Bittoren & Bittoren
[2022] FedCFamC2F 1273
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bittoren & Bittoren [2022] FedCFamC2F 1273
File number(s): MLC 7431 of 2020 Judgment of: JUDGE GLASS Date of judgment: 28 September 2022 Catchwords: FAMILY LAW – PROPERTY – where there are competing applications for orders altering parties’ interests in property – where parties separated in 1981 but did not divorce until 2019 – where one party has been responsible for the care of the parties’ special needs child Legislation: Family Law Act 1975 (Cth) ss 79(2), 79(4)(a-c)(e), 75(2), 81 Cases cited: Adamson & Adamson (2014) FLC 93-622
Anson & Meek (2017) FLC 93-816
Benson & Drury (2020) FLC 93-998
Bevan & Bevan (1995) FLC 92-600
Bevan & Bevan (2013) FLC 93-545
Carlson & Carlson (2019) FLC 93-934
Carlson & Fluvium [2012] FamCA 32
Chapman & Chapman (2014) FLC 93-592
Clauson & Clauson (1995) FLC 92-595
D & D [2004] FMCAfam 154
Dickons & Dickons (2012) 50 Fam LR 244
Kessey & Kessey (1994) FLC 92495
Mabb & Mabb & Anor (2020) FLC 93-947
R & H [2003] FamCA 125
Re Bain (deceased) (2017) FLC 93-772
Robb & Robb (1995) FLC 92-555
Russo & Wylie (2016) FLC 93-747
Sahrawi & Hadrami (2018) FLC 93-857
Stanford v Stanford (2012) 247 CLR 108
Zaruba & Zaruba (2017) FLC 93-776
Zubcic & Zubcic & Anor (2019) FLC 93-918
Division: Division 2 Family Law Number of paragraphs: 73 Date of last submission/s: 16 September 2022 Date of hearing: 15 – 16 September 2022 Place: Melbourne Counsel for the Applicant: Mr Devries Solicitor for the Applicant: Peter Lynch Counsel for the Respondent: Ms Borger Solicitor for the Respondent: RNG Lawyers Table of Corrections 4 October 2022 In paragraph 1 of Reasons of Judgment, reference to the birth date of Mr E has been corrected from “1981” to “1971” 12 April 2023 In the Reasons of Judgment, paragraph numbers have been corrected from “[39] to [97]” to “[15] to [73]” ORDERS
MLC 7431 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BITTOREN
Applicant
AND: MS BITTOREN
Respondent
order made by:
JUDGE GLASS
DATE OF ORDER:
28 September 2022
THE COURT ORDERS THAT:
1.Within 28 days, the Respondent pay to the Applicant the sum of $11,000.
2.Contemporaneously with the Payment, the parties do all acts and things and sign all documents as necessary to transfer to the Respondent, at the sole expense of the Respondent, all the Applicant's right, title and interest in the real property situate at B Street, Suburb C, in the state of Victoria being more particularly described in Certificate of Title Volume … Folio ….
3.The parties otherwise retain the assets and liabilities in their respective names.
4.The parties each be solely responsible for all debts accrued in their individual names including any taxation liability past, present and future.
5.All extant applications be dismissed.
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 Bittoren & Bittoren has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 4 October 2022.
JUDGE GLASS:
Mr Bittoren and Ms Bittoren married in 1977 and separated in 1981. They were divorced in 2019. They have one child, Ms D, born in 1982. Ms Bittoren has a child from a prior relationship, Mr E who was born in 1971.
Arising for determination are competing applications for orders altering the parties’ interests in property. Mr Bittoren seeks the sale of the parties’ property at B Street, Suburb C and the distribution of its proceeds in the proportions of 65% to Ms Bittoren and 35% to himself.[1] Ms Bittoren proposes that the property be transferred to her, and that, in effect, she retain approximately 96% of the value of the parties’ interests in property.
[1] As orally amended in his closing address.
Mr Bittoren relies on his affidavits filed on 5 May 2022 and 17 June 2022 as well as his Financial Statement filed 5 May 2022. Ms Bittoren relies on the documents particularised in her Outline of Case filed on 12 September 2022.
CREDIT
Both parties gave oral evidence that was at times inconsistent with their affidavit evidence. So much is perhaps unsurprising given the parties’ advanced ages, and the significant time that has elapsed between relevant events and the final hearing.
There were substantial contradictions between the parties’ evidence in relation to a wide range of matters. Neither party was cross-examined on all of those disputed matters. Whilst the Court is generally reluctant to make credit findings given the dangers attendant upon doing so,[2] it is necessary to reach a conclusion as to which party’s evidence to generally prefer in order to resolve relevant factual controversies.
