BANFORD & BANFORD

FEDERAL CIRCUIT COURT OF AUSTRALIA

BANFORD & BANFORD

[2015] FCCA 2425

Catchwords:
FAMILY LAW – Property adjustment proceedings – whether post-separation assets should be quarantined – dispute about liabilities accrued following separation – assessment of competing contributions – assessment of relevant future matters.

Legislation:

Family Law Act1975 ss.75(2), 75(2)(k), 75(2)(o), 79(4), 79(4)(a), 79(4)(b), 79(4)(c), 79(4)(d), 79(4)(e), 79(4)(f), 79(4)(g)

Aleksovski v Aleksovski (1996) 20 FamLR 894
Black & Kellner (1992) 15 FamLR 343
C & C (2005) FLC 93-220
Farmer & Bramley (2001) 27 Fam LR 316
In the marriage of Carter (1980) 7 FamLR 41
In the Marriage of Figgins (2002) 29 FamLR 544
In the Marriage of Hickey (2003) 30 Fam LR 355
In the Marriage of Mahon (1982) 8 Fam LN 4
In the Marriage of Neale (1991) 14 Fam LR 861
In the Marriage of V & G (1982) 8 Fam LR 197
In the Marriage of Weir (1992) 16 Fam LR 154
Kowaliw & Kowaliw (1981) 91-092
Robb & Robb (1995) FLC 92-555
Townsend & Townsend (1995) FLC 92-569

Applicant:

MR BANFORD

Respondent:

MS BANFORD

File Number:

DNC 19 of 2015

Judgment of:

Judge Jarrett

Hearing date:

27 August 2015

Date of Last Submission:

27 August 2015

Delivered at:

Darwin

Delivered on:

27 August 2015

REPRESENTATION

Counsel for the Applicant:

Mr Baldry

Solicitors for the Applicant:

Torney Legal Pty Ltd

Solicitor for the Respondent:

Mr Barry

Solicitors for the Respondent:

