BEADONS & WAITES
[2020] FCCA 275
•14 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEADONS & WAITES | [2020] FCCA 275 |
| Catchwords: FAMILY LAW – De facto property settlement – where both parties are self-represented – where the evidence is chaotic – where it is almost impossible to decipher contributions. |
| Legislation: Evidence Act 1995 (Cth), s.140 Family Law Act 1975 (Cth), ss.79, 90SM, 90SF |
| Cases cited: Bevan & Bevan [2013] FamCAFC |
| Applicant: | MS BEADONS |
| Respondent: | MR WAITES |
| File Number: | MLC 1527 of 2018 |
| Judgment of: | Judge Small |
| Hearing dates: | 23-24 May 2019 |
| Date of Last Submission: | 24 May 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 14 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Beadons in person |
| Solicitors for the Applicant: | None |
| Counsel for the Respondent: | Mr Waites in person |
| Solicitors for the Respondent: | None |
ORDERS
Within 60 days of the date of these Orders, (“the due date”) the Respondent shall:
(a)pay to the Applicant the sum of $36,670.72 (“the payment”);
(b)pay to Mr Beadons and Ms A Beadons, the Applicant’s parents, the sum of $4,200.00; and
(c)discharge the debt to Region B Council arising from rates arrears on the property known as and situated at C Street, Suburb D in the State of New South Wales (“the Suburb D property”).
Contemporaneously with the payment, the Applicant shall:
(a)do all such acts and things and sign all such documents as may be necessary to transfer to the Respondent, at the expense of the Respondent, all her right title and interest in the Suburb D property;
(b)pay to her parents, Mr Beadons and Ms A Beadons, the sum of $2,800.00.
In the event that the payment is not made by the due date, the Applicant shall immediately do all such acts and things and sign all such documents as might be necessary to place the Suburb D property on the market for sale by public auction with a real estate agent familiar with properties in the Suburb D area (“the sale”), and upon settlement of the sale, the proceeds shall be disbursed as follows:
(a) First, to pay all the costs and commissions of the sale;
(b)Second, to pay to the Applicant either;
(i)the sum of $36,670.72 plus interest at the rate of ten per cent (10%) per annum from the due date to the date of payment; or
(ii)the sum that results in an overall division of the parties’ property in the proportions 40% to the Applicant and 60% to the Respondent;
whichever is the higher amount.
The Applicant shall retain for her own use and benefit absolutely and to the exclusion of the Respondent:
(a)Her Motor Vehicle 1;
(b)Her household and personal effects; and
(c)The monies held in the trust account of Aughterson’s Lawyers on behalf of the parties;
The Respondent shall retain for his own use and benefit absolutely and to the exclusion of the Applicant:
(a)His Motor Vehicle 2;
(b)The unregistered Motor Vehicle 3;
(c)The unregistered Motor Vehicle 4; and
(d)His household and personal effects.
Unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these any subsequent Orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders;
(b)monies standing to the credit of the parties in any joint bank account shall be deemed the property of the Applicant;
(c)insurance policies remain the sole property of the owner named thereon;
(d)each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
(e)each party forgoes any claim they may have to any inheritances or superannuation payments to which the other party is entitled either presently or in the future; and
(f)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
IT IS NOTED that publication of this judgment under the pseudonym Beadons & Waites is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 1527 of 2018
| MS BEADONS |
Applicant
And
| MR WAITES |
Respondent
REASONS FOR JUDGMENT
Introduction
These are de facto property proceedings arising from the breakdown in the relationship between Ms Beadons (“Ms Beadons” or “the Applicant”) and Mr Waites (“Mr Waites” or “the Respondent”).
At trial, Ms Beadons sought the following orders:
a)that Mr Waites remove the Caveat he had placed over the real property located at J Street, Town G, in the State of Victoria (“the J Street, Town G property”), and that the J Street, Town G property be sold;
b)that the property at Suburb D in the State of New South Wales (“the Suburb D property”) be sold;
c)that the proceeds of sale of both properties be applied as follows:
i)First to pay all costs, commissions and expenses of the sales;
ii)Second to discharge the National Australia Bank Mortgage Account No: …99;
iii)Third to discharge any and all other encumbrances affecting the Title of both properties;
iv)Fourth to discharge the following liabilities:
(i)to E Finance for the purchase of Motor Vehicle 4;
(ii)to ANZ credit card for conjoined debt/living expenses;
(iii)to CBA credit card for conjoined debt/living expenses;
(iv)to Mr Beadons & Ms A Beadons for payment of a debt of the parties incurred after they failed to complete a property purchase during the relationship; and
(v)to Mr Beadons & Ms A Beadons for repayment of a loan used to purchase the property located at F Street, Town G, Victoria (“the F Street, Town G property”).
Further, Ms Beadons wanted Mr Waites to be solely liable for a debt to Region B Council in relation to arrears of rates (including interest and penalties) owing on the Suburb D property, which were incurred during his previous relationship with Ms H (“Ms H”).
Mr Waites sought Orders for:
a)the surplus funds from the sale of the F Street, Town G property, held in Ms Beadons’ bank account, to be immediately applied to reduce the NAB mortgage over the J Street, Town G property;
b)rent paid to the Applicant by the tenant of the Suburb D property in the sum of $15,600 to be paid to his mother, Ms Waites (“Ms Waites”);
c)the J Street, Town G property to be sold for an amount not less than $100,00.00, and:
i)that the Respondent and the Applicant be at liberty to purchase the property.
ii)that if the property has not been purchased within the 8 weeks by the Respondent or the Applicant, that the Applicant engage a local real estate agent and sell the property;
d)the proceeds of sale from the J Street, Town G property to be applied to finalise debts as follows:
i)$41,300.00 to repay what he says is a joint debt owed to his mother Ms Waites (“Ms Waites”)
ii)$18,000.00 to the Applicant’s parents for monies loaned to the parties;
iii)$22,583.44 to “pay out the Suburb D property”
iv)$9,058.28 to the Respondent
v)$9,058.28 to the Applicant;
e)the Suburb D property to be transferred to Ms Waites.
f)the Respondent to pay out the debt attached to the Applicant’s car in the amount of $13,000 to E Finance and that the car be transferred to the Respondent.
g)the Applicant to pay out the debts to her credit cards in the amount of $13,000.00;
h)Any personal property of the Respondent held by the Applicant or her servants and agents, be returned to him.
