BLIGHT and TAIT

[2019] FCWA 66

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: BLIGHT and TAIT [2019] FCWA 66

CORAM: DUNCANSON J

HEARD: 12 & 13 FEBRUARY 2019

DELIVERED : 29 MARCH 2019

FILE NO/S: PTW 7316 of 2016

BETWEEN: MR BLIGHT

Applicant

AND

MS TAIT

Respondent

Catchwords:

PROPERTY - Where it is just and equitable to make a property settlement order - Where the wife failed to establish that the husband has undisclosed property - Where the husband's contributions after separation are greater than those of the wife - Adjustment in favour of the husband for s 75(2) factors

Legislation:

Family Law Act 1975 (Cth) s 75(2), s 79, s 106A

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr S Jones
Respondent	:	Self-Represented Litigant

Solicitors:

Applicant	:	West Coast Legal
Respondent	:	Self-Represented Litigant

Case(s) referred to in decision(s):

Jones v Dunkel (1959) 101 CLR 298

Khademollah v Khademollah (2000) FLC 93-050

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Blight and Tait has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1The husband, [Mr Blight] and the wife, [Ms Tait], seek orders for property settlement.

BACKGROUND

2The husband was born [in] 1958, he is 61 years of age. He is a [truck driver].

3The wife was born [in] 1966, she is 52 years of age. She is a [hairdresser].

4The parties commenced cohabitation in November 2005. The parties married on 25 May 2006. They separated on 24 August 2016 and lived separately under one roof until November 2016.

THE PROCEEDINGS

5The husband commenced these proceedings when he filed an initiating application on 29 November 2016.

6The parties attended a conciliation conference on 12 October 2017, when orders for disclosure were made together with orders programming the matter to a readiness hearing.

7The husband filed his trial affidavit. The wife did not.

8On 21 May 2018, it was ordered that the husband file an undertaking as to disclosure and a financial statement within 14 days. The wife was ordered to file an undertaking as to disclosure and her trial affidavit within 7 days.

9The wife did not comply with this order.

10The husband sought to proceed on an undefended basis.

11On 3 December 2018, the following orders were made:

1The Respondent, [MS TAIT] file a Notice of Address for Service within 7 days.

2Within 21 days, the Respondent shall:

(a)comply with her duty of disclosure and file an undertaking as to disclosure;

(b)file and serve a single stand alone affidavit setting out the whole of her evidence, with no more than 15 annexures

3In the event the Respondent fails to comply with the orders above, subject to any contrary direction of the Trial Judge, the Applicant, [MR BLIGHT] have leave to proceed on an undefended basis.

4The Respondent pay the applicant’s costs in respect of this application and the attendance today fixed in the sum of $750, with costs to be paid within 28 days of a property settlement decision.

12The wife filed a notice of address for service. She did not otherwise comply with the orders dated 3 December 2018.

13The wife attended the trial on 12 February 2019. She was self‑represented. She sought to rely on documents already filed and bundles of papers which she brought with her to Court. Notwithstanding her non-compliance with orders to file documents, I permitted her to participate in the proceedings. The wife did not seek to adjourn the proceedings and the husband sought to proceed. The trial went ahead on a defended basis.

14The wife declined the opportunity to see the Duty Lawyer. I explained the trial procedure to her and I endeavoured to clarify her submissions where appropriate.

THE ORDERS SOUGHT

15The orders sought by the husband are contained within an amended minute of proposed final orders filed 6 February 2019. The husband proposes that within 60 days, the wife transfer her interest in [Property A] to him and he indemnify her against all liabilities with respect to Property A.

16The husband proposes that contemporaneously with the transfer of Property A, he transfer his interest in [Property B] to the wife. At trial the husband proposed that the wife receive Property B unencumbered and he would refinance the loan in respect of that property into his sole name.

17The parties would otherwise retain the assets and liabilities in their respective names and possession.

18At trial the husband sought an order pursuant to s 106A of the Family Law Act 1975 (Cth) ("the Act"), that the Principal Registrar be appointed to execute documents on behalf of the wife in default of her doing so.

19The effect of the husband's proposal was with reference to his asset and liability schedule which became Exhibit 1, an overall division very close to equal.

