Bennett and Bennett

[2017] FamCA 710

FAMILY COURT OF AUSTRALIA

BENNETT & BENNETT [2017] FamCA 710

FAMILY LAW – PROPERTY ADJUSTMENT – Where consideration of parties contributions overall – Where consideration of relevant s 75(2) factors – Where appropriate that small asset pool be divided as to 55 per cent to the wife 45 per cent to the husband.

Family Law Act 1975 (Cth) ss 75, 79

Bevan & Bevan [2014] FamCAFC 19
Chapman & Chapman [2014] FamCAFC 91
Harris & Harris (1991) FLC 92-254
Kessey & Kessey(1994) FLC 92-495
Lovine & Connor and Anor (2012) FLC 93-515
Russell & Russell (1999) FLC 92-877
Scott & Danton [2014] FamCAFC
Stanford v Stanford [2012] HCA 52 203
Teal & Teal [2010] FamCAFC 120

APPLICANT: Ms Bennet

RESPONDENT: Mr Bennet

FILE NUMBER: PAC 4009 of 2015

DATE DELIVERED: 14 September 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 22 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Druitt

SOLICITOR FOR THE APPLICANT: Elias Gates & Associates

COUNSEL FOR THE RESPONDENT: Mr Morahan

SOLICITOR FOR THE RESPONDENT: Chen Shan Lawyers

Orders

1. That the husband and wife do all things necessary and sign all necessary documents to authorise and direct that funds presently held in trust from the proceeds of sale of the home at Suburb B together with interest accrued, if any, be paid in the proportion of $292,570.00/$509,275.00 to the wife or as she may, otherwise, direct in writing and the balance then remaining of the available funds be paid to the husband.

2. That otherwise all application be dismissed.

3. That proceedings be removed from the active pending cases list.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bennett & Bennett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4009  of 2015

Ms Bennet

Applicant

And

Mr Bennet

Respondent

REASONS FOR JUDGMENT

1. The issue for determination is that of property adjustment as between the applicant wife and the respondent husband.

2. The applicant wife commenced proceedings on 18 August 2015. By her amended application filed 9 June 2017 she sought property orders in summary as follows:

   a)that funds presently held in trust by the husband’s solicitors be divided as to 65 per cent to the wife and 35 per cent to the husband;

   b)that the wife be declared the sole owner of the motor vehicle and the husband transfer his interest in that vehicle to the wife;

   c)costs.

3. The husband filed a Response to the wife’s application on 13 November 2015 seeking in summary the following orders:

   a)that the former matrimonial home at Suburb B be sold and after payment of selling costs and discharge of mortgage certain debts be paid out and that thereafter the balance be divided as to 60 per cent to the husband and 40 per cent to the wife;

   b)that the wife return to the husband a gold necklace and the husband’s wedding ring;

   c)costs.

4. At trial the wife relied upon the following documents:

   a)her financial statement filed 10 February 2017;

   b)her trial affidavit filed 10 February 2017;

   c)the affidavit of Ms C filed 10 February 2017;

   d)the affidavit of Ms D filed 10 February 2017;

   e)the affidavit of Mr D filed 10 February 2017.

5. The husband at trial relied upon:

   a)his financial statement filed 22 February 2017;

   b)his trial affidavit filed 23 February 2017.

A note about the evidence

1. There is some conflict between the evidence of the husband and the wife in terms of asserted contributions and arrangements within the household.

2. The Court has had the opportunity of observing both the husband and wife in their oral evidence and compares their evidentiary assertions to objective documentary evidence where possible.

3. The inescapable conclusion is that the husband has sought to be self-serving in his evidence and wherever possible deprecating of the wife as to her role both financially and non-financially within the household.

4. The wife was responsive and frank in her responses in oral evidence and she was supported in oral evidence by others.

5. Overall, where the evidence of the husband and wife conflict, the evidence of the wife is to be preferred.

Context

1. The wife, who was born in Country E, at trial was aged 50.

2. The parties commenced cohabitation in November 2000 and married in late 2001. The parties separated in early November 2014.

3. At the time of the commencement of their cohabitation they had minimal assets and were residing in rented premises.

4. The husband asserts that he had about $5,000.00 in savings and accumulated superannuation of about $40,000.00. He was not cross-examined on this issue.

5. The only child of the marriage, F, was born in 2003. He is now 14.

6. The wife has two children from a former relationship, Ms C and Mr G. Her daughter resided in the parties’ household from 2006 when she was 17 years of age until 2012. This child obtained part-time employment in 2008 and commenced tertiary studies. She assisted in household tasks including the care of the child, F, while she was part of the household.

