Banford and Sansome

[2016] FCCA 1321

FEDERAL CIRCUIT COURT OF AUSTRALIA

BANFORD & SANSOME [2016] FCCA 1321

Catchwords:
FAMILY LAW – Property orders sought – period of cohabitation of approximately eight years – no children – assessment of respective contributions – wife’s initial contribution far greater – small asset pool – s.75(2) matters fairly equal – justice and equity – orders made.

Legislation:

Family Law Act 1975, s.75(2)

Applicant: MS BANFORD

Respondent: MR SANSOME

File Number: MLC 7178 of 2013

Judgment of: Judge Hartnett

Hearing dates:

2 June 2015, 10 December 2015 and

26 April 2016

Delivered at: Geelong

Delivered on: 1 June 2016

REPRESENTATION

The Applicant: In Person

The Respondent: In Person

THE COURT ORDERS THAT:

1. Of the monies held in trust on behalf of the parties in the trust account of the husband’s former solicitor and in the sum of $51,741.50 approximately together with interest accrued thereon, the sum of $5,174.15 be paid out to the husband together with interest that has accrued on that sum and the balance remaining, together with interest on that balance, be paid out to the wife.

2. Each party retain their own superannuation entitlements.

3. Each party retain those chattels in each of their respective possession and have ownership thereof.

4. Otherwise all extant applications are dismissed and the matter is removed from the list.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7178 of 2013

MS BANFORD

Applicant

And

MR SANSOME

Respondent

REASONS FOR JUDGMENT

Proceeding History

1. In an initiating application filed 3 November 2014 for property orders, the Applicant wife sought the following:- 

   “1. That the assets be divided between MR SANSOME (“MR SANSOME”) and MS BANFORD (“MS BANFORD”) as to 70% to MS BANFORD and 30% to MR SANSOME.

   2. That each party pay their own costs of and incidental to these proceedings and any outstanding order for costs against either party be and is hereby discharged. 

   3. Such further orders as the Honourable Court deems fit.” 

2. The Respondent husband filed a response on 3 February 2015.  He sought by way of final orders the following:-

   “1. That the property known as and situate at Property S (“the Property S property”) be sold as soon as soon as (sic) practicable and the proceeds, after payment of the costs of sale, mortgage and other encumbrances on the property be apportioned between the parties, so as to give effect to a 50/50 division of assets and superannuations between them.

   2. That the Husband transfer his right title and interest in the property known as Property D to the Wife subject to the wife refinancing the mortgage on the Property D into her sole name within 30 days of final orders being made.

   a. In the event of the wife being unable to so refinance the mortgage over the Property D property, the property to be sold and, after payment of the costs of sale, mortgage and other encumbrances on the property, any remaining proceeds be added to the proceeds of sale of the Property S property

   3. That the Husband be entitled to the chattels contained in the two shipping containers on the Property S property, including but not limited to the items set out in Schedule 1 annexed hereto:

   4. That the wife do all acts and things required (including, if necessary, to seek a variation of any Intervention Orders) to enable and facilitate the husband to remove such of the said chattels that remain on the Property S property within 30 days of these orders or as soon as practicable upon weather and the physical conditions of the property permitting

   5. Such further and other orders as this Honourable Court deems fit.” 

3. I note that in the Schedule 1 attachment to the husband’s response filed, were three pages of chattels. 

4. At the time of filing of the initiating application and response both parties were litigants in person. The wife remained a litigant in person throughout the proceedings. The husband obtained the services of a solicitor, Deborah Sue Margaret Donoghue of Portland for a time in the proceedings. In the courtroom, however, the husband always appeared as a litigant in person. 

5. This proceeding remained in the lists for a lengthy period of time.  That was not as a result of the Court’s inability to hear the matter in a timely fashion but rather a result of the parties’ litigious bent and the need for adjournments to effect a sale of the real property situate at Property D, which was a slightly unusual sale in that the parties agreed to sell the real property to the Applicant wife’s son, Mr S. The Applicant wife had reason to be slow about the progress of that sale and the Respondent husband had reason to desire the property to be sold to Mr S in circumstances where the sale of the property to an independent third party would result in a loss sustained to the parties that the sale to Mr S would avoid. 

6. Even on the final hearing of this matter on 26 April 2016, the Court had first to deal with a contravention application of the wife filed 31 December 2015, which was initially adjourned at the parties’ request and then returnable on 18 April 2016. The parties wished to avoid the need for them to attend on two occasions.  The Court however, had to deal with the contravention application first, before being able to proceed with the conclusion of the substantive proceedings. 

History of the Matter

1. The proceedings first came before the Court on 3 February 2015.  On that occasion the proceedings were adjourned to 2 June 2015 for final hearing.  Various procedural orders were made requiring the parties to file and serve further affidavit material. A conciliation conference was ordered for May 2015.  Relevantly, included in orders made on 3 February 2015 were the following:

   “…

   8. That each of the parties obtain a valuation of all of the husband’s and/or the husband’s and wife’s equipment, tools of trade, bluestone building material and other building materials situate at:-

   (a)  Property S in the State of Victoria; 

   (b) Property B in the State of Victoria;  and

   (c) (omitted) in the State of Victoria (property of Mr P), being approximately 120 tonnes of bluestone and any other building materials.