Darwin Family Law

ORDERS

The Applicant have 30 days from the making of these orders to obtain finance approval to enable him to repay Westpac Loan Nos. (omitted) and (omitted) (“The Loans”).
If the Applicant is able to obtain such finance approval within the 30 day period referred to in order 1 he repay the Loans within 45 days after the date of loan approval.
Within ten days of the date of these orders the parties do all acts and things and sign all documents necessary to list Property W in the Northern Territory of Australia, being (omitted) from plan(s) (omitted) for sale (“the Property W Property”) on the basis that the completion period for any such contract of sale be no shorter than 60 days from the date of the contract of sale being entered into.
For the purposes of order 3, the parties appoint (omitted) real estate agents to act as the selling agent of the Property W Property within seven days of the date of these orders.
The parties shall accept any offer for sale of the Property W Property made by an independent purchaser of or in excess of four hundred and eighty thousand dollars ($480,000).
(omitted) Conveyancing or such other lawyer or conveyancer agreed between the parties be instructed to act on behalf of the Applicant and the Respondent, as vendors, to effect the conveyance for the sale of the Property W Property.
Pursuant to s.106A of the Family Law Act 1975, the Registrar or Deputy Registrar of the Federal Circuit Court of Australia at Darwin be appointed to execute all deeds or instruments and sign all documents and things necessary in relation to the sale of the Property W Property and for or on behalf of the Applicant and/or the Respondent upon presentation to the Registrar of an affidavit as to the request made to the Applicant and/or the Respondent to execute documents and their failure to do so within seven days of presentation to them of the document to sign.
The contract of sale of the Property W Property have a completion date of not before 75 days from the date of the making of these orders.
The proceeds of sale of the Property W Property be applied as follows:
(a)Firstly, in payment of the selling costs including commission marketing expenses and conveyancing fees in respect of the sale;
(b)Secondly, in repayment of Westpac Loan (omitted) in full; and
(c)Thirdly, subject to orders 10 and 11 hereof, to the Respondent.
If the sale price of the Contract of sale of the Property W Property is less than $480,000 the Applicant pay the Respondent 40% of the amount which such price is less than $480,000 and the Respondent keep the balance of such proceeds of sale.
If the sale price of the Contract of Sale of the Property W Property is more than $480,000 the Applicant be paid 40% of the amount which such price is more than $480,000 and the Respondent keep the balance of such proceeds of sale.
If the Applicant is unable to obtain finance approval in the 30 day period referred to in order 1 the property known as Property M in the Northern Territory of Australia, being (omitted) from plan(s) (omitted) (the “Property M Property”) be listed for sale by the Applicant within 10 days after the expiration of such 30 day period.
The Applicant appoint a real estate agent to act as the selling agent of the Property M Property within the 10 day period referred to in order 12 hereof.
The Applicant shall accept any offer for the sale of the Property M Property made by an independent purchaser of or in excess of five hundred and seventy thousand dollars ($570,000).
(omitted) Conveyancing or such other lawyer or conveyancer agreed between the parties be instructed to act as the conveyancers acting on behalf of the Applicant, as vendor, to effect the conveyance for the sale of the Property M Property.
Pursuant to s.106A of the Family Law Act 1975, the Registrar or Deputy Registrar of the Federal Circuit Court of Australia at Darwin be appointed to execute all deeds or instruments and sign all documents and things necessary in relation to the sale of the Property M Property and for or on behalf of the Applicant upon presentation to the Registrar of an affidavit as to the request made to the Applicant to execute documents and his failure to do so within seven days of presentation to them [sic him] of the document to sign.
Upon finalization of the sale of the Property M Property the proceeds of sale be distributed as follows:
(a)Firstly, in payment of the selling costs including commission marketing expenses and conveyancing fees in respect of the sale;
(b)Secondly, in repayment of Westpac Loan (omitted) and (omitted); and
(c)Thirdly, subject to order numbers 18 and 19 hereof, to the Applicant.
If the sale price of the contract of sale of the Property M Property is less than $570,000 the Respondent pay the Applicant 40% of the amount which such price is less than $570,000 and the Applicant keep the balance of such proceeds of sale.
If the sale price of the contract of sale of the Property M Property is more than $570,000 the Respondent receive 60% of the amount which such price is more than $570,000 and the Applicant keep the balance of such proceeds of sale.
There be a declaration that the personalty in the Applicant husband’s possession as at the date hereof be retained by him.
There be a declaration that the personalty in the Respondent wife’s possession as at the date hereof be retained by her.
Until the property at Property M is sold the Applicant husband shall continue to make mortgage payments for the property as they fall due.
Until the property at Property W is sold the Applicant husband and the Respondent wife shall continue to make mortgage payments for the property as they fall due, with each party to pay 50% of the payments as they fall due.
The Applicant husband pay the Respondent wife $21,788.40 within 30 days of the date of these orders.
The Applicant pay the Respondent’s costs of and incidental to these proceedings assessed as being in the sum of $8,119 within 30 days of the date of these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 19 of 2015

