Bensaid & Fasih
[2021] FamCA 512
•16 July 2021
FAMILY COURT OF AUSTRALIA
Bensaid & Fasih [2021] FamCA 512
File number(s): PAC 2686 of 2009 Judgment of: FOSTER J Date of judgment: 16 July 2021 Catchwords: FAMILY LAW – PROPERTY – property adjustment – where only asset remaining for division is the husband’s half interest in a property as tenants-in-common – where discussion of applicable principles – where contributions assessed as equal – where adjustment in favour of wife by reason of s 75(2) considerations. Legislation: Family Law Act 1975 (Cth) ss 75(2), 79, 102NA Cases cited: Bevan & Bevan [2014] FamCAFC 19
Chapman & Chapman [2014] FamCAFC 91
Figgins & Figgins [2002] FamCA 688
Horrigan & Horrigan [2020] FamCAFC 25
Russell & Russell (1999) FLC 92-877
Scott & Danton [2014] FamCAFC 203
Stanford v Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120
Number of paragraphs: 90 Date of last submission/s: 5 May 2021 Date of hearing: 3 and 4 February 2021 and 29 and 30 March 2021 Place: Parramatta Counsel for the Applicant: Mr Pickering Solicitor for the Applicant: H K Husseini & co Counsel for the Respondent: Mr Cairns Solicitor for the Respondent: Crimcorp Defence Lawyers Pty Ltd Intervener – unrepresented litigant: The intervener attended in person ORDERS
PAC 2686 of 2009 BETWEEN: MS FASIH
Applicant
AND: MR BENSAID
Respondent
MR WARDI
Intervener
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
16 JULY 2021
THE COURT ORDERS THAT:
1.Within six weeks from this date the second respondent pay to the wife the sum of $121,000 and to the husband $99,000 less any Westpac Bank mortgage balance in excess of $380,000.
2.In consideration of such payments the husband do all things necessary to transfer his interest in the property at B Street, Suburb D to the second respondent; and
3.Concurrently with such transfer the second respondent procure a discharge or refinance of the present mortgage encumbrance in favour of the Westpac Bank.
4.In default of the payments as provided for in Order 1, the husband and second respondent forthwith do all things necessary to sell the property at B Street, Suburb D for the best price reasonably obtainable and upon sale the proceeds be paid as follows:
(a)in payment of selling costs including agent’s commission and legal expenses;
(b)in payment of one half of the balance then remaining to the second respondent;
(c)in discharge of the mortgage in favour of Westpac Bank provided always that the husband shall from his share of the proceeds of sale pay any mortgage balance in excess of $380,000;
(d)in payment of 55 per cent of the balance then remaining to the wife;
(e)in payment of the balance then remaining to the husband less any sum to be paid by the husband in relation to any mortgage balance over $380,000.
5.Liberty to apply as to implementation or enforcement of these orders.
6.The matter be removed from the active pending cases list.
7.All subpoenaed documents produced and all exhibits tendered in these proceedings, be returned at the expiration of one calendar month unless an appeal is lodged.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bensaid & Fasih has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:
The application for determination is an application for property adjustment orders filed by the applicant wife in the Federal Circuit Court of Australia in April 2015. In that application the applicant wife sought leave to commence property settlement proceedings out of time and sought an order that the husband transfer to the wife his one half interest in the real estate property known as B Street, Suburb D and that there be a superannuation splitting order of 50 per cent of the husband’s entitlement in favour of the wife.
Relevantly, the parties were married in 1970 and a divorce order was made on 12 October 2009, some years before the wife commenced property proceedings seeking leave to commence out of time. The divorce was granted notwithstanding that both parties assert final separation in 2001.
The proceedings
On 23 February 2016 an order was made granting the wife leave to commence property proceedings out of time. The husband was then ordered to file his Response to the wife’s application for property settlement orders.
Subsequently on 6 June 2016, the now second respondent, Mr Wardi, the parties’ son, was granted leave to intervene in the proceedings by reason of his assertion that he was the sole owner in law and equity of the property at Suburb D.
On 20 September 2017 proceedings were transferred to this Court by reason of the asserted complexity of the issues for determination.
Subsequently, the matter was before a registrar on a number of occasions with the parties failing to comply with various directions as to valuation, disclosure and discovery and the filing of points of claim and defence thereto in relation to the equitable relief sought by the second respondent.
Otherwise, on various occasions solicitors were instructed and then ceased to act for the parties.
