Bilic & Bilic
[2022] FedCFamC2F 1234
Federal Circuit and Family Court of Australia
(DIVISION 2)
Bilic & Bilic [2022] FedCFamC2F 1234
File number(s): SYC 6206 of 2018 Judgment of: JUDGE MORLEY Date of judgment: 12 September 2022 Catchwords: FAMILY LAW – property – application for adjustment of property pursuant to section 79 – short marriage – overwhelming contributions by Husband – payments by Wife to Husband – dispute about effect of those payments – Court finds payments amounted to ‘board’ rather than contribution to mortgage repayments – Court finds it is not just and equitable to make an order for the adjustment of property. Legislation: Family Law Act 1975 (Cth) ss 75, 79, 79A, 90XZD, 117. Cases cited: Anson & Meek [2017] FamCAFC 257
Chancellor & McCoy [2016] FamCAFC 256
Dickons & Dickons [2012] FamCAFC 154
Fielding & Nichol [2014] FCWA 77
Fields & Smith [2015] FamCAFC 57
Fontana & Fontana [2018] FamCAFC 63
Grier & Malphas (2017) 55 Fam LR 107
Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395
Holland & Holland [2017] FamCAFC 166
Logan & Logan [2013] FamCAFC 151
Perras & Perras [2021] FamCAFC 109
Stanford & Stanford (2012) 247 CLR 108
Division: Division 2 Family Law Number of paragraphs: 189 Date of last submissions: 7 May 2021 Date of hearing: 15 February 2021 Place: Sydney Counsel for the Applicant: Ms Kaiti Solicitor for the Applicant: Lovemore Lawyers Counsel for the First Respondent: Ms Rusiti Solicitor for the First Respondent: Synergy Legal Solicitor for the Second Respondent: Litigant in Person ORDERS
SYC 6206 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BILIC
Applicant
and: MR BILIC
First RespondentAND: MS A BILIC
Second Respondent
order made by:
JUDGE MORLEY
DATE OF ORDER:
12 SEptember 2022
THE COURT ORDERS THAT:
1.The Amended Initiating Application filed by the Applicant Wife on 5 April 2019 is dismissed except in relation to order 8 in relation to costs.
2.Should either party seek to press the costs application contained in their moving document, that party is to file and serve:
(a)A minute of order setting out the quantum of costs sought (including the basis for that quantum);
(b)Any affidavit/s or evidence in support of the application; and
(c)Written submissions in support of the costs application,
by no later than 4:00PM on 30 September 2022.
3.Any written submissions in reply to any costs application are to be filed and served by no later than 4:00PM on 14 October 2022.
4.All applications in relation to costs only are adjourned to Chambers on 17 October 2022.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Bilic & Bilic has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY:
Introduction
These are final property settlement proceedings between the Applicant Wife, Ms Bilic (‘the Wife’), the Respondent Husband, Mr Bilic (‘the Husband’), and the Second Respondent, the Husband’s mother, Ms A Bilic (‘the Second Respondent’).
The proceedings were commenced by the Wife filing an Initiating Application on 27 September 2018, to which the Husband filed a Response on 13 November 2018. The Second Respondent was added by an Amended Response filed by the Husband on 18 June 2019 pursuant to leave granted in orders made 8 April 2019. The Second Respondent filed her response on 29 June 2020. The Second Respondent was added as a party in consequence of her co-ownership as a joint tenant with the Husband of the only real property forming part of the matrimonial asset pool in issue between the parties.
The final hearing was originally set down for 4 June 2020, but that date was vacated due to the SARS-Cov-2/COVID-19 pandemic and the final hearing took place on 15 February 2021.
The Wife was represented by Ms Kaiti of Counsel.
The Husband was represented by Ms Rusiti of Counsel.
The Second Respondent appeared on her own behalf.
At the conclusion of the evidence, directions were made for the filing of written submissions, with that timetable to complete as at 6 April 2021, later extended to 7 May 2021, on which date the final written submissions were filed. On 19 May 2021, judgment was reserved.
I apologise to the parties, and their legal representatives for the long delay in the making of final orders and publication of these reasons.
The materials relied upon at hearing
The Wife relied upon the following documents:
(1)A Case Outline document dated 14 February 2021 prepared by Ms Kaiti;
(2)Her Amended Initiating Application filed 5 April 2019;
(3)Her affidavit sworn or affirmed 7 September 2018 and filed 27 September 2018;
(4)Her Financial Statement sworn or affirmed and filed 10 February 2020; and
(5)Written Submissions dated 23 March 2021 prepared by Ms Kaiti.
The Wife also relied upon the following exhibits:
(6)Exhibit A1 – Internet screen print-out showing the value of the Husband’s superannuation entitlements with Super Fund C as at 11 February 2021;
(7)Exhibit A2 – letter of 9 August 2018 from Lovemore Lawyers (the Wife’s solicitors) to Synergy Legal (the Husband’s solicitors);
(8)Exhibit A3 – letter of 4 December 2018 from Lovemore Lawyers to Synergy Legal; and
(9)Exhibit A4 – copies of bank statements as follows:
(a)Bank D – Standard Home Loan account statement for the period 16 September 2016 to 15 December 2016 for loan account #...99 in the Husband’s sole name;
(b)Bank E –account statement for account #...94 in the Wife’s sole name, statement number 1, pages 3 and 4 of 6 only;
(c)Bank E –account statement for account #...94 in the Wife’s sole name, statement number 2, pages 3 and 4 of 6 only;
(d)Bank E – Complete Freedom account statement for account #...94 in the Wife’s sole name, statement number 3, page 4 of 7 only;
(e)Bank E – Complete Freedom account statement for account #...94 in the Wife’s sole name, statement number 4, page 1 of 8 only;
(f)Bank E – Complete Freedom account statement for account #...94 in the Wife’s sole name, statement number 5, pages 2 and 4 of 7 only;
(g)Bank E – Complete Freedom account statement for account #...94 in the Wife’s sole name, statement number 6, pages 1, 3, 4, and 6 of 8 only;
(h)Bank E – Complete Freedom account statement for account #...94 in the Wife’s sole name, statement number 7, pages 3, 4 and 5 of 8 only;
(i)Bank E – Complete Freedom account statement for account #...94 in the Wife’s sole name, statement number 8, page 5 of 9 only;
(j)Bank E – Complete Freedom account statement for account #...94 in the Wife’s sole name, statement number 9, pages 3, 4, and 5 of 9 only;
(k)Bank E – Complete Freedom account statement for account #...94 in the Wife’s sole name, statement number 10, pages 1, 3 and 5 of 8 only;
(l)Bank E – Complete Freedom account statement for account #...94 in the Wife’s sole name, statement number 11, pages 3 and 7 of 8 only; and
(m)Bank E – Complete Freedom account statement for account #...94 in the Wife’s sole name, statement number 12, pages 3 and 5 of 8 only.