   9.  Until further order each party is hereby restrained by themselves their agents and/or servants, from selling, alienating, further encumbering or disposing of in any way their assets and/or the assets of either of them.”  

2. The matter failed to resolve at the conciliation conference, where both parties appeared as litigants in person. 

3. On 2 June 2015, the matter was to proceed as a final hearing. That was not possible.  The Court did however make various orders that day, ultimately by consent. The proceedings were drawn out because of the need for the Court to in effect, mediate (there was no proper evidence before the Court as to why a particular chattel should become the property of one more so than the other for the most part) a resolution of the parties’ chattels. That resolution did not include the totality of the parties’ chattels which the parties extensively argued about. It did include however many of those chattels. 

4. The orders of 2 June 2015, were relevantly as follows:- 

   “1. The property situate and known as Property S in the State of Victoria  (‘Property S property’) be forthwith placed on the market for sale on the following terms and conditions:-

   (a) it be by private sale;

   (b) the agents appointed be Ms S of (omitted) Real Estate;

   (c) the reserve price shall be $165,000 or otherwise as agreed in writing between the parties;

   (d) the property shall be marketed for sale for a period of 90 days with the sole agent referred to in sub-paragraph (b) above before the parties can consider other agents to be appointed either conjointly or singularly;

   (e)advertising and costs of sale shall be determined by the estate agent but no more than $2,000 shall be spent on same unless otherwise agreed in writing between the parties; and

   (f) any other and further terms as agreed.

   2. The two shipping containers that form the transportable dwelling situate on the Property S property can be sold with the real property or independent of it at the parties’ joint election. The sale price is to be $20,000 or otherwise as agreed in writing between the parties.

   3. The proceeds of sale of the Property S property are to be applied as follows:-

   (a) first, in payment of all selling expenses;

   (b) second, in payment of the mortgage encumbrance;

   (c) third, in payment of all and any outstanding rates; and

   (d) the balance, to be held in an interest bearing trust account in the joint name of the parties, and on behalf of the parties, by Debra Sue Margaret Donoghue Lawyer until further order.

   4. The property known as and situate at Property D in the State of Victoria (‘the Property D property’) be forthwith placed on the market for sale on the following terms and conditions:-

   (a) it be by private sale;

   (b) the agents appointed Ms S of (omitted) Real Estate;

   (c) the reserve price shall be $200,000 or otherwise as agreed in writing between the parties;

   (d) the property shall be marketed for sale for a period of 90 days with the sole agent referred to in sub-paragraph (b) above before the parties can consider other agents to be appointed either conjointly or singly;

   (e) advertising and costs of sale shall be determined by the estate agent but no more than $2,000 shall be spent on same unless otherwise agreed in writing between the parties; and

   (f) any other and further terms as agreed.

   5. Notwithstanding any other order to the contrary the parties shall offer to Mr S, the purchase of the Property D property at a price agreed between the parties and Mr S. Such process can occur up to 2 September 2015 and not beyond. Thereafter, failing agreement order 4 herein shall become immediately operative.

   6. Each party shall file and serve any further affidavit material they intend to reply upon not less than 14 days prior to the adjourned date.

   7. The following chattels will become the property of the wife:-

   (a) aluminium roofing sheets (x11);

   (b) desk;

   (c)computer;

   (d) television;

   (e) television unit;

   (f) DVDs;

   (g) DVD player;

   (h) couch;

   (i) bed chair;

   (j) table;

   (k) (omitted) table;

   (l) swag;

   (m) overlocker;

   (n) sewing machine;

   (o) outdoor setting;

   (p) bicycle;

   (q) (omitted) wood heater;

   (r) (omitted) vacuum cleaner;

   (s) Subaru car;

   (t) red gum sleepers long (x7);

   (u) red gum sleepers short (x4);

   (v) pile of red gum sleepers;

   (w) self-inflating mattresses (x5);

   (x) incubator;

   (y) new spa bath;

   (z) toilet pan;

   (aa) two drop-in hand basins;

   (bb) five compartment food warmer;

   (cc) shower base;

   (dd) bags of insulation;

   (ee) lawn mower;

   (ff) four pine posts (x9);

   (gg) books; and

   (hh) necklace.

   8. The following chattels will become the property of the husband:-

   (a) timber;

   (b) tractor scarifier;

   (c) spray paint equipment;

   (d) butchering equipment;

   (e) meat hooks;

   (f) brass boat prop;

   (g) bronze shaft;

   (h) two leg vices;

   (i) (omitted) pump;

   (j) swage block;

   (k) large anvil;

   (l) die set;

   (m) belt sander;

   (n) 9 inch angle grinder;

   (o) lengths of hardwood;

   (p) hardwood not denailed;

   (q) hardwood bearers;

   (r) hardwood 3 metres lengths for shed (x66);

   (s) large steel trusses (x5);

   (t) steel legs (x10);

   (u) mixed hardwood lengths;

   (v) mixed hardwood;

   (w) hardwood flooring;

   (x) beam timber under unit;

   (y) lengths of dexian;

   (z) red gum posts (x55);

   (aa) entrance doors (x4);

   (bb) bank vault door;

   (cc) barrels of blasting grit (x2);

   (dd) (omitted) (x2);

   (ee) bluestone, sills, steps, granite, slate, bricks, (omitted) stone;