The issues to be decided in this matter, are, as in any property dispute:
a)Is it just and equitable to alter the parties’ property interests?
b)If it is just and equitable, what are the property interests of the parties and what is their value?
c)What were the parties’ contributions to the property?
d)Should there be an adjustment to the contribution-based entitlements of the parties after a consideration of the matters set out in s.90SF(3) of the Family Law Act 1975 (Cth) (“the Act”)?
e)In light of the above findings, what Orders should be made to effect a just and equitable division of property between the parties?
Background
Ms Beadons was born in 1971 and was therefore 48 years old at the time of trial. She was then employed full-time as an administration assistant.
Mr Waites was born in 1975 and was therefore 44 years old at the time of trial. He was then unemployed and receiving Centrelink benefits while caring for his ageing and ill father, although he told the Court his occupation was “renovating properties” when asked at trial.
The parties commenced a relationship in 2014 when the Applicant was living in Canberra and employed on a full-time basis. The Respondent lived at the Suburb D property, and was unemployed at the time.
The parties initially lived together in Canberra for 5 months before moving to the Suburb D property.
During the relationship, the parties bought two properties in Town G Victoria and signed a contract for a third, although the third purchase was not completed, which resulted in the parties incurring a substantial rescission penalty, which was later settled by the Applicant’s father for $23,000. It was agreed between the parties that the Applicant’s father would be reimbursed that sum from the sale proceeds of the J Street, Town G property.
The two properties purchased were the J Street, Town G property, which was and remains a vacant block of land, and the F Street, Town G property which the parties purchased and lived in while renovating, although it became clear that the F Street, Town G renovations were not completed by the parties and the property was in a less than comfortable state when sold pursuant to a Court Order in April 2018. Once all costs and commissions of the sale, the mortgage loan and various other costs were paid, the Applicant received the sum of $7,413.56 which she deposited in her bank account with the National Australia Bank.
It was her evidence at trial that she had used those monies to pay down some of the parties’ joint debt.
All real property of the parties was registered in the name of the Applicant, the Suburb D property having been transferred first from the name of Ms H, the Respondent’s previous partner, to that of his mother, Ms Waites, in mid-2015, before being registered in the name of the Applicant on 29 March 2016.
When the parties purchased the F Street, Town G property, in addition to the mortgage secured over that property, an $83,000 equity loan, secured by mortgage over the Suburb D property, was also obtained to meet the purchase price. $53,000 was paid towards the equity loan from the proceeds of sale of the F Street, Town G property, leaving a $30,000 debt. There were two subsequent payments of $100 each made towards the equity loan so that at trial, the balance of the debt was $29,800.
The parties lived in the F Street, Town G property until late June 2017, when the Respondent was escorted from the premises by Victoria Police under a Family Violence Safety Notice which was then superseded by a Family Violence Intervention Order.
The parties formally separated on 30 June 2017.
There were no children of the relationship.
Ms Beadons filed her Initiating Application on 14 February 2018.
Mr Waites filed his Response on 12 April 2018.
After several interim hearings, the Final Hearing of the matter commenced on 23 May 2019 and ran for 2 days.
Witnesses at trial included the Applicant, the Respondent, and Ms H, the Respondent’s former partner, who gave evidence for the Applicant. All witnesses underwent cross-examination.
Mr Beadons, the Applicant’s father, filed an Affidavit in support of his daughter in relation to monies he and his wife had advanced to the parties during the relationship, but the Respondent essentially accepted that evidence, and Mr Beadons was not required for cross-examination.
Following the conclusion of evidence, submissions, and the making of Interim Orders, I reserved my decision.
Issues and Evidence
It is not possible to refer to every fact and/or matter raised in the two-day trial of these proceedings and nor is it necessary to do so. The parties should understand that I have had regard to the whole of the evidence, including my notes and the transcript of the trial on both days that it ran, and if I have not referred to a particular fact or matter it does not mean that I have not considered it.
Both parties were self-represented at trial, although Ms Beadons had been represented until one week before the second interim hearing on 16 May 2018.
The consequence of that situation is that the Affidavit material filed by each party in person is chaotic, entirely lacking in compliance with or having regard to the Federal Circuit Court Rules 2001, and in some parts, completely incomprehensible. As I said the parties at trial, it is surprising that such documents were accepted by the Court Registry.
The parties’ courtroom presentation was not much more coherent, with the Respondent in particular contradicting himself on several occasions, and a critical witness for the Respondent not having been put on Affidavit and unavailable to give oral evidence.
The Applicant’s evidence, too, was less than satisfactory in relation to some matters, which I will return to later in these Reasons.
The Suburb D property was the subject of much argument and incoherent evidence during the trial, but having read the entire transcript of the proceedings, I have attempted to find some clarity upon which to found a settlement that is just and equitable in all the circumstances.
Despite the state of the evidence, some agreements were reached at trial, and Interim Orders were made essentially by consent on 24 May 2019.
Those Orders provided for the Respondent to pay the Applicant $100,000 within eight weeks of the Orders, and upon the payment, for the Applicant to transfer the J Street, Town G property to the Respondent.
The Orders provided for those monies to be disbursed to pay the parties’ considerable debts (insofar as those debts were agreed), and the balance, if any, was to be placed in an interest-bearing trust account in the names of both parties pending further Order of the Court.