20In her response filed 3 February 2017, the wife sought orders that the husband transfer to her his interest in Property A and Property B and she would discharge the mortgages relating to the properties and refinance the loans into her sole name. The wife also proposed to pay to the husband an amount sufficient to effect an overall division of property which would be particularised after she considered the husband's disclosure. In the event she did not particularise that division of property. The wife also proposed that the parties otherwise retain the assets and liabilities in their respective names.

21At trial the wife confirmed she wanted Property A.

THE PARTIES AND THE EVIDENCE

22The husband was represented by counsel. He relied on his affidavit filed 16 May 2018 and a financial statement filed 12 June 2018.

23The wife was a self-represented litigant. She relied on her affidavit and a financial statement filed on 3 February 2017. The wife also relied on her written opening statement dated 13 February 2019, which became Exhibit 19.

24Both parties gave some evidence by way of update.

25The husband gave his evidence in a carefully considered way and it was mostly reliable. At times the wife's questions were confusing and difficult to answer. However, where the husband disagreed with a proposition he firmly stated so.

26The wife had not complied with her duty of disclosure. She brought to Court a number of files containing documents which were made available for inspection by the husband's counsel prior to the hearing. Although she did her best to cross-examine the husband, she was disorganised and chaotic. On several occasions she put a proposition to the husband which she said was established by documents which she provided to him. Invariably the documents did not support the proposition she was making. On many occasions the documents were unrelated to matters at issue. I have had to do the best I can to deal with the evidence as I consider it to be relevant to the matters at issue.

27The thrust of the wife's case is that the husband owns property which he has not disclosed and that over the years he has applied joint funds to the acquisition of assets which he has not disclosed in these proceedings. In particular as discussed below, the wife asserted the husband owns several items of real estate, which he denies.

28During the course of the trial, the husband applied to call [Mr A] as a witness to give evidence regarding the ownership of property. Mr A is the owner of [Property C] being one of the items of real estate which the wife alleged was owned by the husband. I granted the application and Mr A gave evidence by telephone and was cross-examined. His evidence was reliable and of assistance to me. Not only did he give evidence regarding Property C owned by him, but also in relation to other blocks of land which the wife asserted were owned by the husband.

29It is for the wife to satisfy me on the balance of probabilities that there are undisclosed assets. She must do that based on evidence and not speculation. As discussed below, the wife has not so satisfied me.

30At times the wife was evasive. In cross-examination, she frequently answered a question with a question. In certain aspects of her evidence she was untruthful. For example, I do not believe her evidence regarding the sale of the caravan.

31Where the evidence of the parties differs, I prefer that of the husband.

SHORT FINANCIAL HISTORY

32At the commencement of cohabitation the husband owned [Property D] and also [Property E]. The wife owned [Property F], where the parties lived when they began living together.

33In July 2006 the parties purchased Property A for $189,000. They borrowed $179,000 which was added to the mortgage of the husband's Property D.

34The wife sold Property F in 2006.

35The proceeds of the sale of Property F were used to pay the mortgage of Property A and also contributed to payment for the building of the house which cost approximately $300,000.

36In October 2007 the husband sold Property D for $350,000, the proceeds of which was paid into the parties' joint account.

37Both parties were in employment.

38The parties made improvements to Property A.

39In April 2012 the parties purchased Property B for about $400,000 as an investment property. They lived in Property B for about two years. It was subsequently rented to the wife's family.

40When the parties separated in August 2016 they remained living together in Property A until the husband obtained a Violence Restraining Order in November 2016.

41At separation in August 2016, Property A had a loan balance of approximately $3,000. However the wife subsequently drew funds from that loan.

42The loan in respect of Property B in October 2016, was approximately $186,000.

43After separation the wife made withdrawals from the home loan accounts as follows:

•the sums of $141,483 and $1,942 from the [Bank A Investment Loan Account]; and

•the sums of $10,000, $3,000, $2,000, $2,000, $12,000 and $163,014 from the [Bank A Repay Home Loan Account].

44On 13 December 2016, an order was made by consent, that the wife be restrained by injunction from disposing of monies standing to her credit in the sum of approximately $300,000 in a Bank A savings account without the prior consent of the husband. It was further ordered that the interest be credited to the account.

