the 19 October 2018 Orders in listing the E Street, Suburb F Property for sale and in making discovery. As a result of the Husband’s noncompliance with his discovery obligations, the Wife was required to file and serve subpoenas to both the Commonwealth Bank of Australia and the Australia and New Zealand Bank. The Court notes that the 19 October 2018 Orders were Consent Orders.
The Wife deposed in paragraphs 27 to 38 of the Wife’s Trial Affidavit that the Husband impeded the sale of the E Street, Suburb F Property and caused an increase in her legal fees as a result of his behaviour.
The Wife’s evidence in relation to the Husband’s behaviour referred to in the two preceding paragraphs was not challenged.
Section 79(4)(c) Non-Financial Contributions – Welfare of the Family
During the marriage the Wife has been the primary carer of the Children. The Wife also undertook the cooking and cleaning and other household duties[130].
[130] Wife’s Trial Affidavit, at [54].
Since the parties’ separation the Wife has continued to be the Children’s primary carer. The Children spend five nights each alternate week with the Husband, from afterschool Friday to before school Wednesday. The Husband returns the Children to school on Wednesday mornings. The Children therefore spent 35 per cent of their time living at the Interveners’ home with the Husband[131]. These arrangements have been in place since the commencement of this proceeding[132]. There is no court order in relation to this arrangement[133].
Section 79(4)(d) the effect of any proposed order upon the earning capacity of either party to the marriage
[131] Wife’s Trial Affidavit, Annexure “A”.
[132] Wife’s Trial Affidavit, at [8].
[133] Transcript P81:L30-46.
The Orders which the Court proposes to make will not affect the income earning capacity of either party.
Section 79(4)(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage
When the Wife was employed she was required to pay the Husband child support of $16.67 a fortnight, being $36.25 a month. The Wife continued to pay child support to the Husband until 17 November 2019, when the Wife undertook a further course to assist her in finding employment[134].
[134] Wife’s Trial Affidavit, at [4].
The Husband described the payment of child support he had received from the Wife of some $40 a month derisively as “nothing”[135], when cross-examined by Counsel for the Wife. The Husband said “She can have that money”[136]. Notwithstanding his dismissive attitude towards the sum of $40 a month, the Husband was unable to provide any credible explanation as to why he had not requested that the assessment be cancelled. The Husband was living rent free with his parents, had minimal expenses and had savings of some $8,000 at that time. The Children whilst living primarily with the Wife would have benefitted from the additional funds, as the Wife was having to meet all of her living expenses on a modest income of $20,000 per annum. The Husband agreed that since separation he had not provided any financial assistance to the Wife for the Children[137].
[135] Transcript P120:L24.
[136] Transcript P120:L29.
[137] Transcript P119:L42-47.
During cross-examination in relation to the Wife’s payment of child support of $40 a month to the Husband, the Husband launched into a tirade of self-pity, blaming anyone but himself for his own behaviour. The Court had to remind the Husband firmly to desist from his accusations and lamentations[138].
[138] Transcript P120:L45-P121:
The Husband’s Financial Statement stated that the Husband received $11 a week child support[139]. It also stated that the Husband paid child support of $100 a week[140]. When Counsel for the Wife put to the Husband in cross-examination that he had never paid the Wife $100 a week child support, or any child support at all, the Husband obfuscated and was non-responsive. The Husband said that he had to check his records, would have to check with the Child Support Agency and then he attacked Counsel over allegedly being offensive towards him concerning his use of his reading glasses. The Court was required to intervene in light of the Husband’s behaviour[141].
[139] Husband’s Financial Statement, at [13].
[140] Husband’s Financial Statement, at [31].
[141] Transcript P100:L24-P101:L37.
The Husband’s last employment ceased in 2018. This coincided with the filing of the Initiating Application. The Court notes that the Husband has recorded in the Resume that his employment ceased in 2018[142]. The Husband has not produced any documents to independently verify the actual date of termination of his last employment.
[142] Exhibit I2.