In the event that the payment was not made by the due date, the J Street, Town G property was to be sold by the Applicant, and its sale proceeds disbursed in much the same way.
Upon the debt owed to E Finance being paid out, the Applicant was to transfer to the Respondent the motor vehicle for whose purchase the loan had been obtained.
On 18 November 2019, the Respondent filed an Application for Contempt in relation to the Orders of 24 May 2019.
I do not intend to retry that matter here, save to say that that Application was heard on 6 December 2019, and dismissed summarily as the Application was ill-conceived and revealed no offence on the part of the Applicant. I have not considered any of the evidence filed specifically in those proceedings, or the fact that they were issued, in my overall property settlement deliberations.
On 30 January 2020, my chambers received correspondence from the Respondent which enclosed a copy of a letter from Aughtersons Lawyers Pty Ltd, the solicitors who dealt with the sale of the J Street, Town G property, addressed to the Applicant and dated 13 January 2020.
That letter reveals that settlement of the sale of the J Street, Town G property took place on 22 November 2019, and the sale proceeds were disbursed pursuant to the Orders of 24 May 2019.
Clearly, the Respondent had not been able to purchase the J Street, Town G property as he had intended at the time of trial, and it had been sold by the Applicant for $115,000, a greater sum than expected.
Once most of the parties’ joint debts were paid pursuant to the Orders of 24 May 2019, the remaining funds of $3,985.46 were placed in the trust account of Aughtersons Lawyers Pty Ltd pending Final Orders being made in these proceedings.
(a) Is it just and equitable to alter the parties’ property interests?
This question arises from the operation of s.90SM(3) of the Family Law Act 1975 (Cth) (“the Act”), which states that a Court may only make orders altering the property interests of parties to a de facto relationship if it is just and equitable in all the circumstances of the particular case to do so.
In Stanford v Stanford[1] the High Court of Australia considered the requirements of s.79(2) of the Act, which refers to married parties but is otherwise identical in its terms to s.90SM(3). Their Honours stated, at paragraph 42:
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.
[1] Stanford v Stanford (2012) FLC 93-518.
In Bevan & Bevan [2013] FamCAFC 116, the Full Court of the Family Court of Australia said that the circumstances described in that passage of the Stanford judgment “encapsulate the vast majority of cases”[2] .
[2] Bevan & Bevan [2013] FamCAFC 116 paragraph 70.
In this case, the parties lived together and acquired property which, because of their separation, can no longer be jointly enjoyed. There is nothing in the circumstances of the present case which would remove it from the category of “the vast majority of cases” coming before this Court, and therefore I find that it is just and equitable to consider making Orders that would alter the parties’ property interests.
(b) If it is just and equitable, what are the property interests of the parties and what is their value?
At the time of trial, the parties agreed that their property interests might be set down as follows:
| ITEM | OWNERSHIP | VALUE |
| Asset | ||
| Net sale proceeds from the sale of the F Street, Town G property | Applicant | $7,416.56 |
| J Street, Town G property | Applicant | $80,000 - $100,000 |
| Suburb D property | Applicant | $120,000 |
| Motor Vehicle 2 | Respondent | $10,000 |
| Motor Vehicle 5 | Applicant | $3,000 |
| Motor Vehicle 3 | Unregistered | $1,000 |
| Motor Vehicle 4 | Unregistered | $2,000 |
| Household contents | Applicant | $5,000 |
| Household contents | Respondent | $1,000 |
| Total Assets | $229,416.56- $249,416.56 | |
| Liabilities | ||
| Equity loan over the Suburb D property | Joint | $30,000 |
| E Finance | Joint | $13,000E |
| Credit card debt | Joint | $14,000 |
| Rates arrears on the Suburb D property | Disputed | $15,477 |
| Debt to Applicant’s parents for property contract rescission debt resolution | Joint | $23,000 |
| Debt to Applicant’s parents for purchase of F Street, Town G | Joint | Disputed: $25,000 (Applicant) $18,000 (Respondent) |
| J Street, Town G rates | Joint | $380 |
| Total debts | $113,857 - $120,857 | |
| Superannuation | Applicant | $2,090 |
| Respondent | $1,100 |
I consider that the whole of the $25,000 the parties borrowed from the Applicant’s parents for the purchase of the J Street, Town G property is a joint debt, as it was spent during the relationship. Mr Waites says that Ms Beadons only applied $18,000 of that loan towards the J Street, Town G property, but as the money was borrowed during the relationship and spent during the relationship, I find that the parties jointly owed the entire amount.
$18,000 of that debt was paid to Ms Beadons’ parents from the sale proceeds of the J Street, Town G property pursuant to the Orders made on 24 May 2019. They are therefore still owed $7000, and that is the sum I have added to the Liabilities column below.
The rates arrears on the Suburb D property arise from a sum of some $8,000 or so which was owed at the end of the relationship between Ms H and Mr Waites. It is not a debt of this relationship as there is no evidence that the rates on the Suburb D property were not paid as they fell due during the relationship between Mr Waites and Ms Beadons. That sum has now risen to the much more significant sum of $22,310.00 with the addition of penalties and interest, and I consider that debt to be a debt of the Respondent alone for the purposes of this settlement.
The Applicant received the net sale proceeds of the F Street, Town G property of $7, 416.56, but in the absence of clear evidence to the contrary, and having perused her tendered bank statements for the period, I am satisfied that the $7,416.56 was applied to reduce the parties’ joint debts. It does not therefore remain an asset of the parties.