The Husband relied on the following documents:
(1)Case Outline document prepared by Ms Rusiti dated 14 February 2021;
(2)His Amended Response to Initiating Application filed 18 June 2019;
(3)His affidavit affirmed and filed 13 November 2018;
(4)His Financial Statement sworn or affirmed and filed 12 February 2021;
(5)Written Submissions prepared by Ms Rusiti and filed 17 March 2021; and
(6)Written Submissions in Reply prepared by Ms Rusiti and filed 7 May 2021.
The Husband also relied upon the following exhibits:
(1)Exhibit R1 – Bank E – Retirement Access Plus account statement for account #...69 in the Second Respondent’s sole name, statement number 41, pages 1 and 2 of 4 only;
(2)Exhibit R2 – statement of the Husband’s entitlements as a member of Super Fund C Superannuation as at 30 June 2013;
(3)Exhibit R3 – statement of the Husband’s entitlements as a member of Super Fund C Superannuation as at 30 June 2016;
(4)Exhibit R4 – statement for the Bank D Standard Home Loan account ending #...99 for the period 16 December 2012 to 15 March 2013 in the Husband’s sole name;
(5)Exhibit R5 – statement for the Bank D Standard Home Loan account ending #...99 for the period 16 September 2016 to 15 December 2016 in the Husband’s sole name;
(6)Exhibit R6 – personal income tax returns for the Husband for the years ending 30 June 2013, 30 June 2014, and 30 June 2016 and the Husband’s Notices of Assessment for the years ended 30 June 2015 and 30 June 2017; and
(7)Exhibit R7 – Title search from NSW Land Registry Services for folio identifier ….
The Second Respondent relied upon the following documents:
(1)Her Response to Initiating Application filed 29 June 2020;
(2)Her affidavit affirmed 12 June 2019 and filed 18 June 2019; and
(3)Her Financial Statement sworn or affirmed 17 June 2020 and filed 29 June 2020.
The Wife gave short evidence in chief, was not cross-examined for the Husband and, though the Second Respondent indicated that she wished to cross-examine the Wife and an interpreter provided by the Court for the assistance of the Wife was sworn, it transpired after a couple of questions and false starts that the Second Respondent did not seek to cross-examine the Wife.
The Husband gave one answer of new evidence on examination in chief and was then cross-examined by Ms Kaiti for the Wife.
Upon counsel for the Wife indicating that the cross-examination was finished, the Court offered opportunity to the Second Respondent to cross-examine the Husband, but no cross-examination was required.
An application was then made by counsel for the Wife for leave to reopen cross-examination of the Husband to deal with further matters. The application was not opposed by the Husband and leave was granted. The Husband was further cross-examined by Ms Kaiti for the Wife, and then re-examined by Ms Rusiti.
The Second Respondent was cross-examined by Ms Kaiti for the Wife and by Ms Rusiti for the Husband. There was no re-examination.
I have read all of the material relied upon by each of the parties including all of the written submissions and I have reviewed the sound recording of the hearing in relation to the oral evidence of the parties.
The competing proposals of the parties
The Wife seeks the following orders as set out in her counsel’s Case Outline document:
[1] Within forty days from the date of these orders the Husband pay to the Wife the amount of sixty thousand dollars ($60,000).
[2] That:
[2.1] In accordance with Section 90XT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable to the Husband from his interest in the [Super Fund C], the Wife is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount of $23,713 and there is a corresponding reduction in the entitlement the Husband would have but for these Orders.
[2.2] Having been afforded procedural fairness in relation to the making of the orders, the orders bind the trustee of the [Super Fund C].
[2.3] The trustee of the [Super Fund C] do all things necessary to give effect of order (2.1) hereof within twenty-eight days (28) of the date provided by such order to rollover the sum to be split in the Wife’s favour to the superannuation fund as nominated by the Wife.
[2.4] The solicitor for the Wife serve a copy of these orders on the trustee of [Super Fund C] within twenty-eight days (28) of the date of these orders and thereafter the aforesaid Trustee has liberty to relist the matter in the event that the trustee is unable to comply with order (2.1) hereof.
[3]That as between the Husband and the Wife, and subject to the orders above, the Husband and the Wife shall each respectively retain all interest and entitlement to:
[3.1] all real property registered in their name;
[3.2] all personal property now in his/her respective possession or control;
[3.3] any motor vehicle in their possession;
[3.4] all savings and investments in their sole name;
[3.5] all shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively;
[3.6] all interests in life insurance policies and superannuation funding in his/her sole name respectively.
The Wife did not seek a superannuation splitting order in either her Initiating Application filed 27 September 2018 or her Amended Initiating Application filed 5 April 2019. There is no evidence that procedural fairness had been afforded at any time to the trustee of ‘Super Fund C’ in compliance with section 90XZD of the Family Law Act 1975 (Cth) (‘the Act’).
The Husband seeks that the Wife’s application be dismissed with costs.
The Second Respondent seeks that the Wife’s application be dismissed with costs.
Evidence as to credit
The Wife’s evidence in chief is contained in her affidavit of 7 September 2018 and her Financial Statement of 10 February 2020. Despite the hearing taking place in February 2021, some two and a half years after the Wife made that affidavit, no updated affidavit evidence was presented by the Wife on hearing.