On 23 May 2019 the proceedings were listed for judicial case management. On that date directions were made for the matter to proceed to final trial and proceedings were listed for a compliance check before a registrar on 15 August 2019. At the compliance listing the husband had not filed his trial affidavit and in circumstances where he was unrepresented at the compliance listing and where there were significant allegations of family violence, proceedings were adjourned for further judicial case management to 22 October 2019 to consider whether an order should be made under s 102NA(2) of the Family Law Act 1975 (Cth) (“the Act”), that the husband be represented by Legal Aid NSW at the final property hearing. Proceedings were remitted to the list clerk for allocation of trial dates and the matter was listed for hearing for three days commencing 21 July 2020.
On the first day of the hearing the husband and wife both appeared unrepresented. He had failed to make appropriate contact with the legal aid authorities to procure his representation. Orders were made again requesting that both the husband and wife be represented pursuant to the provisions of s 102NA(2) of the Act and proceedings were further adjourned for final hearing for three days commencing 3 February 2021.
Prior to the further hearing dates, proceedings were listed for judicial case management on 2 October 2020. It was noted on that date that both the husband and wife had made application for legal representation through Legal Aid NSW. Directions were made for the husband and wife to file further affidavit material by no later than 4 December 2020.
On 8 December 2020, the proceedings were again before the Court for judicial case management. Neither the husband nor the wife had complied with directions for filing affidavit material and the time for them to do so was extended to 22 January 2021 and the proceedings were adjourned for hearing commencing 3 February 2021.
On 3 February 2021 the husband appeared again unrepresented, his solicitor having been granted leave to withdraw. On 4 February 2021 the hearing continued with the husband then represented. On that day the Court made the following orders and directions:
1.Leave is granted to the Respondent husband to file in Court his trial affidavit sworn 21 January 2021 and to rely on that affidavit for the purposes of the hearing.
2.The proceedings be adjourned for hearing part-heard for three (3) days commencing 10.00 am on Monday, 29 March 2021.
3.The costs of the Applicant wife thrown away by reason of the adjournment be reserved as against the Respondent husband.
4.The parties are granted leave to issue such subpoena as they consider relevant to the issues before the Court with such subpoena to be returnable by no later than Friday, 19 March 2021.
5.Leave is granted to the parties to have photocopy access to all financial documents produced on subpoena in these proceedings.
6.The parties are not to file any further affidavit in the proceedings without leave of the Court and in respect of any such leave sought the parties may relist the matter on short notice by application to the Court in chambers.
7. The hearing date of 5 February 2021 is vacated.
On 29 March 2021 no interpreter was available for the wife. The matter proceeded to hearing on 30 March 2021 on which day the Court made orders and directions as follows:
1.The Applicant file and serve written submissions in support of the orders sought by her by no later than the close of business on Friday, 23 April 2021 with those submissions to include:
(a) a short chronology as to relevant evidence;
(b) an overview of contentions as to contributions s 75(2) factors;
(c) case law relied upon; and
(d) a short minute of orders sought.
2.The First Respondent husband and the Second Respondent file and serve written submissions by no later than the close of business on Friday, 7 May 2021 with the submissions of the First Respondent husband to include:
(a) a short chronology as to relevant evidence;
(b) an overview of contentions as to contributions s 75(2) factors;
(c) case law relied upon; and
(d) a short minute of orders sought.
3.The submissions of the Second Respondent to include his contentions as to his interest in the subject property at B Street, Suburb D to include:
(a) a short chronology as to relevant evidence;
(b) case law relied upon; and
(c) a short minute of orders sought.
4.The Applicant file any short submissions in reply by no later than the close of business on Friday, 14 May 2021.
5.Subsequent to completion of submissions, judgment will be reserved to chambers.
6. The hearing date of 31 March 2021 is vacated.
Following receipt of submissions judgment was reserved on 20 May 2021.
At final trial the wife relied upon the following documents:
(a)her Second Amended Initiating Application filed 13 August 2019;
(b)her financial statement filed 13 August 2019;
(c)her primary trial affidavit filed 13 August 2019.
The wife was not cross-examined on her affidavit.
At trial the wife sought orders that, in summary, provided:
(a)that the husband transfer to her his interest in the Suburb D property;
(b)that concurrently with the transfer she and the second respondent refinance the mortgage secured on the property into their names.
