Bellerose and Tailler

[2017] FCCA 3007

FEDERAL CIRCUIT COURT OF AUSTRALIA

BELLEROSE & TAILLER [2017] FCCA 3007

Catchwords:
FAMILY LAW – Ex tempore property judgment.

Legislation:

Family Law Act 1975 (Cth), s.106A

Kennon & Spry [2008] HCA 56

Stanford & Stanford (2012) 247 CLR 108

Applicant: MS BELLEROSE

Respondent: MR TAILLER

File Number: DGC 2935 of 2016

Judgment of: Judge Burchardt

Hearing date: 29 November 2017

Date of Last Submission: 29 November 2017

Delivered at: Dandenong

Delivered on: 29 November 2017

REPRESENTATION

Counsel for the Applicant: Mr O’Connell

Solicitors for the Applicant: Borchard & Moore

Counsel for the Respondent: Mr Moisidis

Solicitors for the Respondent: Waters Lawyers

ORDERS

1. The Husband pay to the Wife the sum of $143,000 on or before 28 February 2018.

2. Contemporaneously with the payment:

   (a)The Wife do all such acts and things and sign all such documents as may be required to transfer to the Husband at the expense of the Husband all of her right, title and interest in the real property situate and known as Property A in the State of Victoria (“the real property”);

   (b)The Husband be liable for and indemnify the Wife against all apportionable rates, taxes and outgoings with respect to the real property of whatsoever nature and kind.

3. In the event the whole of the payment has not been made by the due date then the real property be forthwith sold altogether out of Court (“the sale”) and upon completion of the sale, the proceeds of sale be applied:

   (a)Firstly to pay all costs, commissions and expenses of the sale;

   (b)Secondly the total amount of the payment outstanding plus interest at 10 per centum per annum adjusted to the Wife;

   (c)Thirdly the balance to the Husband.

4. In the event the real property is sold and parties do not agree on the selling agent and/or the reserve price, then the President of the Real Estate Institute of Victoria or his/her nominee be appointed to nominate a selling agent and a reserve price.

5. Pending the payment or completion of the sale:

   (a)The husband have sole right to occupy the real property and that during such right of occupation the Husband pay all rates and taxes and like apportionable outgoings of the real property as they fall due;

   (b)The parties hold their respective interests in the real property upon trust pursuant to these orders; and

   (c)Neither party encumber the real property without the consent in writing of the other party.

6. Unless otherwise specified in the orders and save for the purpose of enforcing monies due under the 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 the orders;

   (b)Insurance policies remain the sole property of the life assured named therein;

   (c)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to the ordered;

   (d)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

7. In the event that the Husband or the Wife refuses or neglects to execute a deed and/or instrument in compliance with the provisions of paragraphs of the order, the Registrar of this Honourable Court is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute all deeds and/or instruments in the name of your client and/or our client and do all acts and things to give validity and operation to the deeds and/or instruments.   

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2935 of 2016

MS BELLEROSE

Applicant

And

MR TAILLER

Respondent

REASONS FOR JUDGMENT

1. I will commence with some background, and this is largely taken from Mr O’Connell’s very helpful opening.  The wife is 68 years old and the husband 70.  They met in (country omitted) and co-habited in Melbourne first on and from (omitted) 2007. They were married on (omitted) 2007 and separated in September 2015.  There are no children of the relationship.  The husband already owned outright an unencumbered home in Property B.

2. The husband has three daughters who live independently.  The wife has two children who live in the (country omitted).  The husband has stayed rent free after separation in the former matrimonial home, but I should make it clear that I think this is countermanded by the fact that he has paid all the outgoings and kept the property in good shape.  It is presently valued at $530,000, and the parties, I think, agree that that in real terms is the property pool.

3. The first issue I would address is the question of the monetary contributions the parties have made.  It is common cause that the property thereafter bought in (town omitted) was bought for $345,000 inclusive of reduced stamp duty owing to their circumstances.  Of that amount, $310,000 was contributed by the husband from the proceeds of the sale of his property in Property B, and $35,000 was contributed by the wife. 

4. The husband also at some point relevantly for these proceedings included in the relationship a property in (country omitted) which I am prepared to accept was for about A$10,000.  The wife also sold a flat in (country omitted) for some $77,500 of which, as I have said, $35,000 was applied to the purchase of the (town omitted) home.  The other $40,000 was comingled with the husband’s other funds.  I note the parties have divided between them their funds at separation, and these were not minimal.  And one cannot help but observe that for people on a pension they have been able to travel very extensively and amass quite considerable amounts of money.

5. I accept, as counsel for the wife submitted, that the wife would have done the housework and the cooking and the like.  These parties presented as very traditional in their style, and by the same token, the husband would have done the other manual labour around the place.  I note that he was a (occupation omitted).  I would presume he is reasonably handy with his hands.  The husband had a pension.  The wife had a carer’s allowance.  Both had and still have relatively small (country omitted) pensions.  The wife’s is worth somewhat more because she worked longer in (country omitted). 