Counsel for the Wife submitted in written submissions that:
The Wife’s evidence should be the preferred evidence to be accepted. It is also noteworthy to emphasise that the Wife’s evidence went unchallenged and was not cross-examined by the Respondent Husband’s counsel … It is submitted that the best evidence is that given by the Wife.
There is no rule of evidence, statutory or in the common law, that evidence in chief that is not tested by cross-examination must be accepted by a Court. That evidence in chief may be contradicted by evidence in chief of the other party, during cross-examination of the other party, or by documentary or real evidence.
As the Full Court of the Family Court of Australia said in Logan & Logan [2013] FamCAFC 151 at paragraph 42:
… it is not the case that the evidence of that witness on that topic must be accepted on the ground that it is unchallenged.
However, the fact that the Wife’s evidence in chief was not tested by cross-examination is a matter to be taken into account by the Court on assessing the weight of each item of evidence.
The Husband’s evidence in chief is contained in his affidavit of 13 November 2018 and his Financial Statement of 12 February 2021. He also did not provide any updated affidavit evidence for the hearing.
The Wife’s counsel submitted that during cross-examination the Husband:
… at times appeared to demonstrate a greater level of subjectivity and was vague in his recollection when questions were put to him about the Wife’s contributions. It is submitted he answered questions in the vein of gaining a better position and more favourable outcome to his case.
I do not accept that submission. The Wife’s counsel is referring to the Husband being referred to the Bank E statements for the Wife’s account that form the greater part of Exhibit A4.
It was not brought out in evidence that the Husband had seen those bank statements prior to his cross-examination. He was taken to particular entries on particular dates and asked to translate the notation the Wife had made on the item in the Country F language into English. It was put to him in relation to each such entry that the monies had been transferred by the Wife to his account for payment of various living expenses of the family unit constituted by the Husband, the Wife and the Second Respondent during cohabitation.
There was no evidence presented to the effect that the Husband had made those transactions himself, or that he was present when the transactions were made, or that he had discussed any particular transaction with the Wife.
Nevertheless, he conceded in relation to almost all of the transactions to which he was taken that it was certainly possible that the monies shown on the item had been transferred by the Wife to his account for the purposes stated by the Wife in the Country F language at each item, though his answers varied when the propositions were put to him, with answers such as:
“I am not sure what it was for”
“Yes, it was for electricity”
“I cannot tell”
“I don’t see my account number here”
“I don’t know”
“Could have been”.
All of those answers were perfectly understandable from the Husband as the bank statements to which he was being taken that are in evidence in Exhibit A4 do not indicate in any place to which account the debit amounts to which the Husband was taken went, each and every one of the items to which the Husband was taken being described only by the date of the transaction, “INTERNET WITHDRAWAL” followed by a date and time and an amount and the remaining balance.
In response to a question from the mother’s counsel:
So the Wife is contributing to board and to other costs?”
the Husband answered:
She was paying towards the costs.
He specifically agreed that the Wife was contributing towards the household costs in addition to paying a fixed sum each month for “board”.
I find that the Husband gave his evidence in cross-examination in a forthright manner without prevarication and that his answers to the questions relating to the bank statements did not display a vagueness in his recollection, but were a reasonable response to assertions put to him about transactions undertaken by another and in relation to which there is no evidence that he had personal knowledge either at the time or thereafter.
I find that there is no basis upon which to make a credit finding against any of the parties.
That is not to say that I consider the evidence in this matter to be of equal weight. It must be noted, however, that the Wife’s evidence in relation to contributions was sparse and was, with a few exceptions, in the nature of generalisations. I will give further consideration to the weight to be afforded to the evidence in the matter in due course in these Reasons.
The evidence
Whenever I refer to “cohabitation” or “the parties’ cohabitation” I am referring to the cohabitation between the Husband and the Wife.
The parties met around 2008. The Wife was living in her homeland of Country F and the Husband was living in Australia. In about mid-2012, the Husband travel to Country F and Husband and Wife became engaged.
In 2013, the Wife moved to Australia on a fiancé Visa and Husband and Wife commenced cohabitation at a property owned jointly by the Husband and the Second Respondent at G Street, Suburb H (‘the G Street, Suburb H property’).
The Second Respondent was at all times a member of the household with the Husband and the Wife.
The parties married in 2013 and they separated on 21 November 2016 when the Wife left the G Street, Suburb H property, taking only her personal items. The Husband and Wife were divorced on 7 June 2018.
The total period of the Husband and Wife’s cohabitation was 3 years and 9 months.
The G Street, Suburb H property was purchased in 1999 by the Husband, the Second Respondent and the Husband’s brother. There is no evidence as to the purchase price, but a sum of $228,000 was borrowed to assist with the purchase and a first registered mortgage over the G Street, Suburb H property was given as security. In 2006 the property was refinanced “for an additional approximately $62,000”.[1] After that refinance, the amount owing on the loan accounts secured by mortgage on the property was “approximately $203,000”.[2]
[1] Husband’s affidavit, paragraph 9.
[2] Second Respondent’s affidavit, paragraph 8.
Both the Husband and the Second Respondent refer to the purchase having the made by them jointly with the Husband’s brother (unnamed) and there is no evidence as to what happened with that brother’s interest in the property along the way, but the title search that is Exhibit R7 shows that the property is in the names of the Husband and the Second Respondent as joint tenants and is subject to a mortgage to Bank D Ltd. There is another mortgage registered on title prior to the Bank D Limited mortgage, but it may will be that it is either associated with the latter mortgage or is the mortgage discharged in 2006, but no Discharge of Mortgage has been registered to remove the registered dealing on title. The evidence does not assist.
It’s the Husband’s evidence in paragraph 10 of his affidavit that at the time of commencement of cohabitation between himself and the Wife, $120,000 was owing on the loan account secured on the G Street, Suburb H property, whereas the Second Respondent’s evidence in paragraph 12 of her affidavit is that:
Prior to the commencement of [Ms Bilic] living with [Mr Bilic], [Mr Bilic] and I had reduced the mortgage considerably and it was approximately $134,000.