At trial the husband relied on:
(a)his Response seeking that the wife’s application be dismissed;
(b)his trial affidavit filed with leave on 4 February 2021;
(c)his financial statement filed 28 May 2015.
At trial the second respondent/intervener relied on:
(a)his Second Amended Response filed 29 July 2019;
(b)his trial affidavit filed 29 July 2019;
(c)the affidavit of Mr E Bensaid filed 29 July 2019.
In substance, the second respondent sought a declaration that the husband held his half interest in the Suburb D property on trust for the second respondent.
Context
The wife is aged nearly 70 and in poor health. The husband is aged nearly 73.
The intervener/second respondent is the second eldest son of the parties and is aged nearly 47.
The parties married in 1970, migrated to Australia with their children in April 1996 and separated in early February 2001. At the time of separation the husband was removed from the matrimonial home by the police.
As referred to above, the parties were divorced in 2009. The divorce was obtained by the husband as applicant without the wife’s knowledge.
There are six children of the parties’ relationship, who are now all adults.
Background
At the commencement of cohabitation the husband and wife had no assets of any significant value save for some items of gold jewellery gifted to the wife by her mother. The wife asserts that the items of jewellery would have a value of about $80,000 at present. The wife asserts that the husband has retained these items of jewellery since 2000. The husband now asserts that the jewellery has been stolen.
At that time the husband was in the Country F armed services. He remained in the armed services until about 1994 when he and the family fled Country F to Country G before migrating to Australia.
Subsequent to marriage the wife did not work and was responsible for the home and the primary care of the children. Whilst in the army, the husband would only be home for a few days each month.
Subsequent to marriage the wife’s mother purchased land for the husband and wife in City H, Country F. The property was sold some time later with the husband receiving 50 per cent of the sale proceeds and the balance being paid to the wife’s mother.
In about 1977 the husband purchased land in City J, Country F and a building was constructed on the property. In 1994 this property was transferred to the husband’s cousin Mr K Bensaid. The property was later sold in 2013 with the proceeds of sale retained by the husband with which he purchased a home at City L in Country F.
The wife’s relationship with the husband was characterised by coercion, financial control and significant physical abuse, including serious assaults including sexual assault. As a consequence of the husband’s conduct the wife suffers ongoing depression and anxiety and has been attending upon a psychologist since 2009. It was the husband’s conduct that resulted in him being removed from the matrimonial home by the police in February 2001. The wife’s assertions as to the husband’s conduct are well supported by the second respondent.
Subsequent to migrating to Australia the family lived on government benefits notwithstanding that the husband worked as a tradesperson with a number of employees from arrival until separation in 2001 and thereafter remitting funds to Country F. The wife, otherwise, asserts that he retained a business in Country M (referred to by the husband in an earlier affidavit as a “small business”) and other business interests in Country F and Country N. The second respondent asserted that the husband received regular remittances from Country M.
From 1999 the husband appears to have lived at times with his eldest son, then with his girlfriend Ms O from 2001 until 2013 in her public housing accommodation then with another woman, Ms P, until the hearing in her public housing accommodation. He has had a poor relationship with his children since 2001.
Subsequent to separation the wife received virtually no child support from the husband as he commenced to receive Centrelink unemployment benefits in early 2009 that continued until August 2013. His Centrelink benefits then became the Aged Pension when he was 65 years of age. His pensions were the only payments into a discrete NAB account with funds withdrawn in cash the same day as paid. His entitlement to these benefits is circumspect after 2013 by reason of his half interest in the investment property at Suburb D and, as he asserts, his money transferred in from Country F.
Notwithstanding other dealings that were inconsistent with that being his only source of income other regular cash deposits were paid into his CBA account.
In 2005 the wife travelled to Country F with her three sons and during their time in Country F the sons worked in the husband’s factory. The second respondent makes a similar assertion.
Suburb Q property
After separation and in early 2002 the husband purchased a property situated at Suburb Q in Sydney for the sum of $255,250. The husband provides no detail as to the mortgage sum borrowed to purchase the property.
The wife asserts that the husband used the proceeds of sale of her jewellery as a contribution towards the purchase of the property. The husband asserts he had saved about $30,000 from income and had received a workers compensation verdict of about $10,000 whilst, it appears, he was living with both the wife and Ms O. He also asserts that he received the first home buyers grant. It is asserted by him that Ms O also contributed $15,000 to the purchase. She did not give evidence nor was her absence explained. It may be inferred that her evidence might not assist the husband.