During the Husband’s last period of employment he did not pay any child support. The Resume indicates that the Husband was employed with:
a)Employer U for three months in 2017.
b)Employer V between 2017 and 2018.
During the period between 2017 to 2018 the Husband was earning an income that was being paid into his ANZ Access Advantage account #... (Access Advantage Account)[143]. The information from the Access Advantage Account was obtained by the Wife’s Solicitors as a result of the ANZ Subpoena. The Information in the Access Advantage Account reveals that from 2017 to 2018 the Husband was regularly receiving a gross income of approximately $1,000 a week[144]. The Husband did not pay any child support during this period.
[143] Wife’s Trial Affidavit, at [5] and Annexure “B”.
[144] Wife’s Trial Affidavit, at [5].
Taking into account the Husband’s employment history, that he has not been employed since 2018 there is little prospect that the Husband might be liable in the future to provide child support for the Children. It is nevertheless a relevant consideration that these Orders will not relieve the Husband of his obligation to pay child support in the future at such amount as is determined by the Child Support Agency, having regard to the circumstances of the parties, including his income.
Evaluation of the Parties’ Contributions
The Wife submitted that the Husband was rarely employed during the marriage and that any contribution loading in favour of the Husband as a result of the parties living with the Interveners had been eroded as a result of the Wife’s financial and homemaker contribution. The Wife submitted that a greater adjustment should be made in favour of the Wife pursuant to s.79(4) of the Act[145].
[145] Wife’s Outline of Case, p.8.
Having regard to the matters that the Court has referred to above, and the finding that the Interveners contribution of the Funds was not a loan to the Husband and the Wife, the Court is of the opinion that a division based on s.79(4) factors, other than s.79(4)(e) is a division of 40 per cent to the Wife and 60 per cent to the Husband.
That division appropriately recognises the very significant contribution to the matrimonial property in the form of the Funds advanced by the Interveners to the Husband. This division also appropriately recognises the Husband’s initial contribution by way of his accumulated superannuation. The division also recognises the Wife’s financial contribution and non-financial contributions as homemaker and parent.
Relevant Section 75(2) Factors
Certain of the considerations set out in s.75(2) of the Act are not relevant to the facts of this matter. Therefore, while the Court has considered all of the factors listed in s.75(2) for the Act, the Court will only focus on those that are considered to be of relevance to these proceedings.
Section 75(2)(a) the age and state of health of each of the parties
The Wife was born in 1986 and is aged 34. The Wife is in good health[146].
[146] Wife’s Trial Affidavit, at [56].
The Husband was born in 1970 and is aged 50. There is no evidence that the Husband is otherwise than in good physical health. There is evidence before the Court that the Husband’s mental health would benefit from professional assessment. The evidence before the Court is that the Husband has significant difficulty with emotional regulation, in particular anger management.
The Husband was asked directly by Counsel for the Wife whether he has any issues with his mental health. The Husband conceded:[147]
[147] Transcript P108:L15-30.
Perhaps issues with my anger. Yes. Perhaps.
The Husband said that he refused to take medications for mental health and that he had not consulted a mental health professional.
The Husband admitted that on 7 October 2018, shortly after the Amended Initiating Application and the Wife’s 5 October 2018 Affidavit were filed, at 7.54 am in the morning he left a voice message on the Wife’s mobile phone (Voicemail). The Husband admitted that the Voicemail was him just screaming at the Wife without any words[148]. The recording of the 14 second Voicemail was played in the Courtroom during the Final Hearing. It was most unpleasant to listen to.
[148] Transcript P151:L5-7.
Eight minutes after leaving the Voicemail on 7 October 2018, the Husband followed up the Voicemail with the following text at 8.02 am on the Wife’s mobile phone[149]:
[149] Exhibit A2.
(expletives in a foreign language) all over again. !!!!!!!!
The State allows it!!!!!!
That same day at 9.38 am the Husband left two further texts on the Wife’s mobile phone[150]. The first being:
Can I set the house on fire?
And the second being:
[150] Exhibit A2.
Watch me.