At the time of writing, and taking into account the matters set out in paragraphs 41 to 48 above, the property interests of the parties for division in these proceedings may be set out as follows:
Assets
Owner
Valuation
Net proceeds from sale of J Street, Town G
Aughtersons Lawyers in trust for the parties
$3,985.46
C Street, Suburb D, NSW
Applicant
$120,000.00
Motor Vehicle 2
Respondent
$10,000.00
Motor Vehicle 1
Applicant
$3,000.00
Motor Vehicle 3
Unregistered
$1,000.00
Motor Vehicle 4
Unregistered
$2,000.00
Household furniture and appliances
Applicant
$5,000.00
Household contents
Respondent
$1,000.00
Total assets
$145,985.46
Liabilities
Rates arrears on the Suburb D property at time of writing
Applicant
$22,310.00
Personal loan from Mr Beadons and Ms A Beadons
Joint
$7,000.00
Total Liabilities
$29,310.00
Net assets excluding superannuation
$116,675.46
Superannuation
Super Fund K
Applicant
$2,090.00
Super Fund L
Respondent
$1,100.00
Total Superannuation
$3,190.00
Net assets including superannuation entitlements
$119,865.46
(c) What were the parties’ contributions to the property?
This question is mandated by s90SM(4) of the Act, which states:
In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) 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 de facto relationship 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 de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) 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 de facto relationship or either of them; and
(c) the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, 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 de facto relationship; and
(e) the matters referred to in subsection 90SF(3) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.
Initial contributions
At the beginning of the parties’ relationship, neither party owned any real property, although the Respondent had an unquantifiable interest in the Suburb D property.
Both parties owned motor vehicles.
Because of his interest in the Suburb D property, which was used by the parties as security to borrow funds for the purchase of the F Street, Town G property, I consider the Respondent to have made the vast majority of the initial contributions to the relationship.
Contributions during the relationship
According to the legal authorities[3], the question of contributions is rarely one to be answered by finely detailed examination of parties’ earnings and expenditure. As a general rule, and unless there is specific evidence to the contrary, such as the contribution to the joint property of an inheritance, or the sale proceeds of a previously-owned item of property, the contributions of the parties are often considered to have been equal during the period of cohabitation.
[3] For example Hayne & Hayne [1997] FLC 90-265; Garrett & Garrett [1984] FLC 91-539; In the Marriage of Quinn (1979) FLC 90-677
That is because de facto relationships and marriages are partnerships, and where both partners are either working and bringing income into the relationship, or are maintaining the household and/or caring for a child or children of the relationship, those are all considered to be significant and qualitatively equal contributions to the partnership.
In this case, the parties worked or were in receipt of Centrelink benefits during the relationship, although they were apparently loaned or given significant amounts of money from their respective parents for the purchase and renovation of F Street, Town G and the purchase of the J Street, Town G property.
Those contributions, if they are proven, would be considered to have been made by the party whose family member/s made the contribution.
In addition, Ms Beadons claims that she withdrew $20,000 from her superannuation to pay for joint expenses, debts and renovations during the relationship.
I have searched the Court’s file, including Ms Beadons’ tendered bank accounts, for any documentary support for that contention and can find none, although there is some evidence that a much lesser sum was withdrawn from her superannuation on hardship grounds, that sum being approximately $5,000. I will consider that a specific contribution on her part.
Ms Beadons also claims that the sum of $92,000 was paid to Ms Waites during the relationship, in repayment, and indeed overpayment of all monies loaned to the parties by Ms Waites.
Mr Waites denies that his mother has been repaid all that the parties owed her. He wants the Suburb D property to be transferred back to his mother’s name without payment to the parties, and it is his case that once the Suburb D property becomes registered in Ms Waites’ name, she will take on responsibility for the now over $22,000 in rates arrears owing to the Region B Council.
I note that the evidence shows that that amount results from interest and penalties on a much smaller arrears of rates debt owed on the Suburb D property at the time the parties’ relationship began. That is, it would appear that that original debt was incurred during the relationship between Mr Waites and Ms H, and Ms Beadons has been adamant throughout these proceedings that the Respondent ought to be responsible for that debt as a result of these proceedings.
I agree with her.
It is at this stage of my deliberations that the evidence becomes extremely murky and difficult to decipher.
First, there is no evidence whatsoever from Ms Waites. She did not file an Affidavit in the proceedings and she was not called to give evidence by either party. That is a failing of both parties given the amounts of money she is alleged to have paid and been paid during and in the aftermath of this relationship.
The void that sits where Ms Waites’ evidence ought to be leaves the Court only with inferences to be taken from bank accounts tendered at trial or annexed to Affidavits, but even then, no statements for bank accounts belonging to Ms Waites are part of that evidence.
The parties ask me to infer from deposits and withdrawals made to and from Ms Beadons’ and Mr Waites’ accounts that certain monies have been loaned to the parties by Ms Waites, either by direct deposit into Ms Beadons’ account, or via Mr Waites’ account, and then returned to Mr Waites’ account, presumably then to be transferred to his mother.
Each has calculated those sums differently, so that there is no agreement about exactly how much was transferred to the parties by Ms Waites and exactly how much, if any, was paid back.
The forensic investigative skills required to make total sense of the documents provided are beyond that expected of a Court in the Family Law jurisdiction, but I have attempted to follow the major deposits and withdrawals from the parties’ bank statements as far as is possible. I have not considered, in this exercise, smaller transactions which are clearly deposits of wages, payments to bank loans and withdrawals for daily expenses.
It was the Applicant’s evidence at trial that her National Australia Bank (“NAB”) Classic Banking account was the only bank account she held during the relationship, although she also tendered statements from a NAB Home Loan Offset account in her name, and there is reference in her bank statements of several deposits of about $120 to $300 having been made from “Savings – Bank M” to the Classic Banking account. There are no statements in the evidence before the Court from that account.
It is clear from the Offset account statement that it relates to the $83,000 equity loan provided by the NAB to Ms Beadons for the renovations to the F Street, Town G property. That $83,000 was not provided by Ms Waites, and the loan was secured by a mortgage over the Suburb D property.