[2] Carlson & Fluvium [2012] FamCA 32 at [165-167]; quoted in Adamson & Adamson (2014) FLC 93-622 at [89]; Sahrawi & Hadrami (2018) FLC 93-857 per Ryan and Aldridge JJ at [59 to 65] and the cases there cited.
During her cross-examination, Ms Bittoren conceded that parts of her affidavit evidence were inaccurate. She disavowed the word “insisted” in the following sentence of her affidavit relating to work that was required to be undertaken at her home: “I mentioned to the congregation that I was undertaking this work but they insisted [Mr Bittoren] would do it”.[3] She also agreed that she took steps to seek a divorce from Mr Bittoren in around 2018, prior to having re-engaged in a serious relationship with Mr F, contrary to her affidavit evidence.[4]
[3] Respondent’s Affidavit filed 12 May 2022, paragraph 109.
[4] Respondent’s Affidavit filed 12 May 2022, paragraph 8.
In Ms Bittoren’s Financial Statement, she deposes to incurring average weekly expenses of $20 for Ms D’s clothing and shoes. In cross-examination she gave varying evidence in relation to that figure, suggesting at times that it was an underestimate and at other times that it was variable, being sometimes more and sometimes less. She also appeared not to have clearly differentiated between the costs she incurred from her own funds and those incurred from her daughter’s funds. Ms Bittoren’s Financial Statement also failed to disclose her recent sale of some items of furniture.
Whilst Ms Bittoren also gave inconsistent oral evidence about when she stopped undertaking work outside the home approximately 35 years ago, I am not satisfied that those discrepancies in her evidence lead to the conclusion that it is generally unreliable.
I reject Mr Bittoren’s submission that Ms Bittoren’s evidence was generally vague, self-serving and inaccurate. True it is that she sometimes paused after being asked a question and resorted to phrases like “I can’t answer that” or “I can’t remember”, but I am not satisfied that evidence was misleading. Whilst she may have paused before answering an initial question relating to her obtaining a passport for Ms D which may have exhibited a reluctance to discuss that topic, I am not satisfied from the manner in which she answered other questions on that topic that I should reject that evidence. I am not satisfied it is open to conclude from the manner in which she paused to give her initial evidence that she may relocate internationally as was suggested by Mr Bittoren.
Ms Bittoren was not successfully challenged on her evidence that related to central issues in the case, such as the parties’ contributions. By contrast, Mr Bittoren’s evidence in relation to central issues arising for determination was accepted by him in oral evidence to be incorrect. For example, he deposed to the following “during our marriage the respondent wife stayed at home and looked after our daughter whilst I worked full-time as a tradesman.”[5] Mr Bittoren readily conceded in cross-examination that Ms Bittoren worked all the way through the parties’ relationship. He also conceded that their daughter had not been born before the end of the relationship and so Ms Bittoren had not been caring for her. I will return to other oral evidence he gave that was inconsistent with his affidavit evidence in relation to contributions shortly.
[5] Applicant’s Affidavit filed 5 May 2022, page 9, paragraph 11.
Mr Bittoren gave affidavit evidence that “Previously the respondent wife told me she wanted to pay me out $40,000”.[6] It was suggested to him in cross-examination that he had also said there was another proposal to pay him $35,000. He gave oral evidence that “It wasn’t mentioned about price.” He then confirmed that “It wasn’t mentioned anything about the price, mentioned only percentage.” He then made a suggestion that it was to be a percentage after the sale of the property. It was put to him: “Mr Bittoren, you’re just making evidence up now.” He paused momentarily before saying “Yup.” So much amounts to a concession that Ms Bittoren was in effect fabricating evidence.
[6] Applicant’s Affidavit filed 5 May 2022, page 9, paragraph 7.
Taking that, along with other concessions Mr Bittoren made in oral evidence to which I shortly refer, I conclude that where the parties’ evidence is contradictory, Ms Bittoren’s evidence should be generally preferred.
STATUTORY FRAMEWORK
Pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”), I have a discretion to make such order altering the parties’ interests in property as I consider appropriate. I am prohibited from making an order unless I am satisfied, in all the circumstances, it is just and equitable to do so.[7] If I am so satisfied, I am required to consider the matters prescribed by subsection 79 of the Act and by the device of paragraph 79(4)(e), relevant matters referred to in subsection 75(2) of the Act.
[7] Family Law Act 1975 (Cth) s 79(2).