The Husband was cross-examined in relation to these threats to burn the house down. The Husband sought to justify his behaviour as follows:
[…] this is just because of my anger. Right? […] Well, she has threatened to take my children from me. Right? She has taken the passports. Okay? Right? You – you don’t get that[151].
[151] Transcript P153:L25-29.
Immediately after a copy of the text messages had been tendered by Counsel for the Wife, the Husband commenced a tirade of abuse directed at the Court, inter dispersed with expletives, concerning the injustices the Husband perceives in the legal system[152].
[152] Transcript P155:26-39.
The Husband then admitted that on 7 October 2018 an application for an intervention order was made by the police, in relation to the Voicemail and the text messages he sent to the Wife that day. The Husband also admitted that an Intervention Order had been made that day against him for a period of 12 months (Intervention Order)[153].
[153] Transcript P155:L41-P156:L36.
Notwithstanding the existence of the Intervention Order, only two days later on 10 October 2018 at 10.08 am the Husband sent a further text to the Wife, as follows:[154]
[154] Exhibit A2.
300-400 a week in rent. ... Liar. I’ll be communicating this to your father.
The word ... is highly derogatory term to be directed to a person of the Wife’s faith. The Husband’s response when cross-examined in relation to sending this text, was that he still intended to carry out his threat of communicating this information to the Wife’s Father[155].
[155] Transcript P154:41-P155:5.
Further, the Husband sent to the Wife’s solicitors an email on 10 January 2019, copied also to the Husband’s sister[156]. This email was stated to have been sent by “Mr Bambury”. The Wife said that the Husband did not have a middle name and that ... meant in Country W “I’m going to get the blood” or “I’m going to kill you”[157]. The Wife confirmed the use of this word in this context as being a threat and said that she felt scared when she was shown the email. The Wife said:
It is revenge about what he is writing there and I am feeling violence[158].
[156] Wife’s Trial Affidavit, at [32] and “J”.
[157] Transcript P20:L20-21.
[158] Transcript P19:L44-45.
The Husband explained his understanding of the use of ... as follows:
[…] where the state is absent when it comes to justice, you are obligated to – something along those lines[159].
[…] ... means “blood for blood”. So if someone kills a member of my family, I’m obligated, if I don’t get justice […] to murder the person[160].
[…] it’s the old Country W law, “eye for an eye, tooth for a tooth”[161].
[159] Transcript P110:L44-45.
[160] Transcript P111:L12-14.
[161] Transcript P111:L19
The Husband confirmed that he did not include ... in the signature for all of his emails. He denied it was a threat. When asked by Counsel for the Wife why he had included in 10 January 2019 email, the Husband’s response was:
Well, because it’s where – and, again, I go back to my premise. Where – where the state is absent when it comes to injustice, I’m obligated to get redress[162].
[162] Transcript P111: L37-40.
The Husband then proceeded to express his anger against the lawyers representing the Wife. The Husband said:
I’m angry with the statements that come from your group that are-dishonest[163].
[163] Transcript P112:L12-13.
The Husband responded in the following manner when Counsel for the Wife put the following question:
Counsel : You really don’t like your wife, do you?
Husband: No. In fact, My hatred is towards you two[164].
[164] Transcript P176:L1-2.
This comment was directed towards Counsel and his instructing solicitor.
The Court also observes that throughout the Final Hearing the Husband swore persistently and broke out into unrestrained tirades, usually when Counsel for the Wife had made a relevant point in cross-examination[165]. These tirades were directed towards Counsel for the Wife and also at the Court. The Court does not intend to set out the substance of these episodes in this Judgment.
[165] For example Transcript P155:L26-P156:L8
The Court records its significant concern about the Husband’s behaviour during the Final Hearing and in particular the pride and defiance with which the Husband articulated various conspiracy theories. The Court again reiterates it recommendation that the Husband would benefit from an assessment from a mental health professional.
Section 75(2)(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
The property and financial resources of the parties are referred to in these reasons.