MR BANFORD

Applicant

And

MS BANFORD

Respondent

REASONS FOR JUDGMENT

Ex tempore

Mr Banford and Ms Banford commenced a relationship in 1988. They married in (omitted), 1990. However, their marriage relationship has now come to an end. They are in disagreement about when it ended. Mr Banford contends that they separated in late 2011 or early 2012. Ms Banford says that it was in May, 2014 but, subject to some observations that I will make later in these reasons, nothing turns upon the actual date of separation.
Mr Banford contends, by his outline of case document delivered a day or so before the hearing, that certain property that he claims to have received after separation should not be part of the, “marital asset pool”. The balance of the property, he says, including the parties’ superannuation, should be divided 55 per cent to him and 45 per cent to Ms Banford. The practical effect of the orders sought by him is that he will receive almost two thirds of the entirety of the parties’ property, including superannuation.
In closing submissions he departed from the orders that he seeks in his outline of case document so that he now contends, it seems, that the property that was identified in the course of the submissions, which includes property acquired by him post-separation, should be divided 52.5 per cent to Ms Banford and 47.5 per cent to him.
Ms Banford seeks the orders set out in her case outline filed on 21 August, 2015. She seeks orders that would see the sale of all of the parties’ real property and “the property of the relationship” divided 70 per cent to her and 30 per cent to Mr Banford. But the form of the orders sought by Ms Banford is problematical. The Court would not, should not and, in my view, could not make an order in the terms that the wife seeks, particularly paragraph 1 of the orders set out in her outline of case document.
This case is plagued by a school of red herrings and a failure by the parties to understand the approach that the Court, as a matter of law, must adopt to the determination of the outcome in these proceedings. The first red herring – and perhaps the leader of the school – is the contest that seems to have occupied so much of the parties’ time, energy and, no doubt, money in this case about the date of separation. The precise date of separation can be critical in some cases. In most cases it is not. This is one of those cases where it is not.
The potential relevance of the date of separation might have been to matters raised for consideration by s.75(2)(k) of the Family Law Act1975, but it was not suggested that the duration of the parties’ marriage and the extent to which it has affected the earning capacity of Ms Banford was in any way important. As I apprehend the evidence and the submissions made by the parties in their case outlines, the perceived significance of the date of separation lay in the fact that certain property had come into the hands of the husband after the time when he said the parties had separated, or had long been separated.
The husband early on in these proceedings, it seems, offered the bait and the wife and her lawyers took it and the fight over the date of separation was on. The parties enlisted the help of their friends – or some of them – for the unseemly tussle about who was asserting the truth when it came to when the parties separated. And, having regard to the outlines and some of the argument before me, the argument about the date of separation was undertaken almost for its own sake. But in the end… no, even at the very beginning of this case, none of that mattered.
The second red herring that is raised in the proceedings is really a fry of the first. It is the connection that Mr Banford wishes to make between the contributions made by the parties to the acquisition, conservation and improvement of their property and the contributions made by them to the welfare of their family and whether the parties were separated or not when those contributions were made. But it is the contributions which are relevant. See ss.79(4)(a), (b) and (c) of the Family Law Act. A focus on the date of separation is apt to distract from those matters, as it did in this case.
There is precious little evidence about the nature and extent of the parties’ contributions to the acquisition, conservation and improvement of their property and to their family. What little evidence there is, is generally not the subject of dispute. Indeed – and perhaps unusually – despite all of the other vitriol in this case between the parties, the wife was given to say good things about the husband in his role as a parent of the parties’ children and the husband was able to say the same about the wife.
When contributions are made during the course of a relationship are often of no particular moment, although there are circumstances when the timing of the contribution is of interest because it may affect the weight to be given to it having regard to the property of the parties at the time of the hearing. But often the timing of the contribution is neither here nor there. Indeed, contributions made after separation can attract just as much weight as contributions made before separation even where the pre-separation contributions are financial contributions and the post-separation contributions are of a non-financial nature such as contributions to the welfare of the children of a family. It is not unheard of for one party to a marriage that has ended to continue to provide contributions to the welfare of the other in non-financial ways even after separation. The connection that Mr Banford wished me to draw between his alleged date of separation and the significance to be attached to the property he received post separation is the second red herring.