PROPERTY INTERESTS
It is necessary to begin by identifying, according to common law and equitable principles, the existing legal and equitable interests of the parties in property.[8] Those interests are agreed to comprise the following:
[8] Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) at [37].
Asset
O'ship
Value
B Street, Suburb C
Jt
$ 1,200,000
Bank savings
H
$ 41,068
Motor Vehicle 1
H
$ 6,000
ANZ credit card
H
$ (388)
Motor Vehicle 2
W
$ 1,500
Bank savings
W
$ 11,101
Commonwealth bank credit card
W
$ (5,000)
Loan to Mother
W
$ (15,000)
Total property interests
$ 1,239,281
JUSTICE AND EQUITY
The parties are the joint proprietors of the B Street, Suburb C property. Both parties seek an alteration of their property interests in order to finally determine the financial relationships between them.[9] It is implicit in both parties’ requests that the Court make orders that it is accepted the making of an order would be just and equitable.[10] I consider it to be just and equitable to make a property settlement order because there will no longer be the common use of property by the parties.[11]
[9] Family Law Act 1975 (Cth), s 81.
[10] Russo & Wylie (2016) FLC 93-747 at [54].
[11] Stanford at [42].
CONTRIBUTIONS
I am required to take into account the parties’ financial and non-financial, direct and indirect, contributions to the acquisition, conservation or improvement of property.[12] I am also required to take into account the parties’ contributions to the welfare of the family.[13]
The financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them
[12] Family Law Act 1975 (Cth), s 79(4)(a-b).
[13] Family Law Act 1975 (Cth), s 79(4)(c).
At the commencement of the parties’ relationship, neither had any assets of significance. They were both then employed and resided in rental accommodation.
In 1980, the parties acquired the B Street, Suburb C property in joint names at a cost of approximately $38,000, apparently including purchase costs. They paid a deposit of approximately $4,000. The balance was funded by two home loans secured by mortgage. The first was from the Ministry of Housing for approximately $5,000 and the second from the Bank G for $28,000.
Mr Bittoren initially gave the following affidavit evidence: “during our marriage I made all of the mortgage payments in respect of the B Street, Suburb C property, including the deposit for the house when we purchased it in 1977.”[14] Inconsistently, his reply affidavit contained the following evidence “The Title was registered in our joint names as we each paid $2000 cash for the deposit. I gave Ms Bittoren my share of the deposit to pay Bank G as I was working full time at a factory in Suburb H.”[15] When he was asked in cross-examination the proportions in which the parties paid the deposit, he gave evidence that he could not remember. He accepted that his affidavit assertion that he gave Ms Bittoren $2,000 cash was a guess.
[14] Applicant’s Affidavit filed 5 May 2022, page 9, paragraph 10.
[15] Applicant’s Affidavit filed 17 June 2022, page 4, paragraph (t).
Ms Bittoren gave unchallenged evidence that she paid the $4,000 deposit from her savings. The parties had kept their finances separate during their relationship. Ordinarily, it might be thought that in circumstances where neither party had any assets of significance at the commencement of their relationship, Mr Bittoren would be seen as having indirectly contributed to Ms Bittoren’s savings. However, he had absented himself from the parties’ home on two occasions prior to their final separation. Ms Bittoren gives unchallenged evidence that Mr Bittoren left the home for 8 months on one occasion and several months on another. Given that the parties had only commenced living together in early 1978, those absences prior to the acquisition of the B Street, Suburb C property in 1980 are significant in circumstances where Mr Bittoren accepted he left Ms Bittoren to solely meet all the expenses for the household during his periods of absence. I accordingly do not consider that Mr Bittoren can be seen as having equally indirectly contributed to the deposit for the B Street, Suburb C property which was solely paid for by Ms Bittoren.
Mr Bittoren’s affidavit evidence that he “made all of the mortgage payments in respect of the B Street, Suburb C property”[16] and “I had been paying the Bank G mortgage since 1981”[17] was also inaccurate. He readily gave oral evidence that “in the beginning I didn’t pay” the mortgage repayments. He accepted that Ms Bittoren was solely responsible for the Ministry of Housing mortgage and that he had never paid that mortgage. I find Ms Bittoren was solely responsible for the Ministry of Housing mortgage at all times. It has since been repaid and discharged.
[16] Applicant’s Affidavit filed 5 May 2022, page 9, paragraph 10.
[17] Applicant’s Affidavit filed 17 June 2022, page 9, paragraph zzz.