7. The husband makes assertions as to his contributions to the child, Ms C when she was part of the household. As the child was 18 shortly after joining the household his asserted contributions can have little, if any, weight especially in the context of the household assistance rendered by the child.

8. The wife ceased work shortly before the child’s birth and returned to work when the child was aged about three months. The wife was assisted greatly by her mother in the care of the child after her return to work.

9. Both parties worked during the relationship. The husband at times worked shift work often leaving at 7.00 am in the morning and returning about 7.00 pm in the evening, as did the wife. The husband was at times unemployed and since 2005, when he left full-time employment, has only worked on a casual basis.

10. Overall, the parties’ contributions have been a balancing exercise in relation to their working hours, income earned and their respective availability to care for the child and undertake household and domestic tasks.

11. The parties’ incomes were applied variously to payment of household expenses and outgoings and subsequent to purchase of the matrimonial home to mortgage payments and property outgoings including utilities.

12. In 2005 the wife was required to depart Australia for immigration purposes, notwithstanding she had been sponsored to come to Australia by the husband, and to reapply for her permanent residence visa. She returned to Country E for the period between June and November 2005. During her absence the care of the then young child was shared between her mother and the husband.

13. She became an Australian citizen in 2008.

The home  

1. The matrimonial home at Suburb B was purchased in February 2009 for $421,000.00 plus purchase costs. The purchase was some eight years after the commencement of the parties’ cohabitation and they had pooled their respective savings at that time to fund the deposit and the balance of purchase price of about $413,000.00 was funded by way of a National Australia Bank mortgage. The parties later received a first home owner’s grant that was applied directly in reduction of the mortgage.

2. Subsequently, in 2015, the parties increased their mortgage borrowing, which by this time had been reduced to about $345,000.00, for the purposes of purchasing the car presently retained by the wife and to undertake renovations to the property. A second advance was secured for about $95,000.00.The overall borrowing was increased to about $420,000.00.

3. At times the parties had boarders living in the home.

4. The parties remained in occupation of the home after separation under the one roof in early November 2014 until 23 December 2015.

5. In 2015 there was an incident between the husband and wife as a consequence of which the husband has remained in sole use and occupation of the former matrimonial home from December 2015 for the almost two years until trial.

6. The wife has lived with her mother subsequent to separation for a period and in late 2016 moved to a rented two-bedroom home unit close to the child’s school where she pays $430.00 per week rent.

7. The matrimonial home has now been sold following the husband ceasing to make mortgage payments notwithstanding that he remained in occupation of the home to the wife’s exclusion since late December 2015.

8. As at about December 2016 the husband failed to make mortgage payments on the smaller supplementary loan. At that time the balance was $95,716.00.

9. He stopped payments on the larger interest only loan in May 2016 with the balance at that time $320,000.00.

10. As at the sale of the property the balances had increased to $337,133.00 and $97,716.00, an overall increase of $19,133.00 (Exh “D”).

11. The net proceeds of sale of $509,275.00 remain held in trust for the parties.

12. The husband retained the furniture and contents of the home on final separation and on sale of the home kept what he wanted with some remaining as part of the sale. He inexplicably abandoned the rest of the furniture and contents out on the kerb.

13. The husband failed to disclose that he has withdrawn $7,800.00 from his superannuation in June 2016.

Parenting orders

1. On 18 November 2016 the parties agreed to final parenting orders in relation to the child, F.

2. The child is in year seven in high school.

3. Those orders provided that the parties have equal shared parental responsibility for the child, that the child live with the wife and that the child spend time with the husband as agreed.

4. It is common ground that the child has spent little time with the father since final separation including no overnight time since December 2015.

The Motor Vehicle 1

1. The motor vehicle 1 was purchased for $24,499.00 from additional funds borrowed by the parties in 2015 referred to above. Subsequent to separation, the wife continued to use the vehicle.

2. In May 2015 the husband informed the wife that he had taken the car to a mechanic to be attended to. The motor vehicle has never been returned.

3. In January 2017 the wife spoke to the husband in relation to an assertion that he had sold the car to the mechanic for $16,700.00. The husband denied such was the case. The husband asserts that the vehicle was appropriated by the mechanic to whom it had been delivered. Surprisingly, the husband then chose to commence Local Court civil proceedings seeking delivery of the vehicle or damages in lieu. His claim asserts that the registration for the vehicle was fraudulently transferred by the defendant to himself and the vehicle was then sold by the defendant.

4. Surprisingly, the husband has not made a complaint to the Police as to what clearly is the fraudulent theft of his car.

5. Exh “F” evidences a sale of the car by a motor dealer on 20 June 2015 to one Mr H for $25,000.00 after being sold to the motor dealer by J Auctions on 12 May 2015. The ultimate purchaser from Victoria surrendered the NSW registration plates on 16 July 2015.