   (ff) pile of mixed timber;

   (gg) 44 gallon drums (x6);

   (hh) roofing slate;

   (ii) stainless buckets (x3);

   (jj) (omitted) Jacks (x2);

   (kk) old jack;

   (ll) filing cabinet;

   (mm) bullock cart parts;

   (nn) group of of jacks;

   (oo) sewing machine;

   (pp) cryovac machine;

   (qq) ropes;

   (rr) shearing combs, cutters and disc;

   (ss) toolboxes (x2);

   (tt) cowhide;

   (uu) grey cabinet and tools;

   (vv) light grey cabinet and contents;

   (ww) three drawer filing cabinet;

   (xx) old four drawer cabinet;

   (yy) Other items at $20;

   (zz) globe of the world;

   (aaa) tilly lamps;

   (bbb) tractor muffler;

   (ccc) chains;

   (ddd) stainless cabinet;

   (eee) hooks;

   (fff) bait pump spray;

   (ggg) various planes;

   (hhh) pulleys;

   (iii) snatch rope and rope;

   (jjj) bin of wrenches and tools;

   (kkk) slate;

   (lll) odds and ends at $275;

   (mmm) six meter Oregon beams (x9);

   (nnn) oregon beams (x4);

   (ooo) roll of lead;

   (ppp) part roll of lead;

   (qqq) pile of lead;

   (rrr) sludge pump;

   (sss) old shearing plant;

   (ttt) shearing and trailer complete;

   (uuu) entrance door with pillars and stained glass panels;

   (vvv) 40ft container;

   (www) chain painted yellow;

   (xxx) beeswax block;

   (yyy) sunbeam buffer and grinder;

   (zzz) roll of five butchers knifes;

   (aaaa) sharpening stones;

   (bbbb) truck ramp;

   (cccc) stainless steel beer kegs (x2);

   (dddd) projector;

   (eeee) car floorjack;

   (ffff) wood thicknesser;

   (gggg) complete mobile lube station;

   (hhhh) brass spray;

   (iiii) coloured tray of odds and ends;

   (jjjj) steel cabinet;

   (kkkk) five part dent remover;

   (llll) bar fridge;

   (mmmm) old books;

   (nnnn) bollards (x2);

   (oooo) (omitted) bus;

   (pppp) (omitted) truck;

   (qqqq) galvanised iron lengths (x5);

   (rrrr) web trusses 24 ft;

   (ssss) van, contents, tools of trade;

   (tttt) sludge pump;

   (uuuu) (omitted) jacks and tools (x2);

   (vvvv) ladder;

   (wwww) tressel ladder;

   (xxxx) couch;

   (yyyy) iron bed;

   (zzzz) toolbox and tools;

   (aaaaa) timber samples;

   (bbbbb) moulding plane;

   (ccccc) box of molding and router blades;

   (ddddd) saw blades;

   (eeeee) socket box with tools;

   (fffff) quantity of old axes;

   (ggggg) roof slating tools;

   (hhhhh) cabinet and tools;

   (iiiii) post drill;

   (jjjjj) saw sharpening vice;

   (kkkkk) box of model cottages;

   (lllll) scaffold, boards and tressels;

   (mmmmm) tandem trailer;

   (nnnnn) Toyota truck;

   (ooooo) wheelbarrow;

   (ppppp) concrete mixer;

   (qqqqq) large anvil;

   (rrrrr) mid size anvil;

   (sssss) (omitted) cordless tools;

   (tttt) electric drill;

   (uuuuu) round saw;

   (vvvvv) laser level;

   (wwwww) wind-up (omitted) jacks;

   (xxxxx) assorted bottle jacks (30 or more);

   (yyyyy) large meat cleaver extra one; and

   (zzzzz) saw bench for (omitted).

   9. The husband’s agent and/or agents, which can include Ms J, shall attend on the Property S property and collect all such items which by these Orders become the sole property of the husband and which the wife shall make available and leave accessible, at such time as agreed between the parties.

   10. Otherwise all extant applications are adjourned part-heard to 10 December 2015 at 10am (with a further estimated hearing time of two days).

   11. There is liberty to the parties to apply.

   12. Each of the parties file and serve an affidavit as to:-

   (a) the remaining goods and chattels to be divided;

   (b) the proposed apportionment between the parties and reason for such apportionment; and

   (c) those items remaining to be sold at public auction.

   AND THE COURT NOTES THAT:

   A. It will not deal further with the parties’ chattels unless there is compliance with this order.

   B. The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Circuit Court Regulations 2000 (Cth).”

5. As can be seen from the above, it was not possible on 2 June 2015 for the parties to finally resolve their competing property applications.  The parties had to sell their real properties situate at Property S in the State of Victoria (‘the Property S property’) and Property D in the State of Victoria (‘the Property D property’). This then assisted in the determination of the value of the asset pool.  The wife was, during the proceedings and for a limited time living in the Property S property. The husband had taken up residence in his now wife’s home.  Situate on the Property S property were two shipping containers that formed a transportable dwelling.  Ultimately the purchasers of the Property S property did not desire to purchase the transportable dwelling together with two other containers.  It became the responsibility of the parties to remove all containers from the Property S property in order for settlement of the sale of the Property S property to proceed. 