During the final year of the parties’ relationship, Mr Bittoren agreed in cross-examination that he had given Ms Bittoren some cash which Ms Bittoren used to pay the Bank G mortgage. Those contributions ceased after the parties’ ceased cohabitation in 1981. Mr Bittoren initially asserted in oral evidence that he paid the full mortgage amount thereafter, but his subsequent oral evidence suggested that he was confused in giving that evidence. In answer to a question that Ms Bittoren was entirely responsible for the household after he left, Mr Bittoren gave oral evidence that he could not afford to contribute to her household because he had his own rent to pay. He also gave evidence that he did not provide any financial support to the household during her pregnancy in 1982.
Mr Bittoren submitted that I should infer Ms Bittoren was reliant upon Mr Bittoren to pay the Bank G mortgage between 1982 and 1987 because she herself was unable to afford to do so. I reject the submission. Ms Bittoren’s mother, Ms J, gave unchallenged evidence that “My husband and I provided financial support; buying groceries, paying bills, paying for medical appointments, providing cash to Ms Bittoren so she could pay the mortgage on the B Street, Suburb C property.”[18] Mr Bittoren submitted that evidence was not inconsistent with his submission because it refers to only one mortgage. I also reject that submission. Clearly Ms Bittoren was in receipt of funds from her parents which assisted her defray her living costs, including, but not limited to the mortgage repayments.
[18] Affidavit of Ms J filed 12 May 2022, paragraph 16(h).
Ms J moved to Australia in 1982 to provide support to Ms Bittoren during her pregnancy and upon Ms D’s birth. She lived at the B Street, Suburb C property for approximately 14 years. Ministry of Housing provided funding for the construction of a granny flat on the property. Ms J paid for central heating to be installed in the B Street, Suburb C property and subsequently paid for its ongoing maintenance.
It is unnecessary to determine the apportionment of financial, non-financial, homemaking and parenting contributions as between Ms Bittoren and her mother. That is because Ms J’s contributions are taken to be contributions made on behalf of Ms Bittoren absent evidence of a contrary intention.[19] No such contrary intention is here suggested. Clearly Ms J provided significant assistance to Ms Bittoren in all relevant respects.
[19] Kessey & Kessey (1994) FLC 92-495 at 81-150; Mabb & Mabb & Anor (2020) FLC 93-947 per Kent J at [119].
Ms Bittoren’s evidence that she was responsible for the Bank G mortgage after the parties’ separation in 1981 was unchallenged and I accept it. I also accept her evidence that she was solely responsible for the utilities, insurance and rates in relation to the property despite Mr Bittoren’s evidence to the contrary. It was put to Ms Bittoren that Mr Bittoren had paid her car insurance, roadside assistance and home insurance. She credibly denied those assertions and whilst it was suggested that Mr Bittoren had produced documents to that effect, the only documents in evidence were spreadsheets listing those payments which do not establish that Mr Bittoren made the relevant payments.
Ms Bittoren’s evidence is that from 1982 until 1988 she “continued to pay both mortgage instalments, utilities, house insurance and rates with financial assistance from my family, particularly my parents, to ensure that I kept up to date with payments and did not fall into arrears. I relied on their support as I could not work sufficient hours to receive the necessary income to make these payments by myself”.[20] I accept that evidence in light of Ms J’s unchallenged evidence.
[20] Respondent’s Affidavit filed 12 May 2022, paragraph 28
I accept Ms Bittoren’s evidence in relation to the financial contributions she made between 1982 and 1988. I conclude that Mr Bittoren made no direct or indirect financial contributions in the relevant sense from 1982 until either 1987 or 1988. During that period, Ms Bittoren was solely financially responsible for servicing the mortgages and meeting other necessary expenses.
From approximately 1987 or 1988 Mr Bittoren commenced meeting the loan repayments for the Bank G loan. The building society was subsequently taken over by Bank K, the Bank of Melbourne and ultimately Westpac bank. Mr Bittoren gave oral evidence that he made the payments upon realising that he could be a provider for his family, having returned to his Religion L faith.
The balance of relevant loan in late 1987 was approximately $28,000. Ms Bittoren gives unchallenged evidence that it was fully repaid in 1998. Whilst Mr Bittoren gives evidence it was not paid off until 2007, he put through his counsel to Ms Bittoren that it was paid off by 1998, which proposition she accepted. Given my general preference for her evidence, I conclude that the loan was repaid in 1998.
Mr Bittoren’s direct financial contribution to the conservation of the B Street, Suburb C property spanned some 10 years. In early 1988, repayments were being made at the rate of between $350 and $390 per month, or between approximately $81 and $90 per week.