6. There is no evidence as to how the sale proceeds from the auction house were disbursed.

7. The husband’s evidence must be considered with great suspicion. It is to be inferred that, in fact, it was him that procured the sale of the vehicle at auction and that he received the proceeds of sale. His “mechanic” is readily identified in his Statement of Claim but no attempt was made to procure his evidence by subpoena.

8. Otherwise, the husband contends that he has an action for damages. That claim will be considered a financial resource of the husband’s.

The husband’s assertions as to overseas remittances

1. The husband asserts that in the early period of their relationship he provided funds from his income on a regular basis to the wife and that she remitted those funds through her employer, K Pty Ltd, for the support of the two children from her previous relationship in Country E.

2. The husband asserts that these funds were by way of loans made to the wife over the period from December 2000 until November 2008 and in total amount to $140,000.00.  Apart from the documents referred to below he produces no documentary evidence supporting his assertion of such largess in favour of the wife’s children.

3. In the context of the wife’s visa difficulties referred to above, the husband was her nominator for the purposes of an Australian Partner Visa that would facilitate the wife living in Australia. He represented to the relevant Department that the wife’s two children living in Country E were dependent upon him for financial support and as a “father figure”. It appears that in support of his application for a partner visa for the wife he and the wife provided to the Department documents purportedly evidencing money transfers from Australia to Country E for the purposes of providing support for the wife’s two children through her brother, Mr D, with whom the children were residing.

4. The partner visa application was rejected in a letter dated 3 September 2002.

5. The parties sought to review that determination in the Migration Review Tribunal. In December 2003 the Tribunal decided that the decision to reject the application for a partner visa should be affirmed. It is of note that in the context of the original application the parties provided a letter dated 29 June 2002 from the wife’s then employer, K Pty Ltd, detailing monthly remittances from November 2000 to April 2002 to Country E allegedly in support of the contention that the parties were providing financial support for the wife’s children in Country E. The total of the alleged remittances was about $22,000.00. There is some suspicion that the document was procured for the purpose of the immigration proceedings and is not a true record of what it purports to be.

6. The wife concedes that about $6,000.00 had been remitted overseas for the children for birthdays and gifts and that, otherwise, her mother had sent some of her own money to the children. The wife’s evidence is supported by her brother.

Property adjustment

1. The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford [2012] HCA 52 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman [2014] FamCAFC 91 and Scott & Danton [2014] FamCAFC 203.

2. The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order. 

3. Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.

4. There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4).

5. The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.

6. In many cases, this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship. Such is the case in this matter.

7. In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to same. Here the wife seeks an order for adjustment of property as does the husband.

8. Both parties concede that it would be unjust and unfair to leave property rights intact.

9. Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). The Court must then consider s 79(4)(d) to (g), in particular, the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).

10. The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.

The asset pool

1. The parties provided an updated draft balance sheet at the commencement of the trial (Exh “A”). Subsequently, that pool was briefly addressed in submissions. There was substantial agreement.

2. The balance sheet was as follows:

   Joint              Sale funds from Suburb B                   $ 509,275.00

   Husband        Motor vehicle 1 retained by him        $ (18,000.00)

   Husband        Van  $   (2,500.00)

   Husband        Credit Union Accounts  $    1,000.00

   Wife              Motor vehicle 2  $   (2,500.00)

   Wife              St George Bank accounts  $    1,300.00

   Husband        IOOF Superannuation  $ (52,920.00)

   Wife              Australian Retirement Fund                $  46,405.00

   Liabilities

   Husband        Credit Union Visa  $    2,500.00

   Wife              St George Bank Visa  $    1,600.00

3. Items in brackets were in dispute.

4. As to the value of cars retained by the parties there is no evidence as to value. Accordingly, the value asserted in the parties’ financial statements will be adopted.

5. As to the motor vehicle 1 car discussed above, the circumstances relating to the vehicle will be considered in the context of s 75(2) factors.

6. As to the husband’s superannuation, he concedes drawing $7,800.00 from his superannuation in 2016. That sum will be notionally added back to his present balance.

7. As to credit cards, neither party adduced evidence suggesting that the present debt should be included in the pool to the effect that the other party would share some liability, therefore they will be omitted.