45In June 2017 the parties agreed to divide the funds in their joint Bank A account such that the wife received $70,000 and the husband received $55,000 by way of partial property settlement.

46On 17 April 2018, orders were made by consent in terms of a Minute dated 27 November 2017, providing that within seven days the wife cause the transfer of $240,000 to the loan account in respect of Property B and that she receive the sum of $60,000 of the funds held in the Bank A account. The amount of $60,000 received by the wife was to be characterised as an interim partial property settlement.

47The husband cancelled the Violence Restraining Order on 24 February 2017 after which time the wife attended Property A and removed items.

48In March 2017 the wife removed [Motor Vehicle A] from Property A.

49On 29 January 2018, Property B was valued by [Property Valuers A] in the sum of $405,000. On 25 January 2018, Property A was valued by Property Valuers A in the sum of $460,000.

THE LAW

50These proceedings are governed by s 79 of the Family Law Act 1975 (Cth) ("the Act").

51Orders altering the property interests of the parties may only be made if the Court is satisfied that it is just and equitable to make such orders. The Court's discretion must be exercised in accordance with legal principles and the Court must not assume the parties' interests in their property are, or should be different from those determined by common law and equity.

52It is necessary firstly to identify the existing legal and equitable interests of the parties in their property.

53Having identified the existing legal and equitable interests of the parties in their property, it is necessary to ascertain whether it is just and equitable to make an order altering the interests of the parties in their property. In that process it is permissible to consider the contributions of the parties, but to do so is not mandatory, nor it is conclusive as to whether the just and equitable test has been met.

54If and when the Court determines it is just and equitable for the parties' interests in their property to be altered the Court must identify and assess the contributions of the parties within the meaning of ss 79(4)(a), (b) and (c) of the Act. The Court must then identify and assess the relevant matters referred to in ss 79(4)(d), (e), (f) and (g) of the Act which include those in s 75(2).

THE EXISTING PROPERTY INTERESTS OF THE PARTIES

55There was much in dispute between the parties. Having regard to the evidentiary difficulties I have had to do the best I can to determine the disputed items. The husband provided an asset and liability schedule which became Exhibit 1.

The husband's motor vehicles

56The husband estimated the value of his [motor vehicles] to be $58,350 based on the Red Book and estimates.

57The husband listed the [motor vehicles] and their values as follows:

•[Motor Vehicle B] - $100

•[Motor Vehicle C] - $800

•[Motor Vehicle D] - $5,200

•[Motor Vehicle E] - $8,280

•[Motor Vehicle F] - $5,000

•[Motor Vehicle G] - $5,000

•[Motor Vehicle H] - $33,970

58The wife asserted that the husband owned the following [motor vehicles] with values as set out below:

•[Motor Vehicle I] - $50,000

•Motor Vehicle C - value not known

•[Motor Vehicle J] - $3,000

•[Motor Vehicle K] - $50,000

•Motor Vehicle H - $30,000

•Motor Vehicle E - $8,000

•Motor Vehicle F - $42,000 if done up

•[Motor Vehicle L] and [Motor Vehicle M] - $15,000 and $42,000 respectively.

59The wife provided no evidence in support of her assertions as to the husband's ownership of these vehicles or their value.

60It is ordinarily incumbent upon the person asserting the value of chattels to provide evidence to support the assertion (Khademollah v Khademollah (2000) FLC 93-050). Upon the evidence I am not persuaded that the husband owns the vehicles at the values asserted by the wife.

61I accept the husband's evidence as to the vehicles owned by him and their value. The vehicles are in his possession. He is aware of their condition and his evidence as to their value is reliable.

The husband's tractor

62The husband owns [Tractor A] which he said is worth $13,500 having been purchased for a price of $14,000. He refers to a valuation from [Business A]. The wife asserted the husband also owns [Tractor B] worth $20,000. The husband said he did not buy Tractor B although he did order [Motor Vehicle N] for the wife. The bank statements produced by the wife and shown to the husband did not establish the purchase of Tractor B.