6. The Property D property was listed for sale by the orders of 2 June 2015, although the parties appeared to acknowledge that the property would ultimately be purchased by Mr S, who had until that point in time not purchased the property, albeit he had been residing in it and meeting the parties’ mortgage expense.  The orders of 2 June 2015 put an end date to that situation, such that the parties and Mr S needed to come to an agreement as to the purchase of the Property D property prior to or at 2 September 2015.  Thereafter it was to be offered on the open market for sale. 

7. The chattel division set out in order number 7 of the orders of 2 June 2015 derived from an affidavit of Mr R sworn 25 May 2015.  Mr R is a retired real estate agent and auctioneer.  It was agreed between the parties that he would value the parties’ chattels and he did so on or about 10 April 2015.  His valuation of the goods and chattels is as annexed to his affidavit, exhibit RJD1.  The list attached was a value based on market value if the goods had to be sold on site, most probably in a clearing sale situation.  Included in that list of chattels was a number of items not valued by Mr R. 

8. Order number 9 of the orders made on 2 June 2015 provided for the husband’s agent and/or agents, which could include Ms J, his now wife, to attend on the Property S property and collect all such items which by those orders became the sole property of the husband and which the wife was ordered to make available and leave accessible at such time as agreed between the parties. 

9. The proceedings were otherwise adjourned part-heard to 10 December 2015 with liberty to the parties to apply. 

10. Order 12 of the orders of 2 June 2015 provided as follows:- 

    “12. Each of the parties file and serve an affidavit as to:-

    (a) the remaining goods and chattels to be divided;

    (b) the proposed apportionment between the parties and reason for such apportionment; and

    (c) those items remaining to be sold at public auction.”

11. In respect of order number 12 above, neither party filed an affidavit in strict compliance and the Court was left to proceed on the basis of a deficiency in evidence in that regard.  The Court noted on that occasion that it would not deal further with the parties’ chattels unless there was compliance with the orders of 2 June 2015.  Nevertheless, the parties sought ongoing for the Court to deal with the apportionment of the parties’ chattels. 

12. On 10 December 2015, it was still not possible for the proceedings to be concluded.  The orders, made by consent, were arrived at after some considerable time was spent ascertaining the parties’ respective positions. Otherwise absent, was necessary evidentiary material, required for the Court to make a determination. The orders made were as follows:-

    “1. By 5 February 2016 the Respondent husband remove from Property S in the State of Victoria at his expense two containers situate thereof being:-

    (a) The 40 foot container as described in Order 7(vvv) of the Orders made on 2 June 2015; and

    (b) The Maxi Cube container, 40 foot x 9 foot 6 inches (approximately), which is to become the absolute property of the Respondent husband at a value of $2,200.

    2. Nothing in Order 1 or 3 hereof shall preclude the parties from selling the “transportable dwelling” with the real property at a purchaser’s election and upon their written agreement.

    3. By 5 February 2016 the Applicant wife remove from Property S in the State of Victoria at her expense the “transportable dwelling” which shall become her property absolutely at a value of $10,300.

    4. The real property situate at Property D in the State of Victoria be sold to Mr S pursuant to a contract for the sale of land in which the settlement of the sale date shall be no more than 90 days from this date. The Applicant wife to do all acts and things necessary to give effect to this order as the sole proprietor of the real property. The Respondent husband to remove the caveat placed by him over the property so as to enable settlement of the sale to occur.

    5. The following chattels will become the property of the Respondent husband:-

    (a) (omitted) Stove;

    (b) Red Gum Table;

    (c) Small Anvil;

    (d) Electric Shearing Plant;

    (e)Land Rover at a value not agreed and in relation to which the parties need to put valuation evidence before the Court;

    (f) (omitted) Tractor at a value not agreed and in relation to which the parties need to put valuation evidence before the Court;

    (g) (omitted) Pine Coffee Table at a value of $100;

    (h) Large Trailer / Box Trailer ((omitted) Manufactured);

    (i) Butcher’s Block;

    (j) The Caravan at a value of $350; and

    (k) The Meat Cleaver hook-end.

    6. The following chattels will become the property of the Applicant wife:-

    (a) Red Gum Clock at a value of $100;

    (b) Air Compressor at a value of $2,000;

    (c) The 500L Freezer; and

    (d) The Fridge;

    7. Until further order, each of the parties by themselves, their servants and/or agents are restrained from disposing of, selling, encumbering, giving away and/or damaging any of the goods and chattels in their respective possession in relation to which a claim is made by the other, without prior written agreement of the other party first obtained.

    8. Each of the chattels assigned to each of the parties in these Orders shall be made available, where necessary, by the other on 16 December 2015 at 3:00pm by production from the party in whose possession the item currently is to the other party at Property S. Each of the parties are at liberty to have agents conduct such handover on their behalf and/or in company with them.

    9. The matter otherwise be adjourned (part-heard) to 26 April 2016 at 10.00am for final hearing.” 

1. The Court notes in respect of the above orders that the husband was required to remove two containers from the Property S property and that the wife was required to move the transportable dwelling from the Property S property.  

2. The Court also notes that the orders of 10 December 2015 provided for the Property D property to be sold to Mr S, as had been envisaged by the parties since the commencement of the proceedings, so that there was some finality to that unsatisfactory arrangement in terms of ongoing financial obligation of the parties to each other.  The wife was the sole proprietor of that property, and she was required to transfer it to her son, Mr S.  The husband was to remove the caveat placed by him over the property to enable settlement of the sale to occur.  That sale benefitted both of the parties. 