On 4 December 2015, $18,000.00 was deposited in cash to the NAB Classic Banking account held in the name of the Applicant. There is no indication of either the depositor or the source of that money.
A further amount of $34,500.00 was deposited from “Ms Waites” on that same day.
Also on 4 December 2015, there were two withdrawals in sums of $2,200 and $50,213.47 made from that account.
That is, on 4 December 2015, deposits totalling $52,500 and withdrawals totalling $52,413.47 were made to and from Ms Beadons’ account. The withdrawals are not particularised in any way on the statement and there is no way of determining who made them. It was Ms Beadons’ evidence at trial that both parties had full access to that account throughout the relationship.
On 18 May 2016, during the relationship, the sum of $83,377.65 was deposited to the NAB Classic Banking account, that sum being particularised only as “surplus funds” on the statement. There is no evidence before the Court as to where that deposit came from, and as far as I am aware, the parties did not sell any property at that time from which “surplus funds” might have remained. That creates the situation where, as neither party sought to ask questions about that deposit at trial, there is yet another significant void in the evidence. It may be that that deposit relates to the Equity Loan obtained for the F Street, Town G property renovations, but that is an inference on my part.
A further $10,000 was deposited on 20 May 2016 and there is a withdrawal in the same amount on that day, with the statement particularising the deposit as “Mr Beadons” and the withdrawal as “internet transfer”.
Between 20 May 2016 and 14 July 2016, withdrawals totalling $73,881.21 were made from the Applicant’s NAB Classic Banking account, the particulars on the statement recording that: $19,400 was transferred as “payment Ms A Beadons”; $19,081.21 simply as “internet transfer”; $20,000 as “internet transfer Ms Beadons” (and I note in this context that Ms Beadons sometimes uses the name “Ms Beadons” or “Ms Beadons”); $10,000 is marked in a handwritten note as being transferred to “Mr Waites …85” (which is the number of the Bank N account operated by Mr Waites); $2,400 is stated to be “internet transfer – trailer”; and $3,000 I simply marked “withdrawal”.
I do not intend to set out all the large scale deposits and withdrawals made to and from that account for the whole period of the tendered statements, which cover 5 August 2015 to 1 May 2019, but set out the above to indicate the Court’s problem in determining how much money might have passed between the parties and Ms Waites during the relationship.
In all, my calculations show that between 4 December 2015 and 28 August 2018, large scale deposits (ie those over $1,500 which are not attributed to wages) to Ms Beadons’ NAB Classic Banking account totalled $296,824.24, and large scale withdrawals totalled $227,958.73. The deposits are for sums between $1,600 and $10,000, and the withdrawals for sums between $1000 and $50,213.47. The deposits include the $7,416.56 in net proceeds from the sale of the F Street, Town G property, which was deposited on 9 April 2018 and marked “surplus funds”.
Only one statement from accounts operated in Mr Waites’ name was tendered at trial – that of his Bank N account, and then only for the period 1 July 2016 to 30 September 2016.
That statement shows that in that three month period, Centrelink benefits totalling $3,174.88 were deposited to the Bank N account, together with other large scale deposits totalling $117,930 from other sources. Sums totalling $99,049 were withdrawn in sums of $1,000 or larger during the same period.
Some of those deposits, as well as some of the withdrawals, are marked “Ms Beadons”, and the amounts correlate with transfers made to and from the NAB Classic Banking account, but others do not, and there is no way of determining their source or destination.
What is intriguing about the bank statements tendered at trial is that large scale deposits and withdrawals totalling hundreds of thousands of dollars were made between the parties’ accounts at times when they were apparently earning modest wages, or were in receipt of Centrelink benefits.
Ms Beadons provided statements from her NAB Classic Banking account from 2015 to 2019, and I note that the transfer of the large amounts ceased at or very soon after the parties’ separation.
Those facts alone raise doubts in the Court’s mind as to the parties’ credibility.
It is not possible to glean from the statements exactly who deposited most of the money, where it came from, who withdrew or transferred it, and its ultimate destination or use.
Any decision about those matters would be mere supposition on the part of the Court, and courts operate on evidence, not on supposition.
I note in that regard that, as a matter of law, the onus is on an asserter of a fact to prove that fact. In other words, it was for Mr Waites to prove, on the civil standard of the balance of probabilities,[4] that monies are owed to his mother, and in what sum.
[4] Evidence Act 1995 (Cth) s 140
It was for Ms Beadons to prove, to the same standard, that all monies loaned to the parties by Ms Waites have been paid back.
In the absence of any evidence at all from Ms Waites, and in light of the chaotic nature of the evidence produced by the parties at trial, only brief glimpses of which I have set out above, I am not satisfied, on balance, that the parties owe Ms Waites any debt in relation to the Suburb D property.
While it is probable that she has transferred money to the parties to assist them from time to time, it is impossible to discern from the evidence provided by the parties either the nature of those sums (that is, whether they were loans or gifts), or whether she either has or has not been repaid all of those monies.
The Suburb D property is now formally unencumbered following the payment of the remaining $29,800 of the equity loan from the proceeds of sale of the J Street, Town G property pursuant to the Orders of 24 May 2019. The only debt attached to it is the $22,310.02 in rates arrears owed to Region B Council as set out in an email from the Applicant dated 30 January 2020 attaching a notice from Region B Council dated 17 January 2020 confirming that fact. There is, however, a caveat over the Suburb D property lodged by the Respondent.
I note at this point in my judgment that neither Ms Beadons nor Mr Waites particularly impressed the Court in relation to matters of credit.
Mr Waites’ evidence at trial was often contradictory, even within a minute or two, and there were times when he appeared to be making up his evidence as he went along.
For example, during cross-examination, he was asked about monies allegedly paid back to Ms Waites and the following exchange took place:
Her Honour: Where is this money ($124,000 referred to earlier) supposed to have come from?
The Respondent: The equity account in Ms Beadons’ name.