In about 2003 the husband sold the Suburb Q property for $345,000, retaining proceeds of sale. The property increased in value about $90,000. By reason of his assertion as to his funds contributed to the purchase, the inference is that his net proceeds of sale would have been about $130,000, not the $40,000 asserted by him. The husband asserts that he invested some of the funds in a CBA Term Deposit after sale.
The husband travelled to Country F in 2004 and returned to Australia in 2009. Whist in Country F he sold his property there receiving about $50,000US. He asserts that he dissipated those funds on living expenses including overseas travel with his then girlfriend.
The Suburb D property
In late 2012 the husband’s relationship with the second respondent recommenced and the husband was invited to live with his son.
In May 2013 the husband and the second respondent purchased the property at B Street, Suburb D as tenants-in-common in equal shares. The property was purchased for the sum of $881,000. The 10 per cent deposit on exchange of contracts was $88,100. The settlement statement addressed to both the husband and second respondent reveals a net mortgage advance of $399,694 on settlement with “funds received from you” of $430,029. With purchase costs, the total purchase price was $917,823.
The husband says in his trial affidavit that he had a deposit of $45,000 from accumulated savings from working as a plasterer and says that he, otherwise, borrowed $400,000 on mortgage for the balance of his 50 per cent overall contribution. His later oral evidence is that he had $30,000 on term deposit from the proceeds of the Suburb Q property and a further $18,000 that “I had on me”. Other funds deposited to his CBA account, he asserts, were from his funds in Country F or “from my cousins”.
The second respondent, otherwise, asserts that the deposit of 10 per cent ($84,500) was paid by him. Yet on 11 March 2013 the husband’s CBA bank account shows a cheque drawn on the account of $44,000 following deposits of $30,000 on 12 February 2013 and $18,000 on 7 March 2013. The $30,000 deposit was from the redemption of a $30,000 Term Deposit held by the husband until withdrawn on 12 February 2013. The husband, otherwise, withdrew $9,200 from his account on 16 May 2013, the day prior to settlement, in all probability a payment towards the final sum needed to settle the purchase.
The second respondent says he has no knowledge as to where the husband got those funds and does not assert they are his, as at that time he held a Westpac account to which his income working on commission selling vacuum cleaners and working part-time in security was deposited.
At the time of purchase of the Suburb D property the second respondent owned his home at R Street. The second respondent, the husband asserts, applied his cash funds for his share of the purchase drawn from a mortgage of $400,000 secured over his R Street property. At the time of purchase of the Suburb D property, the husband and second respondent held a joint account with the Westpac Bank opened on 10 May 2013 (Exh “K”). The account reveals four deposits of $100,000 each on 15 May 2013 just before settlement of the purchase and several smaller deposits on 16 May 2013 taking the total balance to $430,050. The sum of $429,999 was withdrawn on 17 May 2013 to settle the purchase. Later, on 15 July 2013, the husband signed a direct debit authority authorising mortgage payments to be deducted from his CBA account.
The Westpac loan application signed by the husband and the second respondent and other Westpac documents (Exh “K”) reveal:
(a)That the second respondent was working in security and that the husband was not working.
(b)That the property at R Street was estimated to have a value of $600,000 and was subject to a mortgage with minimal balance but with a drawdown facility available of $300,000.
(c)That the second respondent’s income was net $4,322 per month.
(d)That the husband and second respondent estimated rental of their Suburb D property to be $3,800 per month. A formal estimate provided to the bank supported this.
(e)That the husband had $45,000 at bank.
(f)That the bank assessment of valuation reported seven bedrooms and two kitchens in the property.
The second respondent’s R Street property was purchased in August 2006. It has six bedrooms, with the second respondent asserting that he has friends and relatives occupying the property. The second respondent has previously been fined for operating an illegal boarding house. He ingenuously asserts that the present occupants only pay a contribution to property outgoings and that he collects no rent.
Coincidentally, the Suburb D property at purchase had six bedrooms and after purchase the husband and second respondent added a further six bedrooms. They were required to demolish those additional bedrooms by the local authority. The second respondent asserts that the property is occupied by him and three others who “help pay the bills”. He rejects the assertion that he receives rent.
The Westpac mortgage statements for the Suburb D property (Exh “G”) for the period from May 2013 to May 2018 clearly evidence mortgage payments paid by the husband after December 2013. In this period the second respondent asserts he paid into the mortgage about $7,000.