3. The Court observes also that the orders of 10 December 2015 further dealt with the parties’ chattels.  In order number 5 each of the parties was required to put valuation evidence before the Court on the adjourned date in respect of the Land Rover and the (omitted) tractor.  Neither party put evidence before the Court that could be properly relied upon. That is, the evidence of a valuer on affidavit.  The wife put no evidence before the Court but I note that both items were in the husband’s possession.  The husband put some evidence before the Court though not satisfactory evidence in his affidavit of 23 April 2016.  He provided in an unmarked annexure to that affidavit but being page 14 of 19, valuations from (omitted) Motor Traders dated 19 April 2016, wherein the (omitted) tractor was valued as scrap value $200 and the (omitted) Land Rover was valued at $500.  The Land Rover had previously been valued in the affidavit of Mr R at $1000. I note that was approximately a year earlier. 

4. Order 6(b) of the orders of 10 December 2015 provided for an air compressor at a value of $2,000 to become the property of the Applicant wife. The husband had sought to keep the air compressor.  That along with other items was to be made available to the wife on 16 December 2015 to be produced by the husband at the Property S property.  The wife filed a contravention application in respect of that handover, which the Court heard at the commencement of the final hearing.  The Court found on the balance of probabilities that the husband had contravened the order and failed to handover the air compressor in accordance with the order.  The husband did hand the air compressor over to the wife’s agent some weeks thereafter, so that at trial it was in the possession of the wife. 

5. On 10 December 2015 the matter was adjourned part-heard to 26 April 2016.

Other preliminary matters

1. The wife filed an application for divorce on 23 August 2013.  She gave in that application a marriage date of (omitted) 2004 in (omitted) and a final physical separation date of 17 March 2013. She claimed the parties separated in late June 2011 but that they lived together thereafter, mostly separated under one roof from late June 2011 to late February 2012 and from 19 November 2012 to 17 March 2013. The wife deposed in the above periods to living together as husband and wife from late February 2012 to 24 April 2012 and from 5 November 2012 to 19 November 2012. The wife’s application for divorce was adjourned with the Court requiring further evidence as to separation. The wife provided that evidence. The husband did not oppose the divorce application by challenging the separation date albeit he swore in his affidavit sworn 28 January 2015 that the parties did not finally separate until February or March 2013. He swore the parties lived together as husband and wife until mid-February or early March 2013. He said of the wife’s application for divorce:-

   “When I was served with the wife’s application for divorce, I did not object to the dates as set out in the divorce as I was happy to be divorced.”

2. On 21 November 2013 a divorce order was granted to become effective after one month.  The Court determined that the parties had separated on 24 April 2012, as then asserted by the wife and as supported by the affidavit evidence that the wife was required to place before the Court. There had been thereafter a brief attempt at reconciling the marriage from 5 November 2012 for a period of up to two weeks which did not affect the separation date of 24 April 2012.  The parties then remained living under the same roof separately until March 2013 when physical separation occurred.  The wife then left the Property S property but she returned after the making of an Intervention Order in June 2013, with the husband being required to depart that property.

Other

1. A final intervention order was made on 25 June 2013 at the Magistrates’ Court in Portland. The aggrieved person was the wife. The named respondent was the husband.  That final intervention order prohibited the husband from going to or remaining within 50 metres of the Property S property after 2 July 2013.  It further provided that, as long as the respondent did not commit family violence while doing so, he would not contravene the order by going to or being at the Property S property before 2 July 2013, or after 2 July 2013 and before 9 July 2013, for the purpose of removing or accessing his tools, building materials and personal belongings.  It further provided that after 9 July 2013 the husband would not contravene the order by attending at the Property S property for the purpose of accessing or removing his tools, building material or personal belongings, as long as he did not attend within 20 metres of the residence of the said property.  Further, that where he accessed the property pursuant to the foregoing provisions, he was to give the wife reasonable notice of his intention to do so through a third person and the wife confirmed that notice had been received by her. The intervention order expired on 24 June 2014, unless extended or varied prior to that time. Subsequently the intervention order obtained by the wife against the husband was extended for a further 12 months.  At that time the husband made a cross-application against the wife.  She consented without admission to an undertaking in those proceedings for a period of 12 months.

Personal History

1. The wife was born on (omitted) 1957. She is now aged 58 years. The husband was born on (omitted) 1951 and he is now aged 64 years. The parties commenced their cohabitation in July 2004 and they separated in April 2012, not quite eight years later. There are no children of the marriage. Each of the parties has since remarried. The wife is engaged in home duties and resides in (omitted). The husband is a self-employed (occupation omitted) and resides in (omitted). His income is variable but could be described as modest and certainly well below the average weekly wage. There is no evidence before the Court as to the income of the husband’s spouse. The husband claims his wife (since 1 October 2014) Ms J, is financially independent from him. The information before the Court as to the wife’s now husband’s income is also deficient. The wife now lives with Mr J, her husband and continues to receive a disability support pension. Each of the Applicant and Respondent reside in the home of their now spouses. There is nothing in these facts that would provide a s.75(2) of the Family Law Act 1975 (Cth) (‘the Act’) adjustment in favour of either party.