Mr Bittoren in effect submitted that two interrelated inferences should be drawn when considering the weight to be given to his financial contributions through the repayment of the Bank G mortgage after 1987 or 1988.
Firstly, Mr Bittoren submits that I should infer that had he not made those repayments, the property would need to have been sold. I decline to draw the inference. Ms Bittoren had unilaterally maintained the property for a period of approximately 6 years from 1981 until 1987 or 1988. During that period, she supplemented her government income with work as a cleaner, and transport worker. Whilst she thereafter ceased that work, no evidence was adduced as to her reason for doing so. I cannot conclude that she would not have continued in that work had she needed to in order to maintain the home. I am also unable to infer that Mr E would have left the home and ceased his financial contributions from his income to the household or that Ms Bittoren would not have been able to obtain further income from her family or other sources. Further, she may have made an application for child or spousal maintenance from Mr Bittoren, which issue is relevant to the second inference Mr Bittoren submits ought be drawn.
Secondly, Mr Bittoren submits, inferentially, that had Ms Bittoren thought she would have received more financial support by way of child support or spousal maintenance she would have made an application for it. However, he also submits that any assessment of past child support or spousal maintenance is simply unknown. The two submissions are inconsistent in the sense that one seeks to infer the quantity of a prior entitlement and the other suggests it is impermissibly speculative to do so.
Mr Bittoren has elected not to put evidence before the Court in relation to his employment or income after the parties’ separation in 1981. I am accordingly unable to accept his submission that he financially contributed to the maximum extent he was able to. Clearly had he been earning significant wages, his capacity to contribute to Ms Bittoren’s household would have been greater. True it is I have no evidence that Mr Bittoren was living a lavish lifestyle, but that does not establish that he contributed to the maximum extent of his capacity.
I reject Mr Bittoren’s submission that I can make no historical assessment of what child support and spousal maintenance Ms Bittoren may have been entitled to. Ms Bittoren has, at all times, since Ms D’s birth, been primarily in receipt of income by way of an income tested pension, allowance or benefit. Since the enactment of the Family Law Amendment Act 1987, that income is to be disregarded in assessing any claim for maintenance by Ms Bittoren against Mr Bittoren.
As is well established, spousal maintenance may, in summary, have been ordered where Ms Bittoren was unable to support herself adequately and where Mr Bittoren was reasonably able to do so.[21] In 1987, Ms Bittoren received some remuneration from her casual cleaning, labouring type work. Whilst she could not recall the extent of that remuneration, she did consider it was sometimes more than $70 per week. Once her government benefit income is disregarded, it is readily apparent she was then unable to support herself.
[21] Clauson & Clauson (1995) FLC 92-595 at 81,907; Bevan & Bevan (1995) FLC 92-600 at 81,979.
As was conceded by Mr Bittoren’s counsel, Mr Bittoren from the time he commenced paying the Bank G mortgage in 1987 or 1988 demonstrated a capacity to do so and would otherwise have had capacity to that extent to pay child support and spousal maintenance. Whilst I of course can reach no firm conclusions in the absence of more particularised evidence in relation to the parties’ circumstances, I consider there to be a likelihood that had issues of child support and maintenance been litigated in the 1980s, Mr Bittoren would have been required to make payments to Ms Bittoren at least at a similar rate to the rate at which he assumed responsibility for the Bank G loan.
That conclusion greatly reduces the significance of Mr Bittoren’s financial contributions by way of repayment of the Bank G loan. His counsel conceded that in the event Mr Bittoren had paid spousal maintenance or child support, it would not result in him having made financial contributions in the sense relevant to section 79.
I reject Mr Bittoren’s evidence that he gave funds to Ms Bittoren and Ms D in circumstances where Ms Bittoren’s denial of that evidence was not challenged by him and I generally prefer her evidence.
Mr Bittoren paid no child support and spousal maintenance to Ms Bittoren, despite the fact she was unable to work after 1982 due to her caring responsibilities for Ms D. The weight to be given to Mr Bittoren’s financial contributions through the repayment of the Bank G loan needs to be considered in that context.
The contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent
Ms D has special needs. She suffers from mental retardation, she is illiterate and has an IQ of approximately 55. She has been diagnosed with numerous serious medical and mental health conditions. As a result, she cannot be left home alone and accompanies Ms Bittoren whenever she leaves the home. Mr Bittoren gave oral evidence that Ms D cannot be left without supervision. Ms Bittoren needs to keep a constant eye on Ms D and has had her bedroom door removed so that she can see her daughter in case she is having a fit.