The Wife’s evidence in paragraph 5 of her affidavit is that she is “not sure how much the mortgage on the property was” when she and Husband began living together at the G Street, Suburb H property.
Exhibit R4 is a copy of the Bank D Standard Home Loan statement for the period 16 December 2012 to 15 March 2013, when the loan account secured on the G Street, Suburb H property in the Husband’s and Second Respondent’s names, and shows the amount outstanding on the loan as at 15 March 2013 of $134,592.36.
At the commencement of cohabitation the Wife owned a property in Country F that she had received as a gift from her father in 2001, being J Street, City K, Country F, and the Wife remained the sole owner of the property at the time of the hearing. There is no evidence of any financial contribution being made in relation that property by the Husband or the Second Respondent, or indeed by the Wife, from the time of commencement of cohabitation of the parties up to final hearing. There is no evidence as to how that property is used, if used at all.
The Husband owned a Motor Vehicle 1 at the commencement of cohabitation.
At the commencement of cohabitation the Husband held Company L shares and Company M shares, represented by 746 Company L shares and 400 Company M shares at the time of the final hearing.
The Husband was a member of Super Fund C when the parties commenced cohabitation and Exhibit R2 shows that as at 1 January 2013 his account balance was $88,467.40 and that as at 30 June 2013 his account balance was $97,299.09.
The Husband worked throughout the parties’ cohabitation.
The Wife was not in paid employment from the time she came to Australia in early 2013 until the end of June 2013 when she commenced employment with Employer N as a health care worker. She remained in that employment for 4 years and 4 months, that is, throughout the parties’ cohabitation and for some months after separation.
The Husband and the Wife kept their finances separate throughout the cohabitation, the Wife retaining her earnings in an account or accounts in her sole name and Husband retaining his earnings in an account or accounts in his sole name. The Wife transferred monies from an account in her name to an account in the Husband’s name as contribution to the living expenses of the parties.
From September 2013 until May 2014 Wife transferred $600 per month from her account to the Husband’s account. Then from June 2014 until November 2016, the Wife increased the amount transferred monthly to $1000. On this basis the Wife made 9 payments of $600, totalling $5400, and 30 payments of $1000, totalling $30,000, being $35,400 in all. The Wife characterises these payments from her to the Husband as the Wife:
… contributing … [to] the mortgage repayments.[3]
[3] Wife’s affidavit, paragraph 11
The Wife’s financial contribution to the living expenses of the parties is dealt with in very general terms in paragraph 12 of her affidavit:
I also contributed to other expenses including council rates, water rates, electricity, food, new furniture, telephone bills, etc. I contributed to the cost of new appliances such as the dryer, fridge, tv and oven.
The Wife did not provide any detail of these asserted contributions by giving any specifics in her evidence in chief. However, the bulk of the cross-examination of the Husband was in relation to identification of amounts shown as withdrawals from the Bank E account number …94 in the Wife’s sole name. The questions put to the Husband by Ms Kaiti in cross-examination related to those items and all of the items are on the bank statements in Exhibit A4.
The point of the cross-examination was for Ms Kaiti to put to the Husband that a certain amount on a certain date shown as a debit in the account and having a description in Country F was an amount transferred by the Wife to the Husband’s account as a contribution to payment of various outgoings, as described in the description in Country F.
I have already dealt with the Husband’s responses, ranging on a couple of occasions from acceptance that the funds were transferred to his account for the purpose of, for instance, payment of an electricity account, but in most cases the Husband’s response amounted to him not being able to say whether the funds had been transferred to his account or not, or to confirm that if they were transferred or applied for the purpose asserted by the Wife in her Country F language description. These responses are perfectly acceptable from the Husband in circumstances where he was provided with the Wife’s statements from which she asserted the monies were transferred to the Husband’s account through her counsel’s cross-examination, but not in her evidence in chief
He was not presented in the witness box with companion statements for his account showing monies being deposited in the same amount on the same day or in reasonable proximity to raise a strong inference that what was being put to him in cross-examination was the case.
However the Husband did concede, after an initial denial, that the Wife did make contributions to payment of outgoings, accounts, and living expenses for the household in addition to the regular monthly payments by her of $600 and later $1000 referred to above.
As the Wife gave no evidence in relation to the particular payments, did not in fact refer to the account from which the payments are asserted by her to have been made in her evidence in chief, but only found that evidence for her case through counsel’s cross-examination of the Husband, I confine money so paid by her to the amounts identified in the cross-examination.
It is not open to the Court to hunt through such of the pages of the Wife’s Bank E account as became part of Exhibit A4 (even if the Country F language notations were not a bar to that exercise anyway). As the Wife went through the exercise in cross-examination of the Husband, I can only find that her contribution to those living expenses accounts in outgoings at their highest were as asserted by her counsel in cross-examination. Whether I accept all of those asserted contributions is another matter, as I will detail later in these Reasons.
In written submissions, Ms Rusiti provided as Schedule 1 a table of the amounts that “putting it at its highest, the Husband submits” are the relevant transactions, and finds a total of $32,226. However, the table in Schedule 1 contains all of the transactions that were put to the Husband in the cross-examination, but additionally contains a number of transactions that were not put to the Husband in cross-examination, including quite a number of the $1000 per month transactions that are included in the sum of $35,400 referred to above.
When these transactions are removed and the list is confined only to those transactions upon which the Husband was cross-examined, the total is reduced to $13,631. On the basis of the evidence and the Husband’s concessions during cross-examination, though being careful to note that he did not adopt as a fact that all the transactions were transfers to his account for the purposes stated, a concession he was not in a position to make, I find that the sum of $13,631 was contributed by the Wife to of the expenses of the household, in addition to her contribution of $35,400 over the 3 years and 9 months to the costs of accommodation.
I do not find that the $35,400 was a contribution by the Wife to the mortgage repayments. I find that those payments were the Wife’s payment of “board” as described in paragraph 19 of the Husband’s affidavit.