2. At the commencement of the parties’ cohabitation the wife had the following assets:-

   a)She was the sole proprietor of the real property at Property D in the State of Victoria, with a value of approximately $240,000 (as sworn by the wife in her affidavit of 3 November 2014) and encumbered by way of mortgage in the sum of approximately $70,000.  Thus the wife claims to have had a net equity in that property of approximately $170,000.  The wife however swore the value of the property, as at 3 November 2014, (in her financial statement) to be $195,000. The parties in fact sold it in early 2016 for $175,000. The husband claims the value of the property was approximately $150,000 at commencement of cohabitation and in his affidavit sworn 28 January 2015, he claimed its value to have been “roughly the same as it is currently worth.” I note the wife claimed at that time its worth to be in the sum of $195,000.  In April 2016, with no real move in the property market in the area in the preceding 12 months, the parties sold the property to the wife’s son for a purchase price of $175,000. Relevantly, however, there was no expert evidence before the Court of valuation at the time of commencement of cohabitation.  There is an appraisal of value by Mr W of (omitted) Real Estate and Property D dated 24 November 2015 saying that as of June 2004, the property “in its current condition” had an indicative price of $200,000 to $210,000. This was of not much assistance given the property had been renovated by the parties in the interim and no valuation of that renovation was included. The parties are not valuers. What is agreed is that the value was at least $150,000. It was possibly and indeed probably more. With respect to the mortgage encumbrance, the husband did not admit the sum claimed by the wife and asserted that after cohabitation the parties drew down two amounts of $30,000 (totalling $60,000) with a further amount of $24,877 on 4 June 2007, this being the time at which the property was refinanced with a joint mortgage in the parties’ name. The total mortgage was then $251,000. Thus, by implication the husband suggested the mortgage at cohabitation to have been approximately $166,123 meaning the wife had little or no equity in the property on his calculation of value. This on the evidence was not supported. The wife was able to produce evidence that the mortgage encumbrance on 1 July 2005 was $72,817.39. This was one year after cohabitation commenced. In that same year the wife received a lump sum payment of $40,000 from WorkCover. This sum was placed by her into the home loan account (with the (omitted) Bank) of the Property D property on 16 September 2005. The closing balance on 21 November 2005 was $25,185.90. That included the repayment of $40,000 on 16 September 2005 made by the wife. Thus at commencement of cohabitation the wife had in excess of $80,000 equity in the property. In the first 12 months of cohabitation the wife added a further $40,000 contribution. Her contribution exceeded $120,000.

   b)$20,000 approximately in savings, but these funds were advanced by way of mortgage and not yet applied. They are already taken into account in the mortgage encumbrance referred to in paragraph (a) above.

   c)A (omitted) Subaru motor vehicle (that is, a nine year old vehicle). 

   d)Chattels.

   e)Superannuation.

3. At the commencement of cohabitation the assets and debts of the husband were as follows:-

   a)A debt to HBH Legal of approximately $8,000 or $4,000. Nothing turns on establishing the precise figure. The best evidence before the Court was that on 3 February 2005 HBH Legal rendered an account to the husband for monies owing of $4,517.05. 

   b)A debt to his daughter, Ms A, of approximately $3,700. This debt was paid by the wife prior to cohabitation. 

   c)A debt to Mr P of approximately $3,800 for a truck recently purchased by the husband from Mr P, but not yet paid for.  Payment in respect of the purchase of that vehicle was subsequently made out of the joint funds of the parties. 

   d)His tools of trade and chattels and other associated items and machinery.

   e)(omitted) truck given to him by his daughter.

   f)Superannuation.

4. The parties lived in (omitted) in New South Wales from 2004 until 2005, when they moved to Property S in the State of Victoria for the remainder of their cohabitation period. They mostly resided in the Property D property of the wife. 

5. For approximately the first four years of cohabitation until he finished school, one of the wife’s son’s from a previous relationship, A, lived with the parties and was financially dependent upon them.  The wife obtained maintenance from the child’s father and also a youth allowance.  The husband contributed financially in a very limited way towards the child’s support, being in terms of general household expenses.

6. Throughout the parties’ cohabitation the wife was in receipt of WorkCover payments which at commencement were $30,148 and increased gradually. In the 2011/12 financial year such payments were $33,819. Thereafter, and being only for a short period prior to separation, the wife commenced to (and continues to) receive a disability support pension. Throughout the cohabitation period the husband’s income was variable with a maximum in the 2004/05 financial year of $66,424 and thereafter a maximum of $28,447 and a minimum of $6,367.  That is, the wife’s income receipt through her WorkCover payments and child support payments, save for the first year of cohabitation exceeded the husband’s income receipts in every other year.

7. On 4 June 2007, the parties with a part of their re-financed and extended borrowings of $251,000, jointly purchased a vacant block, this being the Property S property. The purchase price was $130,000 together with associated costs and stamp duty. The block was almost 12 acres in size. On 10 July 2008 the parties borrowed a further $20,000 for a car.  On 23 February 2011 the parties borrowed $48,500 to pay out the existing car loan balance of $17,875, with the remaining $30,625 in funding intended to be applied to commence construction of a home.  No building commenced.  On 13 February 2012 the parties borrowed $74,000 to pay out the then reduced loan of $46,743. The remaining $27,257 borrowed paid out the husband’s credit card of $12,800; purchased a portable dwelling placed on the Property S property (at a cost of $10,300); with the remaining $4,157 applied to connect power and intended to connect a septic system.  Ultimately, the septic system was not connected. 