Ms Bittoren has been responsible for meeting Ms D’s needs throughout her life. Ms D spent a period of time admitted to the M Hospital. She struggled at school and did not socialise. In her teenage years, she had a complete mental breakdown, suffered psychotic episodes and in her mother’s words “did not live in our world for years”. She experienced visual and auditory hallucinations, at times not recognising Ms Bittoren as her mother. Ms Bittoren slept with Ms D due to her worries that she would harm herself in the night.
Whilst Orders were made in 1987 providing for Ms D to spend time with her father for 4 hours each fortnight, those Orders were not complied with. Ms Bittoren’s unchallenged evidence is that Mr Bittoren does not understand Ms D and cannot read her emotions. I accept that Ms Bittoren has done what she can to facilitate Ms D’s relationship with her father with limited success.
Accordingly, Ms Bittoren has effectively been solely responsible for Ms D’s care not only for the 18 years of her minority, but also the nearly 22 years that have since elapsed. I accept Ms Bittoren’s evidence that her life has not been her own as she has shouldered the entire responsibility of caring for Ms D. Mr Bittoren agreed that Ms Bittoren has given up her whole life to care for Ms D, a job that has been absolutely relentless. That contribution to the welfare of the family has continued to the date of the hearing.[22]
The contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them
[22] Zubcic & Zubcic & Anor (2019) FLC 93-918 at [94].
Despite the parties’ separation, Mr Bittoren attended the B Street, Suburb C property from time to time, sometimes invited, sometimes not, to undertake various works to it. The extent of his contributions in that respect were controversial.
Ms Bittoren deposes to Mr Bittoren closing in a rear patio approximately 25 or 26 years ago by installing plasterboard and windows using materials both parties paid for. She also gives evidence of him covering original weatherboard with plasterboard that both parties paid for, and undertaking some painting to the patio. Ms Bittoren also deposes to Mr Bittoren undertaking a kitchen renovation to the property about 10-12 years ago, including replacing cupboards at his cost which she estimates to have been between $5,000 and $6,000, and installing a new bench top, sink and taps which were purchased by Ms Bittoren. Around the same time, she deposes to him assisting with bathroom renovations by removing the old bath, toilet and fixtures. She also deposes to him replacing the front porch in around 2017 with her paying him cash for materials.
Ms Bittoren’s oral evidence was consistent with her affidavit evidence and she consistently denied other works that Mr Bittoren claimed to have done on the property. Given the general findings I have made about the parties’ evidence, I accept Ms Bittoren’s.
Ms Bittoren complains about the quality of the works undertaken by Mr Bittoren. She deposes to the fact that she incurred costs to rectify or complete works undertaken by him, including $4,000 for an electrician to move the main fuse box, replacing the central heating system for about $4,000 due to a termite infestation caused by Mr Bittoren’s storage of materials at the property and $3,000 to treat the same termite infestation. That evidence was unchallenged and I accept it.
Mr Bittoren was challenged about his evidence of incurring expenses for the B Street, Suburb C property. One of the expenses he claimed to have incurred was for 6 bags of cement in January 2019. He accepted that the B Street, Suburb C property has no cement paving around it, however gave evidence “cement needed foundation”. When he was asked whether he was saying that he worked on the foundations of the B Street, Suburb C property in 2019, he said “yes”. When he was asked to confirm that was his evidence, he paused, initially saying “that’s ah…”. He was reminded he was under oath before saying “well”. I do not accept Mr Bittoren’s evidence that those bags of cement were used for the B Street, Suburb C property. There is no contemporaneous record to support his assertion and he was ultimately uncertain about it. Further, I accept Ms Bittoren’s unchallenged evidence that Mr Bittoren did not undertake any works at the B Street, Suburb C property after late 2018.
It was Mr Bittoren’s evidence that he put receipts for works done to the B Street, Suburb C property in a separate envelope and it was on that basis that he sought to rely on those receipts in support of his assertion that he incurred renovation expenses for the property totalling $66,000. Given I have not accepted his evidence in relation to some of that expenditure, I cannot be satisfied that he has in fact incurred expenses totalling that sum.
In assessing the weight to be given to Mr Bittoren’s non-financial contributions to the B Street, Suburb C property, it is relevant to observe that Ms Bittoren arranged for, and undertook, works to the property herself. That included paying for plumbing repairs, electrical work, fencing and landscaping and scaffolding for the construction of the car port, roofing and bathroom tiling. She often had friends help her to attend to minor repairs, including repairs to the central heating system.