The Husband was cross-examined specifically as to whether the monies transferred, totalling $35,400, were contributions by the Wife to payment of the loan account secured by mortgage on the G Street, Suburb H property and he denied the assertion.
The Husband conceded during his cross-examination that the Wife did contribute to the purchase price of certain appliances (refrigerator, oven and dryer) of which all but the dryer had been retained by the Husband and the Second Respondent. He gave evidence that the contributions to the purchase of these appliances were made equally by the Husband the Wife and the Second Respondent. No amounts were described in the evidence in relation to the purchases.
It must be noted that the Husband’s concessions in cross-examination followed his acceptance of the proposition by Ms Kaiti that the Wife contributed $35,400 to his account, which he said was approximately correct, and his denial of the proposition by Ms Kaiti that:
Your Wife also made other contributions to household expenses.
His concessions came after being taken to some of the transactions in the Wife’s Bank E statements in Exhibit A4. It also appears in one sense to contradict his evidence in paragraph 20 of his affidavit that:
During the marriage I pay for all the financial expenses including the mortgage payments, utilities, rates, day-to-day living expenses, our outgoing expenses and holiday expenses.
However, I accept from the Husband’s cross-examination that the meaning of his evidence in paragraph 20 of his affidavit was that he paid the accounts bills and outgoings from his account, and when combined with paragraph 22 of his affidavit:
All payments are made electronically so a record could be kept of the transactions. All payments were made to my savings account.
and his concessions in cross-examination, I find the sense of both paragraph 20 of his affidavit and his initial responses in cross-examination can be made in the sense that the payments were made by him, though monies were contributed thereto by the Wife by transfers to his account from which those payments are made.
I accept that in addition to the regular monthly payments by the Wife to the Husband totalling $35,400, and payment by the Wife to the Husband of $13,631 towards outgoings and expenses, the Wife also contributed by spending income earned by her on purchase of food and household supplies, but as a contribution of those costs on what I must infer to be an equal basis with the Husband and the Second Respondent given that it is described by the Wife only as money she “contributed”, without any particularity.
The Wife gives evidence in paragraph 11 of her affidavit that the parties received $6000 as a wedding gift and that it was “paid into the home loan”. In cross-examination, the Husband denied that the sum received as a gift was $6000 and said the gift was $5000 and agreed that it was paid off the loan account secured by mortgage on the G Street, Suburb H property.
Neither party gave any evidence as to from whom the gift was received. I must therefore find that it was an equal contribution by the parties.
The Wife asserted that she made a contribution as a homemaker without particularising what that meant except to say that the Second Respondent:
… would also assist with house work, grocery shopping, cooking, etc.[4]
[4] Wife’s affidavit, paragraph 13.
The Husband’s evidence in chief was that the Wife:
… made very minimal if any contribution to the house work as my mum was home all day and would take care of everything including cooking, cleaning, ironing, shopping, washing. Also on the weekend [Ms Bilic] and I would both assist with the housework.[5]
[5] Husband’s affidavit, paragraph 17.
The Second Respondent says in paragraphs 18 to 20 of her affidavit:
[Ms Bilic] did not contribute to the housework. She would always complain she was tired and stay in her room.
[Ms Bilic] would occasionally help with the cooking, she would bake a cake if there was a party.
I would cook for everyone and do all the cleaning, washing and ironing in the house, as I was always home and like to keep myself busy. I used to pack lunch for [Ms Bilic] for her to take to work when she started working.
During her cross-examination, it was put to the Second Respondent by Ms Kaiti that the Wife did most of the cooking, which the Second Respondent denied and asserted that she did the cooking. It was then put to the Second Respondent that the Wife did most of the cleaning, to which the Second Respondent replied in words to the effect of:
… she did some cleaning, my son did some cleaning, and I did some. She went shopping sometimes, and sometimes I did.
It was then put the Second Respondent that the Wife did most of the washing, to which the Second Respondent replied in words to the effect of:
… she sometimes washed, but I did the ironing, she sometimes ironed, my son asked her a few times to help.
The Second Respondent was then referred to her affidavit evidence at paragraph 18 that “Ms Bilic did not contribute to the housework” and the Second Respondent conceded “she did contribute a bit” and she then conceded that the Wife on occasions accompanied the Second Respondent grocery shopping and then finally conceded that the Wife occasionally cooked.
Ms Kaiti put to the Second Respondent:
The Wife contributed to the household expenses from her money?
to which the Second Respondent replied:
Yes, she did some, yes.
The Husband’s evidence in cross-examination paired with the evidence in his affidavit. He denied that the Wife cooked for him or washed his clothes and said that she did household chores only rarely – once every 2 or 3 months. He gave evidence that the cooking and washing of his clothes and the Wife’s clothes was done by the Second Respondent, that he did the vacuuming, and that sometimes he and sometimes the Wife did the dusting.
The Wife asserts in paragraph 13 of her affidavit that she contributed non-financially by painting the garage. During his cross-examination the Husband gave evidence that both he and the Wife painted one wall of the garage, taking less than half an hour to do so.
The Husband and Wife separated on 21 November 2016 when the Wife moved out of the G Street, Suburb H property and commenced residing in rented accommodation.
Following separation the Wife purchased a new Motor Vehicle 2 for about $25,000. There is an inference in the evidence that she borrowed the whole amount.
The Wife states in paragraph 15 of her affidavit that as at that date, 7 September 2018, an amount of $19,000 was outstanding on the car loan, but the loan had been fully repaid by the time the Wife completed her Financial Statement of 10 February 2020 as no such debt is referred to and no such debt appears on the Joint Balance Sheet.
At the time of separation the Wife’s superannuation entitlements in an accumulation fund with Super Fund O had a balance of $9500.
Exhibit R3 shows that the Husband’s Super Fund C account had a closing balance as at 30 June 2016 of $141,655.85, being 5 months prior to the parties’ separation.
As referred to above, the amount outstanding on the Bank D Limited Standard Home Loan in the joint names of the Husband and the Second Respondent, secured on the G Street, Suburb H property by mortgage (‘the home loan’), as at 15 March 2013 was $134,592.36.[6]
[6] Exhibit A4 and Exhibit R4.