8. The parties moved from the Property D property in 2012 to the portable dwelling they had placed on the Property S property. The wife thought this would be a temporary dwelling. It was a two-bedroom unit fashioned out of two shipping containers. There was no permit for this dwelling. It was additional to the two large containers already placed by the parties on the Property S property. The contents and ownership of the contents of those additional containers was hotly contested between the parties in the earlier part of these proceedings.

9. Improvements were made to the portable dwelling to bring it up to a living standard. They were completed out of the wife’s income.  Included were a new floor and floor coverings, the lining of walls and interior painting, the building of a deck and the upgrading of bathroom facilities.

10. The husband claimed he completed works at the Property S property. The Court prefers the evidence of the wife as to who performed what work as set out in her exhibit “B 7-1” to her affidavit sworn 25 November 2015. Many of the works carried out required specialist skills and equipment. Both the husband and wife performed some work but for the most part the works were performed by paid third parties. There is no reliable evidence before the Court of the husband’s claim that his input improved the value of the property by up to $20,000, and that claim is rejected.

11. Following separation and in August 2012 the husband cashed in one of his superannuation fund entitlements. In exhibit “S3” to the husband’s affidavit of 21 May 2015 (and also in the wife’s affidavit of 25 November 2015) is a copy of the bank statement for the parties’ joint (omitted) Bank account, showing a deposit of superannuation funds of $13,947.61. The monies were a direct credit from (omitted) Bank into account number (omitted).  There are thereafter some withdrawals which I find were made by the husband, unexplained. The loan repayments for both property mortgages were deducted from that account until 11 April 2013.  These were $149 each week and $423.25 each week.  (omitted) Bank account was closed in April 2013. The husband continued making mortgage repayments in respect of the Property S property from his personal account until June 2013. Thereafter he left the property and the wife resumed occupation.

12. There was no contribution by the husband to the (omitted) Bank loan over the Property D property from December 2012, save some small amount via his superannuation sum and no contribution from him to the Property S property encumbrance from June 2013.  Rates and insurances and the mortgage repayments for both properties were paid by the wife and/or her son Mr S. There were arrears of power, water and general rates when the husband and wife vacated the Property D property and when the husband vacated the Property S property. These were paid by the wife who remained solely in occupation of the Property S property until March 2015.

13. The husband received a further superannuation payment of $1,910 in early 2015, claimed by him on hardship grounds. This sum related to the period of cohabitation. He was at the time living in the home of his now wife earning an income of $432 weekly as a self-employed (occupation omitted). 

14. The husband is now contributing to superannuation, (omitted), in which he has an amount of approximately $769.  He has a (omitted) Toyota valued at approximately $600, household contents of $2,000, claims to owe Mr P $2,000 and has a (omitted) MasterCard debt of $5,412.  He has a (omitted) Bank overdraft of $1,965 and unpaid domestic and trade bills of $8,000.

15. No contributions to a superannuation fund were made by the wife during the period of the cohabitation and marriage.  The wife joined her superannuation fund on (omitted) 1996, some nine years before the commencement of cohabitation. She made contributions to the fund for a large part of those nine years.  Her superannuation benefit statement as at 30 June 2012, being shortly after separation, was $25,308.04.  This sum represented the wife’s pre-cohabitation contributions together with investment earnings.    

16. On 29 August 2015, the (omitted) Bank wrote to the parties in respect of their mortgage account over the Property S property being in arrears in the sum of $968.75.  Neither party was by then living in the property. A notice of demand was subsequently forwarded by the (omitted) Bank to the parties dated 12 September 2015.  The husband made no effort to respond to the bank’s entreaties that the parties place their account out of arrears. Thus to avoid a default notice being issued on 30 October 2015, the wife negotiated an arrangement with the bank to make payment no later than 2 November 2015.  To that end, the wife sold the bronze figurines as valued by Mr R in the sum of $1,600 and paid that amount into the home loan account on Monday, 2 November 2015. The Court notes the chattel sold had yet to be apportioned between the parties but accepts that the actions of the wife were necessary in the circumstances. The wife subsequently notified the husband’s then lawyer, Ms Donoghue of the sale of the bronze figurines and payment into the home loan account number (omitted) to prevent a default notice being issued by the (omitted) Bank. The home loan however remained in arrears, albeit reduced. 

17. Both parties sold livestock following separation and retained the proceeds of such sales. The wife received the sum of $3,992.12 and not the sum of $10,500 as claimed by the husband. The husband received an unknown sum as he failed to provide any evidence as to the proceeds of sale of livestock received by him.

18. The husband claimed to have bought various tools, chattels and other items into the relationship. He claimed to own bluestone on a third party’s property, placed there by him in the years prior to the marriage. This was disputed by the wife, who claimed the husband removed them from the Property S property. The husband failed to call Mr P as a witness. Whilst the Court could reasonably expect the husband to put that evidence before the Court and thus could have made an adverse finding in respect of this against the husband, the totality of the evidence leaves the Court more inclined to make no finding. The husband also claimed to have brought into the marriage a shipping container. He did not do so, in the sense he claimed. This shipping container was paid for by the wife in the circumstances described in the following paragraph.