The husband's furniture and contents

63The husband estimates the value of his furniture and contents to be $1,000. The husband deposed the wife entered Property A while he was away and removed all furniture apart from a single bed, a couch and a TV cabinet without the television. He annexed photographs of empty rooms to his affidavit. The wife did not dispute she removed furniture from the home. She estimated the value of the husband's furniture and contents to be $5,000 on the basis that the parties bought a speaker for $3,000 shortly before separation. The wife provided no evidence to support her assertion. Applying the principles in Khademollah (supra) I accept the husband's estimated value of his furniture and contents.

The husband's superannuation

64The husband said the value of his [Superannuation Fund A] as at 29 January 2019 was $291,836. The wife disagreed and claimed she had paperwork which established his superannuation was of greater value. She did not produce such paperwork or other evidence to support her assertion as to a greater value.

65When the husband filed his financial statement on 12 June 2018, his Superannuation Fund A had a gross value of $278,357. I accept his evidence that the value as at 29 January 2019 was $291,836.

Motor Vehicle A

66The husband included in his asset and liability schedule "the wife's [Motor Vehicle A]" at a value of $50,000. The husband deposed that in March 2017 the wife removed Motor Vehicle A from Property A and in March 2018 asked for it to be transferred to her name. She sent him a partially completed ownership transfer form, which she requested he sign. The husband later discovered the wife had sold Motor Vehicle A to her [relative], [Mr B] for $45,000. The wife completed the form and included Mr B's details as the buyer. The husband said he attended the Department of Transport, [Suburb A] branch to view the transfer document and an employee there recalled a person fitting the wife's description attending the office and lodging the transfer.

67The wife deposed that in 2009 the parties purchased Motor Vehicle A for approximately $75,000. The wife said the husband sold Motor Vehicle A to her relative without her knowledge for $50,000. When asked about this, the wife said she had not spoken to her relatives.

68It was open to the wife to call her relative to give evidence about this. She did not do so. Applying the rule in Jones v Dunkel (1959) 101 CLR 298 I infer the relative's evidence would not have assisted her.

69I accept the husband's evidence that the wife removed Motor Vehicle A and sold it to her relative. His evidence regarding the transfer document was plausible.

70I do not intend to include Motor Vehicle A in the balance sheet. It is not in the possession of either of the parties and both parties say it has been sold. I shall take into account the wife's disposal of this item in respect of which she received $45,000, funds she no longer has, when taking into account matters relevant to s 75(2) and in particular s 75(2)(o).

Motor vehicle parts

71The husband asserted the wife has [motor vehicle parts] valued at $24,000. The wife denied this and asserted the husband has motor vehicle parts worth $80,000. In evidence the husband said he had motor vehicle parts worth $24,000 in his office and all have gone. He described them as bits and pieces of motor vehicles which he would be doing up. The wife denied she was responsible for moving motor vehicle parts from Property A and said the husband arranged for his friends to pick up some [motor vehicles]. When asked why he would remove his own motor vehicle parts from the property, the wife responded "I don't know. Maybe it was getting dusty where it was?" I accept the husband's evidence that the wife removed motor vehicle parts from the property with an estimated value of $24,000. I find his evidence in this respect to be more reliable than that of the wife.

72I do not intend to include the sum of $24,000 as an asset of the wife in respect of motor vehicle parts. Upon her evidence, they are not part of her assets. I will take into account the disposal of these items by the wife when considering s 75(2)(o).

Building equipment

73The husband deposed that in August 2017 upon his return from work he noticed the wife had removed all the [building equipment] valued at approximately $11,000 that he intended to use to [renovate]. He deposed she had given the building equipment to her relative and he photographed the building equipment at the relative's property in [Suburb B]. When asked about this, the wife said some of it was left at her [relative's] house and some went back and was used by the husband. She said she moved only half of it because it was hers.

74I accept the husband's evidence in this respect. He has provided an invoice for the purchase of the building equipment and photographs of it at the property of the wife’s relative. It seems the building equipment exists although it is in the possession of the wife's relative. I will include this as an asset of the wife in the balance sheet.

Property A and other properties

75Property A is [Lot 1] on the plan attached to the report and valuation of Property A by Property Valuers A dated 30 January 2018. The wife asserted that the husband owns [Lots 2, 3, 4, 5, 6 and 7]. The wife's case was that the husband had purchased these properties in the names of other persons using the parties’ joint funds. Her evidence regarding the ownership of the Lots was confusing and difficult to follow.