Her Honour: The equity account? I thought there was only 83,000 in that.
The Applicant: It was a lot of money.
The Respondent: Yes, it was paid $83,000 used for renovations, and then probably close to being – our split there may have been $10,000 left in there.
Her Honour: Well, then, where does the $124,000 – what on Earth is that amount?
The Respondent: The – the $120,000 was deposited to my account, back into Ms Beadons’.
Her Honour: Where is it from?
The Respondent: From Ms Beadons’ account.
Her Honour: How did it get into Ms Beadons’ account?
The Respondent: It was already in her account.
Her Honour: How did it get there?
The Respondent: Well, the bank gave it to her. So there was – it was part of the $83,000.
Her Honour: $124,000 is not part of 83,000.
The Respondent: No, exactly. So what happened – Ms Beadons deposited approximately $120,000 with the transactions to my account and then transferred them back to her account to make it look like my mother was being paid money.
Her Honour: I don’t understand that. I don’t understand what you’re saying.
The Applicant: Again, I ask, when did you make me a signatory on your account, and can you please show me that document because I didn’t even know you had a bank account.
The Respondent: I didn’t make you a signatory on my account.
The Applicant: Correct. So how can I transfer anything out of your bank account?
The Respondent: You could do it online.
The Applicant: How could I – when I didn’t even know, because you told me that you had a card off your mum?
The Respondent: I don’t understand.
The Applicant: Of course you don’t.
Her Honour: The question is you say that Ms Beadons transferred money out of your account into her account.
The Applicant: Correct.
The Respondent: No, your Honour.
The Applicant: Yes. That’s what you say in your affidavit.
Her Honour: Well, that’s what you said a moment ago and that’s what you’re saying here.
The Respondent: No, your Honour. The money was deposited from Ms Beadons’ account to my account and then back to her account.
Her Honour: How did it go back to her account?
The Respondent: Well, she transferred it back.
Her Honour: Well that’s what she saying. She doesn’t have access to your account.
The Respondent: She had access…
Her Honour: How could she possibly?
The Respondent: She had access to my account.
Her Honour: How?
The Respondent: She had all the passwords and logged onto the account online and – – –
The Applicant: No.
Her Honour: Have you got records of that?
The Respondent: What do you mean?
Her Honour: Well, there would be records of transfers going to and fro.
The Respondent: Yes, of course. Of course there are records. The records are in the affidavit, your Honour.
When pressed on that matter, the Respondent referred the Court to a document he had prepared and annexed to his Affidavit sworn 8 May 2019 filed 18 May 2019. That document was not an official statement from his bank.
By his calculations between 11 July 2016 and 30 September 2016, $109,000 had been transferred into his account and $104,400 had been withdrawn, he says, by Ms Beadons.
Ms Beadons simply denies that she transferred any monies from Mr Waites’ account to her account because, she says, she never had access to Mr Waites’ account, either directly or via the Internet.
As previously stated, there were certainly multiple transfers between Ms Beadons’ NAB Classic Banking account and Mr Waites’ Bank N account.
However, it is impossible for the Court to determine who made those transfers and for what purpose. The evidence, both written and oral, simply made no sense of them.
I found Mr Waites to be a very unsatisfactory witness. His presentation was of a man who sees himself as a “player” in the property development sphere, but he has only his interest in the Suburb D property to show for his labours.
He is in receipt of Centrelink benefits, but his bank account shows deposits in large amounts from unknown sources.
In relation to the allegation that he had registered the Suburb D property in his mother’s name in order to defeat any potential claim from Ms H under the Act, he had no answer.
It was the Respondent’s evidence at trial, supported by that of Ms H, that they had purchased the Suburb D property using vendors’ finance during their relationship. The property was placed in Ms H’s name for reasons which are unclear, except that Mr Waites appears to have some sort of aversion to having real property registered in his name.
It was Ms H’s evidence that she did not know that the Suburb D property had been transferred to Ms Waites until these proceedings were well on foot, and she had discovered the history of the property from a title search conducted as part of the enquiries as to whether she might have a claim against Mr Waites under the Act herself.
Ms H denied in her Affidavit, affirmed 26 April 2019 and filed 3 May 2019, that she had ever signed a Transfer of Land for the Suburb D property to be transferred into Ms Waites’ name, and that the signature on the purported Transfer document was a forgery. Under cross-examination at trial by Mr Waites, whom she had not seen since their separation some seven years previously, Ms H was adamant in confirming that Affidavit evidence and could not be shaken on it.
Ms H’s evidence was clear and compelling and I find that it is more probable than not that the Suburb D property was placed first in Ms Waites’ name, and then in Ms Beadons’ name, in order to defeat a claim that Ms H may have had against Mr Waites under Part VIIIAB of the Family Law Act 1975 (Cth).
That, together with the contradictory evidence given by Mr Waites at trial, of which the above-quoted passage is merely one of many examples, causes me to have considerable doubt about his credit in general.
I also have cause for some, though lesser concern about the credit of Ms Beadons.
On her own affidavit evidence, early in her relationship with Mr Waites, she was prepared to have the Suburb D property transferred into her name in order, she was told, to defeat any legal claim against the property by Ms H. That is not the action of an honest woman.
In her defence, when asked about that transaction at trial, Ms Beadons said that she had not believed what she had been told was true, because she had also been told that the property belonged and had always belonged to Mr Waites’ mother. Her explanation, that she had thought that she and Mr Waites were buying the Suburb D property from Ms Waites because there were large amounts of money coming out of her bank account, impressed as somewhat naïve.
There are large questions still remaining about the use of her NAB Classic Banking account, through which large amounts of money, whose sources she says she did not know, passed during the relationship.
Ms Beadons does not appear to have made any major financial contributions to the Suburb D property, as the monies loaned to the parties by her parents were applied to the purchase of the J Street, Town G property and to the debt incurred as a result of the parties’ rescission of the contract to buy the property at J Street, Town G, and the $83,000 equity loan was used on renovations for the F Street, Town G property.