Mr Bittoren submits that his non-financial contributions to the B Street, Suburb C property could not be described as improvements to the property, rather they should be characterised as maintenance of the property, necessary to keep the property in a habitable condition. Put in legislative terms, in effect he submits, they are contributions to the property’s conservation. There is certainly no evidentiary foundation to suggest that the works he has done to the home have improved its value.
Conclusions
Cognisant of the risks inherent with compartmentalising contributions,[23] I consider that it is helpful in order to give “coherence to the nature, form and characteristics”[24] of the parties’ contributions to observe that the overwhelming majority of the parties’ contributions occurred after their separation.
[23] Chapman & Chapman (2014) FLC 93-592 per Strickland and Murphy JJ at [101] and the cases there cited; Benson & Drury (2020) FLC 93-998 at [25] and the cases there cited.
[24] Dickons & Dickons (2012) 50 Fam LR 244 at [24].
At the time of their separation, the parties had very modest equity in the B Street, Suburb C property which approximated the $4,000 deposit Ms Bittoren had paid. Since that time, the B Street, Suburb C property has very substantially increased in value. Given that cohabitation represented only approximately one of the nearly 42 years that have elapsed since its acquisition, it would be wrong to apportion that increase in value equally between the parties.[25]
[25] Anson & Meek (2017) FLC 93-816 at [49-50].
Mr Bittoren’s financial contributions were limited to repaying a $28,000 mortgage on the property initially at a rate of between $81 and $90 per week for a period of approximately 10 years. He otherwise made no financial contributions to the support of his daughter Ms D who required extraordinary parenting contributions given her special needs. He also otherwise made no provision for the maintenance of Ms Bittoren who has essentially been reliant upon government benefits since Ms D was born.
Ms Bittoren’s extraordinary parenting contributions did not abate upon Ms D turning 18. She has continued to care for, and supervise Ms D, effectively full time. Mr Bittoren’s non-financial contributions to the maintenance of the B Street, Suburb C property are comparably insignificant.
I conclude that contributions ought be assessed overwhelmingly in favour of Ms Bittoren. I consider that a holistic assessment of the parties’ relevant contributions results in Ms Bittoren being considered to have contributed 85% of the value of the parties’ present interests in property and Mr Bittoren 15% of their value. In dollar terms, Ms Bittoren is accordingly assessed to have contributed approximately $867,500 more than Mr Bittoren.
PARAGRAPHS 79(4)(D, E, F AND G) AND SUBSECTION 75(2) FACTORS
Mr Bittoren is 76 years old and is in poor health. He attaches a medical history to his affidavit which reveals he suffers from poor hearing and numerous medical conditions.
Mr Bittoren receives the age pension at the rate of $531 per week. In his Financial Statement filed 5 May 2022, he gives evidence that he has no other income. Inconsistently, he deposes that “from time to time within the limits of the pension, I do some handyman work.”[26] In cross-examination, Mr Bittoren denied that he has been engaged in handyman jobs in the current and previous financial years. Nevertheless, when transactions in his bank accounts were put to him for purchases at hardware suppliers in 2021 and 2022, he gave evidence that “they were all not handyman jobs, some of them were my own items”. The corollary of that oral evidence is that some of the transactions relate to handyman jobs. At other points in his cross-examination, Mr Bittoren gave evidence that he occasionally continues to do handyman jobs. That evidence is consistent with the transactions in his bank statements. I accordingly find Mr Bittoren continues to occasionally undertake handyman work.
[26] Applicant’s Affidavit filed 17 June 2022.
Mr Bittoren deposes to incurring living expenses totalling $560 per week, comprising rent of $160 per week and other unparticularised expenditure of $400 per week. Despite that evidence indicating that his expenses exceed his income by $29 per week, between January 2020 and January 2021, his savings had increased by approximately $12,800, or approximately $246 per week. He accepted in cross-examination that he does not use all the money he receives each fortnight. Whilst it was suggested to him that there must be other money he has available to him in order to meet his expenses, I accept Mr Bittoren’s evidence that he lives a minimal lifestyle. I do not accept his evidence that his expenses exceed his income. I find that he is readily able to afford his reasonable standard of living. He would not otherwise be in the position of saving an average of approximately 44% of his modest aged pension.
Ms Bittoren is 70 years old. She has previously suffered from cancer. She currently suffers from numerous medical conditions.
She receives the age pension at the rate of $355.90 per week, as well as a carer’s payment of $67.50 per fortnight. Despite the modesty of that income, she has also been able to save funds, with her bank savings increasing from approximately $8,000 in February 2012 to approximately $11,100 in May 2012. Her evidence that she receives financial assistance from her mother when she visits her in Canberra was not contradicted.