6. The next matter I should deal with is the question of the family violence alleged by the wife.  The wife says that throughout the relationship the husband denigrated her with insults, calling her stupid, on occasions more insulting matters such as calling her a whore and threats to kill on at least one occasion when he held up his hands.  I will come back to that, and it is said that he controlled her generally.  The wife was, in my view, generally a good witness, and I would come to three particular matters she asserted which I accept took place.

7. The first was in 2009 when she said the husband held up his hands to her and said words to the effect that, “One wife has died.  The next one is going to be you.”  This evidence was given with conviction and accompanied by a physical gesture that I found compelling.  The second one was the incident in about 2010 when the wife described the husband grabbing her and spitting in her eyes, and the third in time was in 2015 when he spat in her face.  The wife first said that this happened shortly after they moved into the new house but corrected herself.

8. All these three occurrences were given with complete conviction, and, as counsel for both sides basically put it, it is a matter of who I believe.  And in respect of these matters, I believe the wife.  I note that the husband was dismissive of all points put against him, but I found his replies unpersuasive.  I accept that the wife did not go to the police, but she scarcely speaks English and is in a foreign land.  Her disempowerment in that regard is unsurprising.  The husband impressed me as having a very strong personality, but the wife is by no means wholly fragile.

9. The medical evidence put in support of her assertions as to her medical health are not, at least as far as the psychological evidence goes, very persuasive.  The relevant person is not on oath, was not available for cross-examination and has not disclosed their qualifications.  I accept, of course, that the wife actually left the relationship, and this would be no small matter bearing in mind she is in a foreign and alien land.  And I also note that she appears to have informed her church members of what it is that she complained about.

10. I therefore accept that there is some misconduct but not as much as she says.  She stayed with him.  They travelled together frequently overseas.  She had a car.  She had some freedom of movement and friends.  In the end, thus, while I do accept there was family violence, both as I have described it and I accept also that the husband would on occasion have been dismissive and insulting in his language, I do not accept that this cases goes far enough to be a Kennon case. Kennon cases are reserved for, if I can use the simile, heavier metal than this even though, of course, what I have described is very unattractive.

11. That brings us, I think, to Stanford.  As the High Court made it clear, the Court’s first task is to ascertain the legal and equitable interest in property the parties have.  Here, this is the matrimonial home in the sum of some $530,000.  That is it.  Cars are of little, if any, value.  The vague concerns raised by the husband about jewellery and the like are simply not made out.

12. It is clearly appropriate that there be an adjustment.  Both parties seek it, and the basis upon which they conducted their affairs together is plainly at an end.  This brings us then against these findings to an analysis of the contributions of the parties.  There is, of course, no presumption as to a fifty-fifty split, nor is it a matter of mathematical calculation.  It is clear the main financial contribution came from the husband.  He put in $310,000 and $10,000, and the wife put in $77,500.  That is nearly $400,000, and the wife put in just under 20 per cent on that analysis.

13. But the wife’s money was only just over 10 per cent of the actual price of the real property that they bought.  So one needs to bear that in mind as well.  This was an eight-year relationship, was certainly not long and, in my view, relatively short.  One must give credit to the wife’s role as a homemaker, but the husband is at home as well.  Doing the best one can in what in all these cases is never a precise tabulation, I consider that the contributions should be assessed as to 20 per cent for the wife and 80 per cent to the husband.

14. I should deal briefly with alleged loan from the husband’s children.  The wife’s version of these events was given with conviction, and I accept it.  These figures that were transferred came from the sale of cars as she described.  I note that the actual figures in the bank accounts are incredibly precise.  They are not figures denoting what you might describe as a rounded off figure for a loan.  It is far more probable than otherwise that they come from the sale of cars as said, and I note that the daughters were not called to corroborate the loans in any event.

15. This brings us to the question of future needs.  Both of the parties are in poor-ish health, although, I must say, they presented to me as robust.  The husband is on an age pension, and he may, but may not, benefit in some fashion from his relationship with his new wife who is presently in (country omitted) but facing at least for the moment some visa difficulties.  I am not in a position to speculate as to whether the husband would return to (country omitted) in the event that his new wife does not obtain a visa.  He has plainly not contemplated it, and even if she does not, I would have doubts as to whether he would return to (country omitted) in any event.

16. The wife has an income of $400 per week if one looks at the exhibits A1 and A2 but will not obtain a full pension until approximately February 2020, according to the letter annexed to her most recent affidavit.  Neither of them will work in the future.  The wife does not speak English.  The suggestion that the husband’s new wife can work if she comes to Australia is gainsaid by the fact that she speaks no English at all apparently.  The income of the parties is not so very different.  The wife has $400 a week including her (country omitted) pension.  The husband has $430 in the Australian pension and $40 from (country omitted).

17. Doing the best one can to calibrate all these matters up and bearing in mind that the husband has more immediately available support from his own family in Australia, I think there should be a seven per cent adjustment to the wife in respect of future needs.  Taking a step back and to the last step of the four-step process, in my view, an outcome that gives the wife 27 per cent of the value of the matrimonial home is just and equitable in all of the circumstances.  I will request counsel to draw up a minute to give effect to this conclusion.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 8 December 2017