On 21 November 2016, the day the parties separated, the amount outstanding on the home loan was $11,844.25.[7] Accordingly, the home loan had been reduced by $122,748.11 during the period of the parties cohabitation.
[7] Exhibit R5.
The home loan was paid out and discharged between 5 and 14 December 2016, between two and three weeks after separation of the Husband and Wife. The Husband gave evidence that the loan was paid out with monies from his account and the Second Respondent’s account.
Exhibit R1 shows that on 1 December 2016 an amount of $10,000 was withdrawn from the Second Respondent’s Bank E Retirement Access Plus account and Exhibit R5 shows that an amount of $10,544.25 was paid off the home loan account on 8 December 2016, reducing the amount owing to nil, with payment thereafter relating only to discharge fees.
During re-examination the Husband gave evidence that the $10,000 withdrawal transaction on 1 December 2016 was the Second Respondent’s contribution to paying off the mortgage, that the withdrawn sum was transferred to his account and that it “helped reduce the mortgage to next to nothing”. The Second Respondent also confirmed during her cross-examination that she had transferred that sum of $10,000 to the Husband’s account to be paid off the home loan.
I find that the sum of $10,000 was contributed by the Second Respondent to final payment out of the home loan account.
At the time of hearing, the Wife was employed as a health care worker in a health care clinic for an annual gross wage of $56,576.[8] The Wife resides in rental accommodation and is not responsible for the support of any other person. The Wife confirmed in her evidence that she does not have any health issues.
[8] Wife’s Financial Statement, item 9.
The Husband was made redundant from his position as a professional at Employer P in June 2018. During his cross-examination, he gave evidence that on his redundancy he received a sum of $30,000 including annual leave and long service leave, which was deposited into his savings account.
The Husband had casual employment as a professional in relation to the Employer Q, with an estimated average weekly income from that casual employment of $315.
During cross-examination, he deposed that he has been doing casual work for Employer Q for about the past 15 years. He deposes in his Financial Statement that his only other source of income is an estimated $5 a week dividend and interest from his Company M and Company L shares, and from moneys on deposit in his Bank E account.
At the time the Husband completed his trial affidavit on 13 November 2018 he was studying full-time at TAFE a view to a career change, and in cross-examination he gave evidence that by the final hearing he had completed his TAFE studies and gained a Diploma in communications
The Husband and the Second Respondent continue to jointly occupy the G Street, Suburb H property.
The Second Respondent deposed in her Financial Statement that she has an income of $615 per week from a combination of Centrelink pension and a Country F pension.
The Husband confirms in his evidence that he has no health issues.
Though the Second Respondent gives some evidence in her trial affidavit in relation to her health and attaches a short summary form medical report from her general practitioner as annexure “A”, her health is not a matter relevant in these proceedings.
Submissions
Ms Kaiti provided written submissions on behalf of the Wife. It was submitted for the Wife that there had been a failure of full and frank financial disclosure by the Husband, but on the basis of the evidence on hearing, I cannot make that finding. The Husband’s bank statements were not available in the courtroom on the day the final hearing, but evidence was given by the Husband that his relevant bank statements had been disclosed. No evidence was adduced by the Wife to contradict his evidence.
Ms Kaiti submitted that the contributions of the Wife:
(1)By making payments totalling $35,400 into the Husband savings account from which the repayments of the home loan account were made;
(2)By her transfers to the Husband’s account of monies towards paying strata fees, council rates, water rates, electricity bills and other accounts; and
(3)By her contribution of one third of the purchase price of new appliances such as the dryer, refrigerator, television and oven (or all retained by the Husband and Second Respondent except for the dryer, which the Husband said in his cross-examination was “gone’),
were “a major contribution as they contributed to the reduction of the mortgage significantly.”
The submission was made for the Wife that the Husband’s evidence was:
… general, and at times appeared to demonstrate a greater level of subjectivity and was vague in his recollection when questions were put to him about the Wife’s contributions. It is submitted he answered questions in the vein of gaining a better position and more favourable outcome to his case.
I do not accept that submission, for the reasons I have already stated.
It was also a submitted on behalf of the Wife that in contrast to the Husband’s evidence:
… the Wife provided a greater degree of particularity in comparison to the Husband’s blanket denials of contributions by the Wife.
I do not accept the submission that the Wife provided any degree of particularity, let alone a greater degree of particularity than the Husband. The evidence of all three parties was remarkable for its lack of particularity, the only particularity evident in the trial coming during the cross-examination of the Husband when Ms Kaiti laboured valiantly to work some particularity into the Wife’s general statement that she made contributions toward the general household expenses.
Ms Kaiti made reference to the wedding gift that was used to pay off the home loan account being a direct contribution to reduction of the home loan account secured by mortgage on the property and so increasing the equity held by the Husband in the property (logically, also increasing the equity held by the Second Respondent in the property).
The Wife’s evidence that the sum received as a gift and so used was $6000 was contradicted by the Husband who gave his evidence in cross-examination that the gift was $5000. That issue is left as word on word, and I am not in a position to make a finding as to the amount.
Certainly, it is a consideration when any consideration of the contributions by or on behalf of each of the parties is made.
Ms Kaiti submitted:
… the Wife’s car should not be taken into consideration as part of the property pool as it was acquired post separation.[9]
[9] Emphasis added.
I do not accept that submission. As the Full Court pointed out clearly in Holland & Holland [2017] FamCAFC 166 at [25] and [31] to [34]:
[25] … earlier cases often contain reference to particular property being “excluded” from consideration. In our view it is wrong as a matter of principle to refer to any existing legal or equitable interests in property of the parties or either of them as “excluded” from, or “immune” from, consideration in applications for orders pursuant to s79. Again, what was said by the Eye Court in Stanford pertains.