The third fish in the school is the notion that seems to underlie the declarations sought by the husband in his case outline to the effect that because certain of the property in this case was received after separation, it should be “excluded” from consideration or from inclusion in the “marital asset pool”.
That proposition is, in my view, heresy. The Court’s task, as one of the first steps in an application for property adjustment orders pursuant to s.79 of the Act is to identify the parties’ assets and liabilities, not their “matrimonial assets,” or “matrimonial debts” – not just the property that existed as at the date of separation, not just the property owned jointly by them or the debts owed jointly by them, but all of their assets and liabilities.
The proposition is not new. In In the marriage of Carter (1980) 7 FamLR 41 at page 45 the Full Court, consisting of Chief Justice Evatt, Emery SJ and Lindenmayer J said this:
With the greatest respect, we find it difficult to understand with precision his Honour’s method of approach as expressed in his judgment. He first, it would appear, determined what were the, “matrimonial assets,” excluding some others, but then said at page 18 of the appeal book, “It is then necessary to consider what alterations should be made in the property of the parties.” It would appear that his Honour may have approached section 79 by way of section 78. While this is certainly one method of approach it is, in our view, one that tends to complexity and clouds the issues. It has led, firstly, to the introduction of the term, “matrimonial assets,” and secondly, to the apparent exclusion of some assets of the parties from consideration. The term, “matrimonial assets,” is not a concept known to our law. It does have a particular significance under the English legislation, but that involves a quite different approach from that set out in section 79. With respect, it is, in our judgment, that this expression – even if defined – should not be used. Section 79 is not concerned with matrimonial property. It is, as set out in subsection (1), concerned with, “Proceedings with respect to the property of the parties to a marriage or either of them.” The preferable approach then is to determine what property is owned by the parties – jointly or individually – and then, after considering the matters set out in subsections (2) and (4) of section 79, to make a determination as to what alteration (if any) of the interests of the parties in those assets must be made in order to do financial justice between them.
There have been many cases since to the same effect including In the Marriage ofFarmer & Bramley (2001) 27 Fam LR 316, In the Marriage of Figgins (2002) 29 FamLR 544, In the Marriage of Hickey (2003) 30 Fam LR 355, In the Marriage of Mahon (1982) 8 Fam LN 4, In the Marriage of Neale (1991) 14 Fam LR 861, In the Marriage of V & G (1982) 8 Fam LR 197 and then finally, In the marriage of Hickey (2001) 30 FamLR 355.
In the last case the Full Court, consisting of Chief Justice Nicholson and Ellis and Coleman JJ said this at paragraph 40:
Section 79, unlike section 78, requires the Court to consider the whole of the property of the parties however and whenever acquired, notwithstanding that the parties may only seek an alteration of interests in some of that property. As a consequence of the first step in the preferred approach to the determination of section 79 proceedings each party to the proceedings has an obligation to make full and frank disclosure of his/her financial circumstances and all matters relevant thereto.
More about nondisclosure later, but for present purposes nothing that was said in Carter or in Hickey is inconsistent with what was said in Stanford. In fact, it is consistent with what falls from the High Court in Stanford and so the heresy, which I have identified as the third of the red herrings in this case and which seems to underpin the declarations and orders that the husband sought in his case outline document, is exposed and should not be countenanced.
Even more fundamentally, the husband’s position is untenable because, even on his own case, the property in respect of which he seeks declarations – the payment to him of $150,000 by way of a worker’s compensation claim – no longer exists. It has been converted into other property. He seeks declarations in respect of some of that other property, but that property is available for division between the parties in this process.
There are some more fish in the school, but I will deal with those fish later in these reasons.
Neither party suggests here that it is not just and equitable to make some property adjustment orders. The parties’ relationship has broken down. Their joint efforts have come to an end and having regard to the findings I will soon make about the parties property, in terms of Stanford it is clear that it is appropriate under s.79(2) that there be some property adjustment orders.
To determine what orders ought to be made, a four step process is generally adopted. The first step is to identify the parties’ assets, liabilities and financial resources. The second is to assess their contributions to those things by reason of ss.79(4)(a), (b) and (c) of the Act. Then, after fixing on the parties’ contribution based entitlement, the third step is to make an adjustment, if any is warranted, having regard to the matters set out in ss.79(4)(d), (e), (f) and (g). Then, once the Court has determined the division of property between the parties, the Court needs to fix on orders which are just and equitable so as to effect that division.
So, to the first step in the process: my associate will hand to you now a table.
I find that the assets, liabilities and financial resources of the parties are as follows:

Assets:	Property W	$480,000.00
Property M	$570,000.00
Motor Vehicles	Holden (omitted)	$1,500.00
Mazda (omitted)	$2,000.00
Landcruiser (omitted)	$8,000.00
(omitted) Isuzu truck	$26,500.00
Motor Bikes	Harley Davidson Motorcycle	$20,000.00
Other Assets:	Race Boat	$15,000.00
Loans to friends (H)	$20,000.00
Shed components	$19,780.00
Spa (H)	$1,200.00
Household contents (W)	$1,000.00
Household contents in Aust and (country omitted) (H)	$2,000.00	$1,166,980.00
Add backs:	Legal Fees (H)
Liabilities:	Mortgage of Property W	$217,000.00
Mortgage of Property M	$550,000.00	$767,000.00
Superannuation:	Wife	$12,700.00
Husband	$90,634.00	$103,334.00
Total Nett non-super assets	$399,980.00
Total assets	$503,314.00

The table indicates who owns each of the items of property or whether they are jointly owned. The only exception to that is the Holden (omitted). I can make no determination about who is the owner in law or in equity of that vehicle.
Some other observations need to be made about the assets and liabilities. I have included the wife’s contents at $1000. There is no evidence about that and there was dispute about how much her contents were worth. It is a minor amount, but I have treated the wife’s statement of $1000 as a statement against interest.
The household contents in Australia and (country omitted) of the husband I have included at $2000. Arguably, that might be $4000, but very little evidence was directed to it, and I have partly relied on what is in the husband’s case outline as a statement against interest. But having said that, I have only included 2000, not 4000.
I have not included the husband’s credit card debt or the loan from his father as a liability which ought to be brought to account in the asset and liability table. I have not done that for two reasons: first, there is no explanation as to the accrual of the credit card debt. The lack of explanation is important given the husband’s evidence about the amount of money that he has received of recent times; his most recent affidavit attests to that. Given the amounts that he has spent from the receipts by him and the way in which he has spent it, one would have thought that if there was a proper explanation for the accrual of such a debt, it would have appeared in that affidavit, given that it deals with his receipts and expenditure. Second, I have not included the husband’s loan to his father for legal fees, because they are for legal fees.
I turn then to the second part of the process: contributions. Some observations need to be made. First, neither party contends that I should adopt the preferred approach talked about by the Full Court of the Family Court of Australia in Hickey’s case and C & C (2005) FLC 93-220, that there should be a two-pools approach: there should be non-superannuation assets in one pool and superannuation assets in the other pool. Perhaps the two-pools approach was eschewed because there is, in effect, no evidence upon which I could make the relevant assessments in respect of the superannuation pool. There is just no evidence which would allow me to undertake the enquiries that section 79(4)(a) and (b) require me to make in respect of the superannuation pool of assets. Both parties seem to have been content to approach the matter on the basis of one pool, subject to the husband’s exclusions about which I have already made some remarks, and so in deference to the way in which the parties have approached the case, I will approach it on a one-pool basis as well.
As I remarked earlier, there is precious little evidence that deals with contributions in any meaningful way in this case, but what evidence there is, reveals that not very much was in dispute. Initially, when the parties commenced their relationship in 1998, the wife had some property that she had inherited. The husband had little by way of property. He had some tools – there is an argument about whether he had a boat, but there is no evidence about what the boat might have been worth in any event – a motor vehicle and some other things, but no reliable values are given for any of those assets.
The asset that the wife bought to the relationship was sold soon after the parties commenced their relationship and it realised, it seems, about $100,000. The parties invested at least some of that – on the evidence, about $70,000 of that – in a property at (omitted). It seems that the balance was spent on improving that property by building a home on it. The wife also says that some of the money was spent on living expenses.
During the course of the relationship, the parties bought and sold other real property. The husband worked in well-paid employment. He is a (omitted) by occupation. And there seems to be no contention that he worked hard during the course of the relationship.
The parties established their own (omitted) business. They worked in it together: the wife doing the books; the husband doing the physical work. It was not as successful as the parties had hoped and it came to an end in about 2004. But the parties jointly put in to that endeavour.