At the time of purchase, the second respondent says, that a Deed of Trust was signed by the husband declaring that the husband held the one half share of Suburb D in trust for the second respondent. The husband denies the authenticity of the alleged Deed and says he never signed such a document. The husband asserts that he undertook renovations and improvements to the property after purchase. The property was used as a share house and rental payments were to be in part applied to mortgage payments and in part paid to the second respondent. Funds were managed by the second respondent. The husband complains that from 2014 he received no funds from the second respondent and has paid the mortgage payments from his own funds. Otherwise, neither he nor the second respondent ever disclosed to the taxation authority the income derived from the property. The second respondent asserts that the husband lived in the property for a time with 12 tenants. The rent was applied to the mortgage payments.
Exhibits “D” and “H” comprise the husband’s CBA Bank account (…88) statements for the period from January 2013 to May 2019. The account reveals significant cash deposits and regular direct debit payments to Westpac for the mortgage payments for the Suburb D property. Funds required to meet mortgage payments equate to the entirety of his aged pension payments. When pressed in oral evidence, the husband asserted that the cash deposits over the years were from his money he initially transferred overseas to the S Bank in Country T, presumably in part from the sale proceeds of the Suburb Q property, or otherwise from “cousins” that he had lent money to.
Documents produced by V Bank (Exh “J”) reveal inward transfers of funds to the husband or his partner Ms O. In 2013-2014 these transfers totalled about $22,000. The husband acknowledged transfers totalling $25,000 cash from his cousin and one of $19,000US. These transfers remain unexplained save for the husband asserting that they were transfers from “relatives”.
In 2015, following an incident at which the police attended, the husband was excluded from the home. The husband asserts that the second respondent continues to retain the income from the property. Yet the husband’s account continues to show regular cash deposits and continuing mortgage payments through to June 2018.
The Suburb D property has a present value of $1.2 million and is subject to a mortgage of about $392,500. The last mortgage payment by the husband was in May 2020 with no mortgage payments since then. The second respondent acknowledges that the husband paid the mortgage payments from late 2013 to the date of the last payment. In May 2020 the mortgage balance was about $380,000 after the husband’s last payment. He gives no evidence as to why mortgage payments stopped. The accumulating arrears have eaten into his equity without explanation. It is appropriate to consider the mortgage balance to be $380,000 with the husband to be responsible for any sum above that figure.
The Trust Deed
Having regard to the evidence before the Court there is a strong inference that the trust deed, even if signed by the husband, is a sham and designed to deceive the revenue and Centrelink authorities as to the husband’s real interest in the property so that he would maintain his full age pension entitlements.
However, during final oral submissions the second respondent clarified the orders sought by him. It was his position that he sought to retain his half interest in the Suburb D property unencumbered in that the mortgage security would be a charge as against the interest of the husband. He thus abandoned his assertion that the husband held his interest in the property in accordance with the “deed”. Such was the husband’s contention in his evidence that he owned a half share and the mortgage was to fund the balance of his half share at the time of purchase.
Notwithstanding the ultimate concession by the second respondent, it must be said that the evidence such as it is would have led inexorably to the same conclusion.
The wife’s circumstances
The wife is presently in receipt of an aged pension of about $350 per week. She resides in a two-bedroom Department of Housing accommodation and pays rent of about $107 per week.
The wife is in poor health and on a regime of medication to manage her health circumstances. In December 2016 she suffered a stroke and was hospitalised for about two months. She suffers from ongoing significant depression, vertigo and nausea.
The husband’s circumstances
The husband is on an aged pension. He is in poor health. He says he is living with relatives and friends.
He has no relationship with his children.
Discussion: Approach to Property Adjustment
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.
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.
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.
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). The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.
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.
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.
It would, in some circumstances, be unjust or unfair to leave property rights intact where there is common ownership and discrete assets are sought by each. Otherwise, a consideration of s 79(4) factors as discussed below reveals it would be unjust or unfair to leave the parties property rights as they are.
Section 79(4) of the Act requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c) of the Act. The Court must then consider s 79(4)(d) to (g) of the Act, in particular, the subjective considerations as to the parties by having regard to the provisions of s 75(2) of the Act in so far as they are relevant (s 79(4)(e) of the Act).
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.
At the conclusion of the hearing the Court directed that the parties provide any final submissions in writing. Submissions were received from the applicant wife and the second respondent.
The second respondent sought the opportunity to acquire the interest of the husband in the property within one month of final orders. Such would be a practical solution so as to facilitate there being funds available to meet any payment ordered to the applicant and or the respondent.