In other words, she made major financial contributions, both direct and indirect, to both the J Street, Town G and F Street, Town G properties, but it would appear that she made no major financial contributions to the Suburb D property.
It was her evidence at trial that $92,000 from her bank account had been “put into (Ms Waites’) bank account”, and that that money was to pay Ms Waites for the Suburb D property. She could not say where that $92,000 had come from, saying, “That is a question for Mr Waites” and “Mr Waites had complete control of the bank accounts at that stage, and you will see – I don’t know what was going on. Not even going to pretend”. The following exchange then took place:
Her Honour: The amount of 92,000 was paid from where?
The Applicant: Was paid from my NAB account.
Her Honour: From your NAB account?
The Applicant: Correct.
Her Honour: And where did that money come from?
The applicant: It came from Mr Waites putting money in.
Her Honour: Right. He deposited 92,000 into your account, and then it went to his mother?
The applicant: Correct.
In other words, Ms Beadons does not claim to have made any personal financial contribution to the “purchase” of the Suburb D property from Ms Waites.
Nevertheless, as a partner in the relationship, she made unquantifiable non-financial contributions to the Suburb D property, in that the parties lived in it and maintained it for part of the relationship.
In all of those circumstances, I find that the parties’ contributions to the property during the relationship were equal.
Post-separation contributions
It is not disputed that between separation in June 2017 and the date of trial, the Applicant had made all payments due on the mortgage over the F Street, Town G property until its sale in April 2018, and instalments on all other joint debts of the parties.
She has conducted the sales of the F Street, Town G and J Street, Town G properties, and ensured that the proceeds from those sales were applied according to Court Orders, save that, technically, the $7,416.56 she received from the sale of the F Street, Town G property ought to have been applied to pay down more of the equity loan over the Suburb D property.
However, between the date of separation in June 2017 and the time of trial, Ms Beadons’ NAB Classic Banking account statements reveal that she has received further deposits into that account as follows:
·$600 particularised as “rent – Ms Q”, although I cannot discern from the evidence what that rent might have been for, save to note that the payments were for $120 at a time;
·$2,250 particularised as “Licenced Agreement – Bank P”, and I note in this context that because of a delay in the settlement of the sale of the F Street, Town G property, the purchasers paid the parties $250 per week between 29 January 2018 and 26 March 2018 for their occupation of the property pursuant to an agreement between them;
·$3,900 particularised as “rent” or “for rent” from “Ms R”. I can only surmise from the evidence before the Court that Ms R was the tenant who was renting the Suburb D property between April 2018 and September 2018; and
·$7,500 particularised only as “Ms S” or “Ms S”, and deposited between 15 November 2018 and 24 April 2019. Again, I can only surmise those payments were from the tenant who was occupying the Suburb D property at the time of trial.
That income, which Ms Beadons made no attempt to hide at trial, somewhat diminishes the post separation contributions made by her, although I note that it was she who organised those payments and kept records of them.
I find therefore, that the majority of the post-separation contributions to the parties’ property were made by the Applicant.
Overall, I find that the parties’ contributions to their property falls 65% to the Respondent, and 35% to the Applicant, with the Applicant’s undoubted contributions made during and after the relationship being overwhelmed by the Respondent’s interest in the Suburb D property at the commencement of the relationship, without which the parties would not have been able to purchase the F Street, Town G property.
(d) Should there be an adjustment to the contribution-based entitlements of the parties after a consideration of the matters set out in s.90SF(3) of the Family Law Act 1975 (Cth) (“the Act”)?
Section 90SF(3) of the Act sets out the factors the Court must take into consideration when making orders for the maintenance of a party to a de facto relationship.
The inclusion of this exercise in de facto property proceedings is required by s.90SM(4)(e) (see above).
Section 90SF(3) of the Act states that the court must consider the following matters when deciding whether to further alter property interests of parties [5]:
[5] I have omitted sub-sections which do not apply to these parties
(a) the age and state of health of each of the parties; and
(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; and
(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; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (4), 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; and
(g) a standard of living that in all the circumstances is reasonable;
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(i) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party's role as a parent; and
(m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 90SM in relation to:
(i) the property of the parties; or
(ii) and
(q) and
(r) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
Ms Beadons is now 49 years old and Mr Waites 44. Both appear to be in good health.
Ms Beadons is the registered proprietor of the Suburb D property, although she acknowledges that she made no personal direct financial contributions to it.
I accept Ms H’s evidence in relation to that property. That is, that she and Mr Waites bought it from its owner for $80,000 in or about 2011. The purchase price was met by a deposit of $20,000 - $10,000 of which was derived from Ms H’s credit card and $10,000 paid by her parents – and a vendor’s finance arrangement that required her and Mr Waites to make payments of $1000 per month for two years, after which they would be required to pay the remainder of the purchase price in a lump sum.
The property was registered in Ms H’s name. When she was asked at trial why that was so, Ms H said:
How I came to be on the title of that property is because every property that Mr Waites owned went into foreclosure, so to provide a roof over our head, I – we purchased this property under vendor’s finance because I wasn’t in any position to get a loan and he certainly couldn’t.
After she and Mr Waites separated, Ms H said that she understood Ms Waites to have paid out the debt owed to the vendor, although there is no specific evidence before the Court in that regard.
I note again, in some frustration, that there is no evidence whatsoever before the Court from Ms Waites, and if she did help her son out by paying out the vendor’s finance, she has made no claim on the Suburb D property as a result of that investment.
Ms Beadons is in gainful employment, although her bank statements show her earning only an average of about $2,300 per month after tax from that employment in the first four months of 2019.
Mr Waites, while apparently not employed at the time of trial, save in a voluntary capacity as his father’s carer, has experience in the property development industry.