The husband then went off to work on a fly-in-fly-out basis both domestically and internationally and, as I say earlier, worked hard and earned a good income. In the meantime, the wife, essentially, was a homemaker. The parties have two children: one is now 24; the other is 22. She looked after them from their respective births. According to the husband, she did a good job. And according to the wife, the husband provided well for the family.
Following separation, whenever that may have been, the parties continued to contribute. They continued to contribute to the conservation of their assets as they existed at that time; the property that they had purchased but which is in Mr Banford’s name at Property M and the parties’ jointly owned real property at Property W. They made mortgage repayments. The husband made half of them; the wife made some others. They continued to contribute to the welfare of their family. The wife has continued to care for the parties’ children and one of them in particular albeit that they are both now adults.
Mr Banford has provided for Ms Banford’s welfare following separation. There is evidence in the wife’s material which, if not indicative of the parties still being in a relationship, is certainly indicative of benefits being provided one to the other in a filial sense. I take those matters into consideration.
Both parties submitted that I should find that the contributions of the parties to the acquisition, conservation, and improvement of their property as at the date of the trial were equal. That is, in my view, a fair assessment and an appropriate concession by each of them.
I should mention a matter raised by me in the course of argument, but not raised by the parties. And that is what lawyers have come to describe as a Robb & Robb contribution.
Robb & Robb (1995) FLC 92-555 is a decision of the Full Court of the Family Court of Australia that makes clear that it is necessary to give consideration to and recognition of contributions made by parties where those parties provide emotionally and financially for the care and welfare of children bought to that relationship by the other party to it even though the first party has no legal or moral obligation to care for them. That is a factor here, because when the parties commenced their relationship the wife had a child from a previous relationship, and in her affidavit material she is very candid in saying that the husband was a good father to that child.
So apart from their own children, there is the husband’s contributions in the Robb & Robb sense to the wife’s child of a previous relationship. The husband, too, had two daughters from an earlier relationship. They did not come with him to the relationship in the sense that the wife’s son did, but they were with the parties each alternate weekend and half of the school holidays, as I understand it. The wife made a contribution to them. I take that into account.
I should also say I take those matters into account now in the contribution-based assessment. There is a debate in the cases about whether this type of contributions should be taken into account under s.79(4)(c) or s.75(2)(o). Some cases deal with it as a contribution matter under s.79(4)(c). Others deal with it under s.75(2)(o), that is, in the third step of the process. My preference is to deal with it as a contribution matter, because it has happened in the past, and it is, by its nature a contribution.
Having said all of those things, I am still of the view that the parties’ contribution assessment should remain equal. They have contributed, in my view, equally to the acquisition, conservation, and improvement of their property as it exists today. On that basis, each of the parties would be entitled to $251,657.
To the third step of the process, then. I am required to consider the matters under s.79(4)(d), (e), (f), and (g). Neither of the parties submitted that any of those matters are relevant save for s.75(4)(e) which calls up s.75(2) of the Act. No party here suggested that issues of child support were important. No party here suggested that the orders that I might make might have an impact on the income earning capacity of the parties.
And so it is to s.75(2) that I now look. Mr Banford is 55 years of age; Ms Banford is 51. Mr Banford claims that his health is not as good as it could be. He says that he has a neck and shoulder injury; the shoulder injury now being the more predominant injury. There seems to be no doubt that he injured himself at work a few years ago. That led him to be on worker’s compensation. The worker’s compensation weekly payments came to an end earlier this year, and he received a lump-sum payment of $150,000 to finalise his case.
This is not a case like Aleksovski v Aleksovski (1996) 20 FamLR 894. I cannot make a determination about which parts of the lump-sum payment received by Mr Banford were due to what components of what might otherwise be seen as a common law damages award. It is a lump-sum payment in satisfaction of all of his claims.
Nonetheless, the husband received that money and it tends to suggest that, indeed, there is a problem with his ability to continue in his former employment. He described in the witness box his limitations. He sets them out in his affidavit. However, his case is woefully inadequate, because there is no medical evidence that supports his case. But nonetheless, it does not seem to be seriously in contention that he suffered some injury. I am satisfied – although perhaps by the barest of margins – that most probably he will not be able to return to his former occupation as a (occupation omitted). That is not to say that he is not chasing work.