The Husband’s Financial Statement stated that the Husband received no salary or wages and did not receive any government benefits. The Husband’s only source of regular income was the child support paid by the Wife. There was no dispute that the Husband has the physical and mental capacity to participate in appropriate gainful employment. The Husband says that he has been looking for employment, in particular since May 2018, however he has provided no corroborative evidence of any efforts made by him. The Husband describes himself as being a tradesman by trade[166]. When cross-examined about his efforts to find employment since 2018, the Husband said:
I fulfill my obligations to the job agencies. That’s all I can do[167].
[166] Wife’s Trial Affidavit, at [4].
[167] Transcript P110:L27-28.
The Wife said that the Husband was unemployed for most of the relationship and that he was “lazy and would constantly come up with excuses as to why he did not work”[168]. The Wife said that the Husband was “more than capable of deriving an income”[169]. In that regard Counsel for the Wife said:[170]
[…] in terms of his job prospects, […] your Honour has seen his resume. It’s quite impressive. He’s a tradesman. One would have thought there’s plenty of work for that. He has worked at Employer R in a white-collar situation, but he has some sort of particular issue about the state, but not wanting to work, or - he even asked me for a job.
[…]
So where can we put this? He is qualified. He is capable. But he just doesn’t want to work.
[168] Wife’s Trial Affidavit, at [54].
[169] Wife’s Trial Affidavit, at [60].
[170] Transcript P326:L42.
The Court accepts that submission and finds that the Husband has not exploited his full earning capacity since May 2018.
The Husband lives with his parents and has done so all of his life. The Husband has no recurring expenses, apart from those associated with registration of his motor vehicles.
The Wife’s Amended Financial Statement stated that the Wife receives an income of $217.68 a week, being $138.18 from Family Tax Benefit A and $79.50 from Rent Assistance. The Wife has weekly expenses totalling $708, which includes $350 in rent. The Wife deposed that she had been actively trying to find employment for a period of twelve months prior to the Final Hearing. The Wife described her English as “not strong”[171]. The limitations that the Wife experiences with her English were evident when the Wife gave evidence and when the Wife was cross-examined.
[171] Wife’s Trial Affidavit, at [59].
The Court takes into account in relation to the ability of both the Husband and the Wife to find employment, the serious events which have occurred since the conclusion of the Final Hearing. Subsequent to the conclusion of the Final Hearing, merely weeks later the serious effects of the COVID-19 pandemic (Pandemic) became evident in the State of Victoria.
Section 75(2)(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
Since separation the Wife has continued to be the Children’s primary carer. The Children spend five nights each alternate week with the Husband at the Interveners’ home, from after school Friday until the commencement of school Wednesday. This arrangement has been in place since the commencement of this proceeding[172].
[172] Wife’s trial Affidavit, at [8].
The Court notes that during the Pandemic the responsibilities of the primary parent have increased significantly, in particularly in relation to home schooling. At the time of delivery of this judgment Victoria is undergoing it’s second period of third stage lock down, which has ramifications for home schooling for the Children.
The Children are still quite young with X aged 12 and Y aged 9.
Section 75(2)(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii)a child or another person that the party has a duty to maintain;
The commitments of each of the parties that are necessary to support himself/herself and those that they have a duty to maintain are set out in their respective financial statements.
The Husband was cross-examined about the accuracy of the Husband’s Financial Statement.
Section 75(2)(e) the responsibilities of either party to support any other person;
Each party has a responsibility to contribute towards the support of the Children. The Wife is responsible for the expenses of the Children whilst they are in her care.
Apart from the Children there was no evidence that either party had responsibilities to support any other person.
Section 75(2)(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;
The Husband in the Husband’s Financial Statement deposed that he was not in receipt of a pension, allowance or benefit within the meaning of s.75(2)(f). In relation to the Wife, the Court refers to the discussion in relation to s.75(2)(b) of the Act.
Section 75(2)(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
The asset pool is a small one. The orders that I intend to make will take into account the fact that the Husband has the benefit of living rent free in the Interveners home whilst the Wife will have to pay for accommodation for both herself and the Children and bear the costs associated with that accommodation.