He told the Court at trial that he had been “buying and selling properties all (his) life”. Certainly, the large sums of money being deposited to and withdrawn from his bank account during the relationship appear to support the fact that he has a significant earning capacity. In those circumstances, it is difficult to see how he would be eligible to receive Centrelink benefits, but the state of the evidence prevents me from making any findings in relation to that issue.
The de facto relationship between the Applicant and the Respondent lasted for only approximately 2½ years and I cannot find that its duration has affected either party’s earning capacity.
There is no evidence before the Court suggesting that either party is cohabiting with another person.
The orders I will make in this case will alter the parties’ property interests and will therefore affect their future financial circumstances.
I also take into account, under s90SF(3)(r), my scepticism about the totally chaotic nature of much of the evidence provided by Mr Waites, and the highly unsatisfactory nature of his oral evidence.
In addition, I take into account the fact that Ms Beadons has received all rental payments from the Suburb D and Town G properties, and while it is clear that some of those monies have been spent on joint debts, that amount is not quantified in the evidence presented to the Court.
In light of all the matters set out above, I find it appropriate to make an adjustment to the parties’ contribution-based entitlements to their property of 5% in favour of the Applicant.
(e) In light of the above findings, what Orders should be made to effect a just and equitable division of property between the parties?
The consequences of the decisions in relation to Issues (d) and (e) is that there will be an alteration of the parties’ property such that the Respondent receives 60%, and the Applicant 40%.
That is, Mr Waites will receive 60% of the property pool as set out in paragraph 49 of these reasons, and Ms Beadons will receive 40%.
I have found that the net worth of the property of the parties, including superannuation, is $119,865.46.
Therefore Mr Waites should receive/retain assets and superannuation with a net worth of $71,919.28[6] , and Ms Beadons should receive/retain assets and superannuation worth $47,946.18[7] .
[6] $119,865.46 x 60% = $71,919.28
[7] $119,865.46 x 40% = $47,946.18
Mr Waites already retains the following:
·his Motor Vehicle 2 worth $10,000
·his household contents worth $1000
·superannuation entitlements worth $1100;
·the unregistered Motor Vehicle 3 worth $2000
·the unregistered Motor Vehicle 4 worth $1000
a total of $15,100 in value.
I have found that Mr Waites is solely responsible for the debt to Region B Council arising from arrears in rates payments on the Suburb D property. That sum is $22,310.00, and I will order Mr Beadons to pay that sum upon the Suburb D property being transferred to him.
The debt to Ms Beadons’ parents will be divided in the proportions of 60% to Mr Waites and 40% to Ms Beadons for the reasons set out in paragraph 45-46 of these Reasons. 60% of the remaining $7000 debt is $4,200.
Therefore, at the moment, Mr Waites has assets and superannuation worth $15,100 and debts of $26,510.00[8], a negative equity of $11,410.00.
[8] $4,200 owed to Ms Beadons’ parents and the entirety of the debt arising from the rates arrears owed on the Suburb D property
He therefore needs to receive property worth a further $84,329.18[9] in order to effect a settlement of 60% to him.
[9] $72,919.18 + $11,410 = $84,329.18
Ms Beadons currently retains the following:
· the Suburb D property worth $120,000;
· the Motor Vehicle 1 worth $3000;
· household contents worth $5000;
· and superannuation entitlements of $2090;
a total of $130,090 in value.
However, I have found that the debt to her parents is to be divided so that she pays 40%, or $2,800.00 of it. She therefore needs to “shed” property worth $79,343.82[10] in order to effect a 40% settlement to her.
[10] $130,090 - $47,946.18 - $2800 = $79,343.82
As Mr Waites owned an interest in the Suburb D property before the parties’ relationship began (along with Ms H, whom he seems to have treated very harshly in terms of property rights after the breakdown in their relationship), and he wishes to retain that property, which he says belongs to his mother, it is appropriate that Mr Waites retain that property in this settlement. I am not prepared to order the transfer of the Suburb D property to Mr Waites’ mother, as he wishes me to do, in the absence of a clearly and properly evidenced claim by her. Any monies Mr Waites claims to be owed to his mother will have to be paid from his share of this property settlement.
That means that, if Mr Waites is to retain the property he currently has (which is worth $-11,410), as well as the Suburb D property, he would have property worth $108,590[11]. He would then have to pay Ms Beadons a cash payment of $36,670.22[12]
[11] -$11,410 + $120,000 = $108,590
[12] $108,590 - $71,919.28 = $36,670.72
That division would result in the following alteration of the parties’ property interests:
Applicant Respondent
| Item | Value | Item | Value |
| Payment from Respondent | $36,670.72 | Payment to Applicant | ($36,670.72) |
| Motor Vehicle 1 | $3,000 | The Suburb D property | $120,000 |
| Household contents | $5,000 | Motor Vehicle 2 | $10,000 |
| Superannuation entitlements | $2090 | Motor Vehicle 3 | $2,000 |
| Proceeds of sale from the J Street, Town G property | $3,985.46 | ||
| Debt to Applicant’s parents | ($2,800) | Motor Vehicle 4 | $1,000 |
| Household contents | $1,000 | ||
| Superannuation entitlements | $1,100 | ||
| Debt to Applicant’s parents | ($4,200.00) | ||
| Debt to Region B Council | ($22,310.00) | ||
| Total | $47,946.18 | $71,919.28 |
Conclusion
This has been an extremely frustrating case.
The attitude of the Respondent, and his apparent inability (or unwillingness) to set out his case in any kind of coherent fashion, have meant that the Court has taken much more time in dealing with this matter than ought to have been the case.
The Applicant, too, has not made the Court’s deliberative processes any easier.
However, the settlement set out above will allow both parties to move on with their lives with some security.
I certify that the preceding one hundred and sixty-two (162) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 14 February 2020
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