8. The resultant pool for division is as follows:

   Joint              Sale funds from Suburb B                   $ 509,275.00

   Husband        Van  $       800.00

   Husband        Compass Credit Union Accounts       $    1,000.00

   Wife              Motor vehicle 2  $    1,000.00

   Wife              St George Bank accounts  $    1,300.00

   Husband        IOOF Superannuation  $  60,720.00

   Wife              Australian Retirement Fund                $  46,405.00

   $ 620,500.00

Contributions  

1. In assessing contributions the Full Court said in Harris & Harris (1991) FLC 92-254:

   …the task of the court in proceedings under section 79 (and thus s90SM(4)) is not akin to an accounting exercise. To borrow a phrase used by McClelland  J in Davey v Lee (1990) DFC 95-084; (1990) 13 Fam LR 688 at 689 in relation to section 20 of the De Facto Relationships Act 1984 (NSW):

   ''the Court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind”.

2. In Kessey & Kessey(1994) FLC 92-495 at 89,151 the Full Court made clear that ultimately all that is necessary is to evaluate the weight that should be given to each party’s contributions relative to the contributions of the other party:

   “... In many – indeed probably in most – property settlement cases the Court has to evaluate and assess contributions to property in the absence of precise valuations of the contributions in question. Indeed, where the contributions to property are indirect or non-financial, precise valuation is impossible, and even where the contributions are direct or financial so that a valuation might be provided, other factors (not capable of precise mathematical statement) may well have eroded the initial value of such contributions. In a case such as the present, it is not necessary to arrive at precise mathematical valuations of the parties’ contributions - all that is necessary is to evaluate the weight that should be given to each party’s contributions relative to the contributions of the other party.”

1. Years later in Lovine & Connor and Anor (2012) FLC 93-515, the Full Court said:

   42.As part of the process of ultimately determining just and equitable orders under s 79 there is included a complex of discretionary assessments and judgments of many components of contribution, only some of which are capable of measurement in money terms and then often only in historical, rather than present, money terms. Any dictate to the effect that in the course of assessment each disparate component part or kind of contribution must be assigned a discrete and identifiable value or percentage is antithetical to the nature of the discretion involved.

2. The husband came into the relationship with modest assets including some superannuation. Thereafter the parties saved and then purchased the home at Suburb B.   They both worked and subject to that commitment attended to their obligations as child carers and homemakers. From 2005 the husband’s income varied but together the parties maintained the mortgage and their household.

3. After separation the husband has had the benefit of occupation of the home for a significant period whilst the wife and child have been in other accommodation. The husband defaulted in mortgage payments thus increasing the sum payable on sale. The husband has had limited engagement with the child and the primary burden of the child and his financial support had fallen to the wife.

4. Overall, it is considered that contributions to date of trial should be regarded as slightly favouring the wife 52.5 per cent/47.5 per cent.  This creates a disparity of about $31,000.00 between the parties.

Section 75(2): relevant considerations

1. The wife is aged 50 and asserts no relevant health circumstance. The husband is aged 52 and has no relevant health issues.

2. The husband asserts that he is casually employed earning about $15,000.00 per annum, not having had full time employment for about two years before trial. His taxable income for 2016 was $23,811.00 (Exh “H”) but in the previous year it was $62,450.00.

3. He proffers no acceptable explanation for not exercising his capacity for full time work. He also receives government benefits. There is significant circumspection as to his evidence as to employment.

4. The wife is in full time employment earning about $69,000.00 per annum.

5. The property and financial resources of the parties are considered above.

6. The wife will have the ongoing primary care of the child, F now aged 14. The husband has limited engagement with the child.

7. The husband, it appears by reason of his limited income, receives some government benefits.

8. The husband pays child support at a minimal level of about $27.00 per week by reason of his low income. It is not apparent that the wife will expect any increase in that payment in the foreseeable future.

9. The husband has retained the Opel car in what must be regarded as suspicious circumstances. If his evidence is to be accepted he has a right to compensation for the wrongful conversion of the car by the defendant in the current civil litigation.    

10. Considering the above, it is appropriate that there be a further 2.5 per cent adjustment to the contribution based entitlements in favour of the wife. This creates a disparity of about $31,000.00 between the parties.

Overall

1. Overall, the small pool is thus to be adjusted as to 55 per cent to the wife and 45 per cent to the husband. This equates to a disparity of about $62,000.00 between the parties.

2. The wife’s entitlement is thus $341,275.00.

3. She has:

   Wife              Motor vehicle 2   $    1,000.00

   Wife              St George Bank accounts  $    1,300.00

   Wife              Australian Retirement Fund                $  46,405.00

   $  48,705.00

4. She is entitled to a further sum of $292,570.00 from the trust funds with the balance then payable to the husband.

5. The husband will retain the balance of the funds and his other assets and financial resources identified above.

6. Such an outcome in all the circumstances is just and equitable.

7. Orders will be made accordingly.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 14 September 2017.

Associate:

Date:  14 September 2017