Section 75(2)(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
The parties cohabited for a period of ten and a half years. They commenced cohabitation when they married in 2006 and separated on 28 December 2018. The earning capacity of the Wife has been affected by the duration of the marriage, as she has been the primary carer of the Children and her opportunities for participation in the work force have been curtailed.
Section 75(2)(l) the need to protect a party who wishes to continue that party’s role as a parent;
Both the Husband and the Wife will be able to continue their roles as parents.
Section 75(2)(m) if either party is cohabitating with another person - the financial circumstances relating to the cohabitation;
The Wife’s gave evidence that her relationship with her partner had recently ceased[173].
Section 75(2)(n) the terms of any order made or proposed to be made under section 79 in relation to:
[173] Transcript P21:L6-27.
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party;
I am satisfied that the orders that I intend to make under s.79 of the Act enable both parties to maintain themselves to the extent possible with the limited assets available in the asset pool.
Section 75(2)(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;
This is discussed in relation to s.79(4)(g) of the Act.
Section 75(2)(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
The Husband claims that as a result the losses of his shares in the 2008 stock market crash he has $58,000 in carried-forward tax losses. The Court intends to consider this as a financial resource available to the Husband.
Conclusion as to Future Needs
I have taken into consideration the above matters, including but not limited to the following:
a)The Children will be living with the Wife.
b)The relatively young age of the Children.
c)The Husband’s poor employment history.
d)The Husband’s failure to pay child support after separation, including periods of employment when he was in a position to do so.
e)The Wife’s limited English language skills.
f)The Husband’s age and consequent restricted ability to increase his superannuation.
g)The Husband’s ability to continue living rent free with the Interveners.
h)The significant economic uncertainty created by the Pandemic.
Because the pool is small the Court must look at the reality of the parties’ financial positions rather than simply percentages. The Wife has the ability to earn an income, however she will bear the financial burden of maintaining the Children for the foreseeable future. The Husband has demonstrated to the Court no inclination or ability to do so.
After taking into account these competing considerations the Court is satisfied that there should be an adjustment in favour of the Wife of 15% for s.75(2) factors.
Adjustment of Interests
The Orders which I intend to make will result in:
a)The Wife receiving 55% of the non-superannuation asset pool and the Husband receiving 45% of the non-superannuation asset pool.
b)The Wife receiving 54.44% of the superannuation asset pool and the Husband receiving 45.56% of the superannuation asset pool.
c)The Wife receiving 45.3% of the total non-superannuation and superannuation asset pool.
d)The Husband receiving 54.7% of the total non-superannuation and superannuation asset pool.
Conclusion
I have determined that the division of the assets will be achieved with the arrears of the Wife’s rent in the sum of $4,625 being paid from the proceeds of sale of the E Street, Suburb F Property (Proceeds of Sale). This sum is to be paid immediately. The Wife is then to receive the sum of $133,673.37 from the Proceeds of Sale.
The Husband is to retain the Motor Vehicle 1 and the Motor Vehicle 2 and is to receive a payment of $102,569.76 from the Proceeds of Sale.
The Court is satisfied that the division of property is just and equitable.
The Court intends to make Orders accordingly.
Costs
The parties sought that applications for costs, including reserved costs, be heard after Judgment is delivered. The Interveners also sought a stay on the distribution of the proceeds of the E Street, Suburb F Property pending the hearing of any costs application they made. The Court considers such an order is appropriate, especially in light of the costs which were thrown away by reason of the Husband’s failure to make proper discovery and the costs which were thrown away during the trial as a result. The proceeding has been listed for Mention pursuant to r.21.02(1)(c) of the Rules.
I certify that the preceding two-hundred and fifty-four (254) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC
Associate:
Date: 22 July 2020
Key Legal Topics
Areas of Law
-
Family Law
-
Equity & Trusts
Legal Concepts
-
Appeal
-
Costs
-
Estoppel
-
Fiduciary Duty
-
Remedies
-
Res Judicata
0
13
6