…
[31] … the nature of a particular interest or interests in property and when and how it was acquired, utilised, improved or preserved may be very relevant to each or all of 3 central questions: should a s 79 order be made at all; whether contributions should be assessed “globally” or “asset by asset” or by reference to 2 or more “pools”; and, what is the nature and extent of each party’s contributions. However, there is no basis for excluding from consideration any property in which the parties have an existing legal or equitable interest.
[32] Importantly, while it might be convenient to describe property by reference to a characteristic (for example, as an “inheritance” or “post-separation” or “after-acquired” property), its place within the ambit of s 79 is determined by the fact that it exists as a legal or equitable interest of the parties to the marriage or either of them and that the nature, form and characteristics of it and the contributions of all types made by the party suggest that it should be treated in a particular way.
[33] The consideration of the three central questions earlier referred to call in each case for the exercise of discretion by a trial judge. That discretion is exercised not by reference to whether property might conveniently be described as “an inheritance” or “after-acquired” but, rather, by reference to the nature, form and characteristics of the property in question and the nature, form and extent of the parties’ contributions of all types across the entirety of their relationship.
[34] In respect of the last point, it is important to emphasise that the categorisation of property as “an inheritance” or as “after-acquired” property often leads to an erroneous argument that unless contributions to that property can be established, the property should be “excluded from consideration”. As we have said, that argument is erroneous by reason of ignoring the fundamental premise that s 79 is directed to all of the existing legal and equitable interests in property of the parties or either of them without exclusion of any of those interests.
In summary, Ms Kaiti submitted that the Wife’s contribution was substantial and that there must be an adjustment of property interests in her favour, being:
…a contribution based adjustment in favour of the Wife of 20% of the Husband’s property, in addition to her retaining the property in Country F.
Ms Kaiti also submitted that there should be a 10% adjustment to the Wife for her future needs on consideration of the matters in section 75(2). However, Ms Kaiti further submitted that if final orders are made as sought by the Wife, she would receive 17% of the property in the Husband’s name and 20% of the total superannuation pool.
Ms Rusiti submitted that as there was no evidence before the Court of the value of the parties’ property, including superannuation, at commencement of cohabitation (though I note there is evidence of the value of the Husband’s superannuation both shortly prior to and shortly after the commencement of cohabitation), it is not possible for the Court to calculate what each party’s percentage share of the pre-cohabitation assets were.
Ms Rusiti submits however that it can be inferred from the evidence that the value of the G Street, Suburb H property was significantly greater than the value of the Wife’s Country F property at the commencement of cohabitation and that there is no evidence of the Wife having this any superannuation entitlements at commencement of cohabitation, whereas there is evidence that the Husband had superannuation (and, as I have said, evidence as to value approximate to commencement of cohabitation).
Ms Rusiti submitted that:
…rather than finding that the Wife made a direct or indirect financial contribution to the acquisition, conservation or improvement of the parties’ property (for the purposes of section 79(4)(a)), the Court would find that the Wife benefited from living in the Husband’s home and otherwise having her living expenses subsidised by the Husband during the parties’ cohabitation.
In the alternative, if the Court is minded to make an assessment of each party’s respective financial contributions during the relationship, it is the Husband’s submission that the only conclusion that the Court can reach is that the Husband made the considerably greater financial contribution throughout the parties’ short marriage, and that the Husband’s financial contributions during the period of cohabitation outweighed those of the Wife by some 260%.
Ms Rusiti surveyed the evidence in relation to non-financial contributions and submitted that:
… the parties’ overall non-financial contributions ought to be assessed in the vicinity of 75% – 80% to the Husband and 25% – 20% to the Wife.
The submission was made for the Husband that there were no substantially relevant post-separation contributions by either party, the home loan having been paid off by the Husband and the Second Respondent shortly after the separation.
Ms Rusiti refer the court to the decision of the Full Court in Anson & Meek [2017] FamCAFC 257 at [181] where it was said:
… where there is a short marriage, where there are no children and where the parties’ contributions to their assets and to the welfare of the family from the commencement of the relationship to the time of hearing is equal, any disparity in initial financial contributions is of critical importance in determining the overall contributions of the parties …
The Husband submitted that the contributions of the parties during the marriage were far from equal.
Finally, the Husband submitted that the Court would find that it was not just and equitable to make an order under section 79 altering the interests of the parties in property, and that if the Court did find that it was just and equitable to proceed to make an order under section 79, the Court could not find that the Wife’s contribution-based entitlement exceeded 5% to 7.5%, and that any adjustment pursuant to consideration of the factors in section 75(2) would favour the Husband to the same or greater extent than the Wife’s contribution-based entitlement.
As the Husband does not seek any order that property or payment flow from the Wife to him, it is really the case that Ms Rusiti’s latter submission is again a submission that it is not just and equitable to make any adjustment between the parties.
The law
The law relating to the alteration of property interests between two parties to a marriage is governed by section 79 of the Act.[10] Relevant in this case, section 79(1) vests the Court with power to alter the interests of the parties in property,[11] and the power to make orders providing for the settlement or transfer of property, as determined by the Court.[12]
[10] Family Law Act 1975 (Cth) s 79.
[11] Family Law Act 1975 (Cth) s 79(1)(a).
[12] Family Law Act 1975 (Cth) s 79(1)(d).
However, the Court must not make an order under section 79 unless the Court is satisfied that, in all of the circumstances, it is just and equitable to do so.[13] The legislative process required by section 79 was considered by the High Court in Stanford & Stanford (2012) 247 CLR 108.
[13] Family Law Act 1975 (Cth) s 79(2).
In that decision, the High Court held that section 79(2) requires that at the outset of the Court’s decision-making process the Court must consider whether or not, in all the circumstances, it is just and equitable to make an order under section 79(1) altering the interests of the parties to the marriage in property.
In considering the proposition posed by this first step, a Court should start by identifying items under the following categories:
(1)The existing legal and equitable interests of the parties in property, according to ordinary common law and equitable principles;
(2)The existing liabilities of the parties, according to ordinary common law and equitable principles and under legislation; and
(3)The rights of the parties, if any, according to ordinary common law and equitable principles and under legislation, in relation to any asserted resources of the parties that may, if it is considered just and equitable to proceed with the property settlement, be taken into account in the Court’s consideration of the matters referred to in section 75(2) of the Act, to which section 79(4)(e) directs the Court’s attention.[14]
[14] Stanford & Stanford (2012) 247 CLR 108; see, especially, [37].