76The wife said Lots 5 and 6 were joined as one property. Lot 5 is owned by Mr A, which the wife said was one of the husband's other names.

77The wife asserted the husband also owns Lot 2 upon which he has put a shed. She asserted he owns Lot 4 upon which he has put a shed with a whirlybird.

78The parties' home on Lot 1 was built by [Building Company A]. The wife asserted that the husband paid Building Company A to build two houses and that the second house was built on Lot 7. The bundle of documents from Building Company A, all refer to [a] contract number which is the proposed residence at Lot 1, which is Property A. These documents do not support the wife's assertion that a second Building Company A home was built on Lot 7 for the husband. The husband said, and I accept that the parties had only one home built.

79The wife asserted that the properties were purchased with funds from the parties bank accounts. However the withdrawals which she drew the husband's attention to in cross-examination demonstrate that relatively small amounts of money were withdrawn from the parties' bank account. They do not establish that funds were withdrawn by the husband, sufficient to purchase other properties.

80Mr A was called as a witness by the husband. He gave evidence by telephone from his place of work. Mr A said he and his wife own Lot 5 which was purchased by them in late 2009/early 2010. He said the owner of the property adjacent to him, Lot 4 is [Mr C] who bought the property recently. He said the owner of Lot 6 is [Ms D] and her husband who bought the property in 2008.

81Mr A said Lot 2 was bought about two and half years ago and the owner built a shed and a home on the property. He had met the owner, who was a person of medium build, with orange hair. (That description does not fit the husband). He had also seen the owner's wife, who may be [Nationality A] and they had a small child.

82Mr A said Lot 3 had been purchased in the last six months. He had met the owners who are a couple living in [Country Town C].

83The wife had an opportunity to cross-examine Mr A. She put to him that he had a [motor vehicle] at his gate, which he denied. He also corrected her as to the sign at the front of his block.

84The wife was asked about the occupants of Lot 2. Her evidence in this respect was very strange. She said the husband's Nationality A girlfriend occupies Lot 2 and lives with the "orange head". She also said the husband has a love child.

85The evidence did not establish that the husband owns other Lots in Country Town C. I accept the detailed evidence of Mr A which I found to be entirely reliable.

86In an email by the wife to the husband's solicitor dated 4 November 2016, the wife referred to other properties which she wrote had been sold by the husband. When asked about [Property G], she said she did not know why she thought he owned that property. In the same email she referred to Property H and when asked about this she said that there was paperwork, which she did not produce, indicating that a group of people bought (presumably including the husband) some houses, but she could not prove it. The email also referred to [Property I]. The wife said she could not prove "it" because her paperwork had been stolen. Her explanation as to the theft of her paperwork from Property B was implausible.

87The wife affirmed the affidavit upon which she relied on 3 February 2017. In it she deposed she did not know what the husband did with funds withdrawn by him from the parties' bank account. Nowhere in her sworn evidence did she assert that he owned any other properties, either Lots at Country Town C or the other properties referred to in her email dated 4 November 2016. The wife identified the assets and liabilities as she knew them and made no reference to other properties owned by the husband. Annexure A to the wife's affidavit includes spreadsheets showing withdrawals from bank accounts. The first spreadsheet refers to the parties Bank A Investment Loan Account for the period 1 May 2009 to 28 October 2016. Many of the withdrawals are of small amounts of about $1,000 and span a six and a half year period. Also annexed is a spreadsheet in respect of the Bank A Repay Home Loan Account with some larger transactions. These spreadsheets, which the wife is unable to vouch for accuracy, do not support the wife's contention that the husband has acquired other properties.

Partial property settlement payments

88In about June 2017 the parties agreed to divide the sum at credit of their joint Bank A account of $125,000. The wife received $70,000 and the husband received $55,000. The husband deposed these payments were received by each of them by way of a partial property settlement.

89Pursuant to the April 2018 orders, the wife received a further sum of $60,000 by way of partial property settlement. I do not intend to include any of these payments in the balance sheet. They have been applied to payment of legal costs and living expenses. I am satisfied that with respect to the wife, the funds no longer exist. With respect to the husband, the current balances of his bank accounts are included in the balance sheet. I will take into account the parties receipt of these funds when considering s 75(2)(o).