1. Marked as annexure “B10” to the affidavit of the wife sworn 25 November 2015 is an email from Ms A, the husband’s daughter. Ms A says relevantly in that email correspondence:-

   “Approximately February 2003 I paid 3700 for the above shipping container, colour green, as Mr J did not have the funds to purchase.  I was paid the full sum of 3700 by Ms Banford in approximately October 2003.  Basically I had given Mr J a loan to purchase the container.  He was unable to pay me back, I was leaving Property S and wanted to be paid back. 

   At approximately November 2003 Ms Banford paid me for the above posts and rails for the shed – I did own these in full and was free to sell them.  She paid me $780 for these. 

   In approximately December 2003 I paid Mr J $6000 to set up his (omitted) Hino truck in order to move my furniture and possessions to Queensland.  This was a payment to move to (omitted), not a loan.”

The Property D property

1. The husband was employed in June 2003 at the rate of $25 an hour to make some changes to this property.  The husband had full use of the wife’s Subaru wagon during this time.  The parties were not cohabitating. The husband did not have a vehicle of his own until mid-2005, when the parties purchased the Land Rover while living in (omitted), New South Wales. This vehicle the husband has now retained. Whilst after marriage the husband carried out some further renovation works these were limited. The plastering work was done by Mr A; electricity work by Mr N; and windows were installed by Mr B.  Re-stumping of the property was done in 2006 and the bathroom and laundry renovated in 2007/2008.  The husband was in Melbourne for six weeks at his son, Mr D, when a large portion of the work was done.  The cost of the renovation work was covered by redraw on the home loan, plus a $5,000 loan from Mr S. The husband claimed he performed $9,800 of work. Certainly he did some work but not the quantity he claimed.

2. In January 2013, the parties agreed that Mr S, one of the wife’s sons from her previous marriage, could occupy the Property D property in return for him making the mortgage repayments of $748 a fortnight. The wife made payment of the rates and insurances.  It was envisaged Mr S would purchase the property and that his payment of the mortgage instalments would be in lieu of him paying a deposit. There was no discussion between the parties and Mr S as to the value of the property.  Mr S maintained the mortgage repayments and occupied the property from January 2013. He subsequently purchased it for $175,000, assuming liability in effect for a large part of the parties mortgage. He has little equity in the property.    

3. The net equity available to the parties from the sale of the Property S property was $1,793.36 and from the Property D property $49,948.14.  Victoria Legal Aid placed a caveat over the Property D property when the wife did not qualify for Legal Aid after she married Mr J.  Thus two caveats had to be discharged on sale. The husband seeks the wife pay $1,062.30, being one half of the Titles Office fee and the total amount payable to Victoria Legal Aid. It is a matter the Court takes into account in the totality of matters.

4. The husband paid to remove a quantity of firewood from the Property S property so as to enable its sale.  The cost to remove the quantity of firewood demolition timber was a total of $3,850. Again this is a matter the Court takes into account generally.

5. The mortgage encumbrance owing on the Property D property as at 24 April 2015 was $217,150.14. This represented an increase in encumbrance from the $25,185.90 encumbrance of November 2015 of $191,964.24 over 9 ½ years approximately but included the purchase of the Property S property. The encumbrance exceeded the value of the Property D property. The debt was secured by both the Property D property and the Property S property.  The balance owing on the Property S property on 24 April 2015 was $66,588.15 and on 29 August 2015 $67,177.87.  The Property S property was sold for $170,000.

Consideration

1. The asset pool of the parties at the time of trial was, in the main:-

   a)$51,741.50 plus the interest accruing, being the proceeds of sale of the Property S property held on behalf of the parties in the trust account of the husband’s solicitor;

   b)$20,285 of chattels in the possession of the wife;

   c)$27,062.82 of chattels in the possession of the husband together with a further unknown value of chattels in the possession of the husband.  

   d)Superannuation entitlements:-

   i)Of the wife of $34,117.77 with (omitted) Superannuation;

   ii)Of the Husband of $769.

2. The wife sought at trial that she retain the totality of the monies in trust; those items presently in her possession; and the totality of her superannuation entitlements. The husband sought that the wife’s superannuation entitlements and the monies held in the trust account on behalf of the parties in their totality be divided equally between the parties.  The husband, however, had not sought a splitting order in respect of those superannuation funds.  

3. The overwhelming financial contribution in this marriage has been made by the wife. Her financial position after the marriage’s end was significantly worse. The husband’s was about the same, or marginally improved. The parties other contributions were fairly equal. The wife should retain her superannuation entitlements to which the husband made no contribution. A just and equitable order, in the facts of this case, could not be otherwise. The husband has retained more of the value of the chattels than the wife. His post separation contributions were also significantly less than the wife. There is nothing that favours either party in a consideration of s.75(2) of the Act matters given the current living arrangements of both parties and their income as disclosed.

4. In the exercise of its discretion the Court determines that orders which would be just and equitable as between the parties shall provide for the husband to receive 10 percent of the monies in trust together with interest and the wife 90 percent of such monies together with interest. Otherwise each party shall retain that which they have. Orders shall be made accordingly.

I certify that the preceding fifty four (54) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 1 June 2016