He has demonstrated himself to be resourceful. He purchased a truck using some of his money with a view to attempting to commence a (omitted) business. It has not been as successful as he had hoped and he now tells me in his affidavit that he is going to sell the truck and perhaps apply for work as a (occupation omitted) or a (occupation omitted). Whatever the case might be, the husband has demonstrated himself over the course of this relationship to be hard-working, resourceful, and committed. There is no reason to think that he will not continue to be so. I find that his likely earning capacity is in the range of $60,000 to $70,000 per annum gross.
The wife has worked since separation. She has worked at (employer omitted) and presently works as a (omitted). On the evidence, she earns about $37,000 gross per annum. There is no reason to think that:
a)she can earn any more than that; or
b)she is not likely to continue to earn that in the future.
She has no other qualifications and although it was not put to me in these terms, she was by and large out of the workforce during the course of the relationship. Her age may militate against her changing her occupation now.
The husband has some debts. I have already referred to the credit card liability. I take that into account, as I am required to under s.75(2) and he will have a liability to his father for legal fees.
The husband in his submissions conceded that an adjustment under s.75(2) is necessary in favour of the wife. It was suggested that 2.5 per cent was appropriate. The wife suggested that an adjustment of 20 per cent was appropriate. That was informed not just by the matters to which I have just referred but also by reference to s.75(2)(o) and the cases of Black & Kellner (1992) 15 FamLR 343 and In the Marriage of Weir (1992) 16 Fam LR 154.
Essentially, what was put was that because the husband had been so dilatory in his disclosure in this case, his financial disclosure, that one should not be confident that he has made proper disclosure at all, and the Court was otherwise entitled to take a broad-brush approach to the assessment of contributions and 75(2) matters. I am not satisfied that the husband has not properly disclosed. I am satisfied that his disclosure was tardy, very tardy, inexcusably tardy, appallingly tardy.
It was always the case that he would have to provide an explanation for the expenditure of the money received by him as a lump sum, notwithstanding his position, ill-informed as it was, that that receipt might be quarantined in this case. He was nonetheless obliged to provide an explanation for it and his explanation for the delay in providing that explanation is unacceptable. I do not accept that, just because a couple of documents came in most recently, it was appropriate to hold up all of his disclosure about that until the delivery of a rather large affidavit a day before the trial. It is not an adequate or acceptable explanation. But there is a difference between being late and not disclosing at all and I am satisfied that he has disclosed.
Should there be an adjustment by reason of that? I am not satisfied that there should. True it is that, had the husband not made some of the expenditure that he made, there might be a larger amount available for distribution between the parties. But as the parties’ lawyers in this case seem to acknowledge, the days of add-backs are gone – in most senses, anyway – and, having provided an explanation for the expenditure of the relevant funds, the Court is left in no doubt as to where the money has gone. There is a shortfall in the explanation of about $14,000 but, as counsel for the husband said, he cannot be expected to remember every little piece of expenditure that he has made, even though it only occurred this year.
Of course, the same might be said about the wife, which leads me to another fish in the school: what was described in submissions to me in the course of the case as credit, the wife’s credit. The husband sought to make out a case of waste against the wife. He suggested that funds that were made available to her that the parties wished to spend on the construction of a shed or sheds, $98,000, and that had come into the wife’s hands had been depleted by her on frivolous and wanton expenditure, and perhaps expenditure on drug use.
Two observations need to be made about this herring and they are these: first, even if the wife’s credit was impugned – and it was not – there is no other evidence in the case that would permit the Court to reach a finding that the wife’s expenditure of that money was, within Kowaliw & Kowaliw (1981) 91-092 or Townsend & Townsend (1995) FLC 92-569 wanton, reckless or negligent and so attract some action on the part of the Court.