The wife contended for orders that would realise the husband’s half interest in the property subject to the Westpac mortgage encumbrance. Such approach is the same as that contended for by the second respondent. It was further contended that the husband has had the use and benefit of other funds being:
(a)The proceeds of sale of his Suburb Q property as discussed above, probably in the order of about $130,000, some of which may have found its way into the deposit paid on the Suburb D property;
(b)The sale proceeds of his property in Country F that was acquired during the marriage that he asserts was about $40,000US to $50,000US;
(c)Other funds received by him that remain substantially unexplained that may have derived from business activities in Country F and maybe elsewhere.
The oral evidence at trial of the husband must be treated with significant circumspection.
The asset pool
The only asset remaining for division is the husband’s half interest as tenants-in-common. The property is valued at $1.2 million with the husband’s half interest thus having a value of $600,000 and subject to a present mortgage of about $392,000. As discussed above, it is to be regarded as $380,000 with the husband responsible for any sum above that figure. His equity is thus about $220,000.
Contributions
As the Full Court said in Horrigan & Horrigan [2020] FamCAFC 25:
35.It is well established that an assessment of contributions is not a mathematical exercise, but rather involves the identification and assessment of all of the parties’ respective contributions, in a holistic way across the course of the relationship and in the post separation period to the point of assessment. (Pierce v Pierce (1999) FLC 92-844; Singerson & Joans [2014] FamCAFC 238; Dickons v Dickons (2012) 50 Fam LR 244 and Marsh & Marsh (2014) FLC 93-576; Lovine & Connor and Anor (2012) FLC 93-515 at [39]-[42]).
…
48.In any event, Jabour and many of the authorities it traverses, involved a long relationship of over 24 years. Inevitably the length of the relationship under consideration informs the holistic assessment of contributions.
It is also trite to observe that contributions need not have any nexus to the present asset pool: Figgins & Figgins [2002] FamCA 688. Although in the present matter, the husband acquired the Suburb Q property shortly after separation with source of funds asserted to be savings and a workers compensation payout.
The parties had six children. After a cohabitation of about 31 years they separated, it appears, in 2001. At that time the youngest children were only 17 and 12 years of age. The wife was throughout the marriage and after separation the primary caregiver for the children in her care, with virtually no financial assistance from the husband. She was the primary homemaker in circumstances where for much of the early years of the marriage the husband was in the Country F armed services and absent from the home for lengthy periods at a time and where the relationship was one overshadowed by the husband’s aberrant conduct.
The inference is that after the family arrived in Australia the husband was self-employed and retained some business interests overseas. Notwithstanding, he remained on government unemployment benefits for years and the aged pension from aged 65 to hearing, in circumstances where he owned the investment property at Suburb D and deposited significant cash sums to his mortgage with Westpac. His entitlement to those benefits must be questionable.
Overall, it is proper to assess the parties’ contributions as equal. The wife would be entitled to $110,000.
Section 75(2) considerations
The Court is required to consider the various relevant factors as set out in s 75(2) of the Act:
(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
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; 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 (3), 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)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(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
(ha)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 marriage 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 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
Relevantly, both parties are now in their senior years and in poor health. Both are in receipt of the aged pension. The wife is in public housing and the husband’s living circumstances are not clear save that he resides with his partner.
The husband has had the benefit of part of the funds from the Suburb Q sale and the proceeds of sale of his property in Country F as referred to above.
Otherwise, there is doubt as to the veracity of the husband’s evidence as to other financial resources available to him.
The property pool is small.
The wife contends that there should in all the circumstances be a further adjustment in favour of the wife of five per cent, leading to a disparity of about $22,000 between the parties. It is appropriate that there be an adjustment of five per cent in favour of the wife.
Overall
There will be orders facilitating the second respondent acquiring the interest of the husband in the subject property in consideration of a payment of $220,000, with that payment to be as to $121,000 to the wife and $99,000 to the husband, with the husband’s sum to be less any mortgage balance over $380,000.
Concurrently with the payments, the second respondent shall discharge or refinance into his name the present mortgage in favour of the Westpac Bank. In default of the payments, within six weeks the property shall be sold with the proceeds divided as to one half to the second respondent and one half less the Westpac mortgage payout to the wife as to 55 per cent and the husband as to 45 per cent.
Orders will be made accordingly.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Foster. Associate:
Dated: 16 July 2021
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