That the interests as described above are ‘existing’ is of importance, as the Court noted, because the text of the section gives reference to ‘altering’ the interests.[15]
[15] Stanford & Stanford (2012) 247 CLR 108, [37].
I further note the comments of the High Court in Stanford at paragraph 42 which I reproduce in full here:
[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. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).[16]
[16] Stanford & Stanford (2012) 247 CLR 108, [42].
I will examine the matrimonial asset pool and the existing interests of the parties, before determining whether it is just and equitable to make a property adjustment order.
If the Court determines that it is just and equitable to make an order under section 79, the Court must then consider what orders are appropriate to be made. In doing so, I will follow the four-step process set out in Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395.
In Hickey, the Full Court of the Family Court set out a process of four inter-related steps that must be taken by a court when determining a property application:
(1)First, “the Court should make findings as to the identity and value of the property, liabilities, and financial resources of the parties at the date of the hearing”;[17]
(2)Second, “the Court should identify and assess the contributions of the parties within the meaning of section 79(4)(a), (b), and (c), and determine the contribution-based entitlements of the parties expressed as a percentage of the net value of the property of the parties”; [18]
(3)Third, “the Court should identify and assess the relevant matters … (‘the other factors’) including…the matters referred to in section 75(2) so far as they are relevant…”;[19]
(4)Fourth, “the Court should … resolve what order is just and equitable in all the circumstances of the case”.[20]
[17] Hickey [2003] FamCA 395, [39].
[18] Hickey [2003] FamCA 395, [39]. See also Family Law Act 1975 (Cth) s 79(4)(a)-(c).
[19] Hickey [2003] FamCA 395, [39].
[20] Hickey [2003] FamCA 395, [39].
The Full Court pointed out in Hickey that pursuant to the wording of section 79, there can only be one property settlement order at any one time, and that the one property settlement order is final, subject only to anything that may be properly done pursuant to section 79A of the Act.[21]
[21] Hickey [2003] FamCA 395, [47].
The Full Court held in Fontana & Fontana [2018] FamCAFC 63:
… Indeed, the authorities are consistent in finding that assessing contributions is not an accounting exercise but a holistic one (Brandt & Brandt (1997) FLC 92-758; Norbis & Norbis (1986) 161 CLR 513)..[22]
[22] Fontana & Fontana [2018] FamCAFC 63, [27].
The Court is required to consider the parties’ contributions made on and from the commencement of their relationship, during their relationship, and following separation.[23]
[23] See, eg, Jabour & Jabour [2019] FamCAFC 78.
The approach to determining the appropriate percentage of the net value of property in relation to the contributions of the parties, at step two of the four-step process, requires an assessment of contributions by, or on behalf of, each of the parties in a holistic manner, rather than attaching specific contributions to a specific item of property and making a determination upon that basis. To do the latter would be to disregard the whole of the contributions made during the whole of the relevant period of the relationship by or on behalf of each of the parties.
As the Full Court said in Dickons & Dickons [2012] FamCAFC 154 at paragraphs 14 to 16:
[14] As is plain from earlier decisions of this Court, regard must be had to the use made of contributions of various types so as to compare the contributions made by each of the parties during the course of, and over the length of, their relationship (see, for example, In the Marriage of Pierce (1998) FLC 92-844) But that is an entirely different proposition to, as it were, causally linking contributions with their asserted financial “product” or “value”. The former recognises that the nature, form and extent of contributions made by each of the parties might differ; the latter suggests that the absence of a causal link counts as no contribution at all.
[15] The search for a causal link might be seen to come instinctively to the necessary inquiry and all the more so when regard is had to s 79(4)(a) which refers to financial contributions made “...directly or indirectly...” “...to the acquisition, conservation or improvement of any of the property ...” and goes on to also refer to the financial contribution made “...otherwise in relation to any of that last-mentioned property...” The terms of that sub-paragraph might, naturally enough, be seen to suggest a causal link between those contributions and the “financial product” which those contributions of that type are said to have produced. That same requirement might also be seen to suggest that relevant contributions of that type can be seen to be quantifiable – or, at least, conceptualised – in monetary terms, in contradistinction to contributions made pursuant to s 79(4)(c).
[16] While that apparent “causal connection” might be seen in s 79(4)(a) (and (b)), no such connection is apparent from the terms of s 79(4)(c); contributions of that latter type are not linked by the words of the sub-paragraph to the “...acquisition, conservation or improvement of any of the property...” or, indeed, to “property” at all. This is not a legislative oversight; the 1983 amendments to the Act which inserted the current s 79(4)(c) were specifically intended, relevantly, to remove any suggestion that there needed to be a causal link between contributions of that type and any particular asset or property. The Explanatory Memorandum to the Family Law Act Amendment Bill 1983 provides, at Clause 36, that a specific purpose of the re-casting of s 79(4) was, relevantly, to:
... revise sub-section 79(4) to remove the possibility of an interpretation of the sub-section requiring that there be a nexus between a spouse’s contribution and a specific item of property in section 79 proceedings ...[24]
[24] Dickons & Dickons [2012] FamCAFC 154, [14]-[16].
The Court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind.[25] The principle was expressed succinctly by the Full Court in the joint judgment of Bryant CJ and Ainslie-Wallace J in Fields & Smith [2015] FamCAFC 57 at paragraph 168:
...the task is to consider the contributions holistically over the whole period from the commencement of cohabitation to trial, and the analysis requires the Court to weight all of the contributions of all types prescribed by section 79(4) made by both parties across the entirety of the relationship until the time of Hearing, including the post-separation period.[26]
[25] In the Marriage of Harris (1991) 104 FLR 458, 464.
[26] Fields & Smith [2015] FamCAFC 57, [168].
I certify that the preceding one hundred and eighty-nine (189) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley. Associate:
Dated: 12 September 2022
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