It is one thing to assert a position. It is another to have the evidence to prove it and to ask a witness about all sorts of things in the witness box in circumstances where her credit was not in issue in the hope that she by her answers might put it in issue herself, is really an abuse of the process. Rather than impugning the wife’s credit, the questions asked by counsel for Mr Banford bolstered it. She showed herself to be a woman who was more than prepared to make concessions where concessions were appropriate. She was not willing to engage in obfuscation and did not attempt to hide what must have been embarrassing details for her. As I say, in my view, it bolstered her credit.
Second, the very submission that was made on behalf of the husband about his failure to account for all of his expenditure can be said about the wife, except even more so. Her inability to provide explanations for withdrawals from ATMs of 100 or 200 dollars at a time in 2008 is hardly remarkable. Yet considerable time in cross-examination was taken up with questions about ATM withdrawals many years ago involving small amounts of money. As I say, no other evidence which would suggest that the wife’s expenditure was wanton, reckless or negligent was placed before me.
I am satisfied that the matters that I have identified as relevant in this case by reason of s.75(2) demand an adjustment in favour of the wife of 10 per cent. That is an adjustment of, in this property pool, about $50,000. That is less than the difference between what the husband would earn in two years, compared with what the wife would earn.
Accordingly, on the figures as I have found them, the wife is entitled to $301,988.40 and the husband is entitled to $201,325.60. The wife presently has in her possession the equity in the Property W property – I will turn to that shortly – the Mazda, her household contents and the Holden (omitted), which I understand is in her possession. She has superannuation. Her total assets, therefore, total $280,200.
The husband has the equity in the Property M property which, on the evidence, is not very much. The other assets to which I have earlier referred – the LandCruiser, the Isuzu truck, the motorcycle, the boat, his loans to his friends, the shed components, the spa and his contents and his superannuation. He has assets totalling $223,114. To give the wife her entitlement, the husband will have to pay to the wife, if she was to keep the Property W property and finance that herself and the husband kept the Property M property and financed that himself, $21,788.40.
The evidence in this case does not inform me about the parties’ borrowing capacity. The orders sought by the wife seek that both parcels of real property be sold and then, after appropriate adjustments, the property divided 70/30 in her favour. Because the evidence does not inform me of this, it is difficult to make an order that the wife retain the Property W property and the husband transfer his interest to her in that, subject to her refinancing it in her own name, and the husband retaining the Property M property, subject to him refinancing that in his own name.
If that was to happen, then all else that would have to happen is for the husband to pay to the wife $21,788.40, which I am satisfied he could do. But because there is no evidence about those things, it seems to me necessary to perhaps make an order for the Property W property to be sold and the Property M property to be sold and the net proceeds then divided between the parties, having regard to what they have remaining.
I do not intend to make any superannuation splitting orders. I do not intend to make a superannuation splitting order for this reason: the husband will continue to work and continue to earn at almost twice the rate as the wife. She has a present greater need for cash than he does, and to provide some of her entitlement by way of a superannuation splitting order would be to deprive her of cash that she needs.
Finally, in the husband’s case outline document, he sets out orders that he seeks with respect to specific items of property that are set out in paragraph 29 of his orders. But there is no evidence and no submissions which would support the making of any of those orders, and I decline to make them.
The parties will retain whatever possessions happen to be with them today. In the circumstances, I propose now to stand down. The parties through their lawyers can talk about the form of order that needs to be made. It may be that they can agree on a form of order which might permit one or other of the parties to retain one or other of the properties with a sufficient period built in for finance applications to be made and approved and, in default, sales of the properties to occur.
It might also be that, notwithstanding the comments I have made about the superannuation splitting order, the best way to accommodate the payment to the wife, all other things being equal, is by way of a superannuation splitting order of a modest sum. But they are matters that I suspect have not taxed the parties before today, and so I will give them the opportunity to speak with each other via their lawyers with a view to determining whether agreed orders can be made that give effect to the reasons that I have just delivered.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 24 August, 2015.

Date: 8 September 2015

[2015] FCCA 2425

27 August 2015

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