Ms Bittoren is solely responsible for the care of the parties’ adult child who cannot be left alone without supervision due to her special needs. Akin to the situation the Court was faced with in D & D, Ms Bittoren’s care of Ms D is “a full-time and unrelenting task which [she] will undoubtedly carry out for the rest of her life, at least until she becomes unable by virtue of her own health to do so”.[27] There is no reason that the resulting restriction on Ms Bittoren’s lifestyle ought not be taken into account despite Ms D have attained the age of majority.[28]
[27] [2004] FMCAfam 154 at [31], quoted in Zubcic at [93].
[28] Zubcic at [94].
Whereas Mr Bittoren requires only one room in a rental premises, Ms Bittoren will always also have the need to accommodate both Ms D and herself.
At the commencement of the parties’ relationship, Ms Bittoren was solely responsible for the care of Mr E. She did not receive any financial support from Mr E’s father. To the extent Mr Bittoren supported Mr E, he was acting as a volunteer and justice requires that contribution to be taken into account.[29] However, his contributions essentially occurred only during the parties’ short periods of cohabitation and I am not satisfied that those limited contributions should result in a monetary reward in these proceedings.[30]
[29] Robb & Robb (1995) FLC 92-555 at 81,547.
[30] Zaruba & Zaruba (2017) FLC 93-776 at [54], citing R & H [2003] FamCA 125 at [23].
The effect of the relief sought by Mr Bittoren would be to deprive his daughter of the only home she has ever lived in, despite accepting in oral evidence that Ms Bittoren has put all of her efforts into the home to avoid Ms D having to live elsewhere. That he would seek such an outcome is surprising given his evidence that “Prior to Ms Bittoren divorcing me I naturally wanted Ms D to be the beneficiary of my half of the property.”[31] His oral evidence suggested that the reason for his changed position was a result of Ms Bittoren seeking a divorce some 38 years after their separation. Mr Bittoren also deposed to the following: “Ms Bittoren had remarried, I naturally wanted to retain my share of the property for the future sole benefit of my daughter against any possible claims by Ms Bittoren's new husband.”[32] But again, his position to the Court is inconsistent with his daughter ultimately retaining the benefit of any share of the property. Further, he did not object to, nor challenge, Ms Bittoren’s evidence that neither she, nor her subsequent husband from whom she has now separated “intend to pursue any property settlement against each other”. Given that evidence is uncontradicted, and neither inherently improbable nor inherently incredible, I accept it.[33]
[31] Applicant’s affidavit filed 17 June 2022, page 8, paragraph (vvv).
[32] Applicant’s affidavit filed 17 June 2022, page 8, paragraph (vvv).
[33] Re Bain (deceased) (2017) FLC 93-772 at [112] and the cases there cited.
Whilst Mr Bittoren contended for a 5% adjustment on account of relevant factors by reference to the adjustment made in Zubcic & Zubcic & Anor, I am not satisfied that the adjustment ought be so limited. Ms Bittoren continues to make extraordinary contributions to the care of Ms D.
I consider the relevant factors warrant a 10% adjustment to the contributions assessment in favour of Ms Bittoren. That adjustment will lead to a further difference between the parties’ net asset positions of approximately $124,000.
CONCLUSIONS
In order to give effect to the above conclusions, Mr Bittoren needs to retain assets worth 5% of the value of the parties’ interests in property, equating to assets worth $61,964. He has assets worth $47,068. Accordingly, he would be required to receive a cash payment from Ms Bittoren of $14,896.
Ms Bittoren’s unchallenged evidence is that she has no capacity to borrow funds to make any payment to Mr Bittoren. She does, however, have savings of approximately $11,000.
Noting that justice and equity permeates the whole process of the determination of section 79 claims,[34] I am not satisfied that it just and equitable for Ms Bittoren to be required to sell the only home Ms D has lived in her entire life in order to pay Mr Bittoren a further sum of less than $4,000.
[34] Bevan & Bevan (2013) FLC 93-545 per Bryan CJ and Thackray J at [86]; Carlson & Carlson (2019) FLC 93-934 at [57].
I consider it just and equitable for Ms Bittoren to be required to pay Mr Bittoren the sum of $11,000 and otherwise retain the B Street, Suburb C property. I will allow 28 days in order for that to be achieved. Neither party propose any other alteration of their property interests. Ms Bittoren proposes an order that the parties retain their respective superannuation interests. I decline to make that order in the absence of any evidence that either party has any such interest. I otherwise consider the orders sought by her to be just and equitable.
I certify that the preceding seventy three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 28 September 2022
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