Legal costs

90The husband has paid legal costs of $28,000 and $16,548 is held in the trust account of his solicitor. The source of these funds, in the sum of $44,548 has been the husband's earnings and savings.

91The wife has paid legal costs of $31,000. These were incurred on her credit card and subsequently paid when the parties divided the proceeds of their joint bank account and each received funds.

92In my discretion I intend to include the parties' paid legal costs in the balance sheet. Their costs have been paid, in the case of the husband partly with his post-separation earnings and in the case of both parties with the funds they received by way of partial property settlement.

The parties' liabilities

93The husband has two credit card debts in the amount of $154 and $668. These appear to have been incurred post-separation. The wife said she has a credit card debt of $20,000 of which $10,000 was incurred by improving Property B. The debt was not vouched, nor was there any evidence in support of the wife's assertion that she had improved Property B. The balance of the debt was incurred in respect of the wife's living expenses.

94The wife said she has a debt to her mother and step-father of $15,000.

95These liabilities were incurred after separation. Both parties received funds after separation when they divided their bank account. The wife received a further partial property settlement payment.

96I do not intend to include these liabilities in the balance sheet. I refer below to these liabilities when discussing matters relevant to s 75(2)(o).

97The property of the parties is as set out in the balance sheet below. The numbers in the left hand column accord with the line item number in Exhibit 1.

ASSETS AND SUPERANNUATION	Ownership	Value
1	Property A	J	$460,000
2	Motor vehicles	H	$58,350
3	Tractor A	H	$13,500
4	[Bank B Account A]	H	$2,142
5	[Bank A Account B]	H	$22,844
6	[Bank A Account C]	H	$20,935
7	Tools	H	$2,000
8	Furniture and contents	H	$1,000
9	Superannuation	H	$291,836
10	Property B	J	$405,000
11	Motor Vehicle N	W	$40,000
14	Building equipment	W	$11,000
16	Furniture and contents	W	$2,000
17	Superannuation	W	$44,000
Box Trailer	W	$200
Legal costs paid or in trust	H	$44,548
Legal costs paid	W	$31,000
TOTAL	$1,450,355
LIABILITIES
21	Property A mortgage – Bank A	J	$136,582
22	Property B mortgage – Bank A	J	91,055
TOTAL	$227,637
TOTAL NET ASSETS AND SUPERANNUATION	$1,222,718

IS IT JUST AND EQUITABLE TO MAKE A PROPERTY SETTLEMENT ORDER?

98The parties separated in 2016. Both parties seek a property settlement order.

99Following the irretrievable breakdown of their marriage and in circumstances where there is no longer common use of property, the parties seek to alter their property interests and to separate their financial affairs.

100In these circumstances I find it is just and equitable to make a property settlement order.

CONTRIBUTIONS

101At the commencement of cohabitation the husband owned Property D with an estimated value of $300,000. The husband said Property D was debt free. The wife deposed that Property D had a mortgage of around $130,000, but she did not know how much equity the husband had in Property D at the commencement of cohabitation. The husband previously owned Property D jointly with his first wife. He acquired her interest in it in 2002. The husband had solely owned the property for several years before meeting the wife. He had been in employment. I accept his evidence that nothing was owing in respect of the mortgage over Property D.

102The husband also owned Property E purchased shortly before cohabitation at a price of between $280,000 and $350,000. The net sale proceeds were applied to an associated tax debt. This is not inconsistent with what the wife wrote in her opening statement which was that the husband told her he had to pay $50,000 for selling the property early, having only owned it for 11 months. However she went on to say in her statement that was not the case and she now realises the husband had $90,000 which he used to purchase a property secretly. There is no evidence of this and I do not accept it. The husband owned a motor vehicle worth $70,000. He was employed as a truck driver earning between $60,000 and $70,000 gross per annum.

103At the commencement of cohabitation the wife owned Property F in respect of which the husband estimates the value to be $400,000. Property F was sold in 2006. The wife said she received net proceeds of $430,000. The husband estimated the net proceeds received by the wife after paying out her former husband to be approximately $340,000. I cannot be certain what the net proceeds were. The wife owned a motor vehicle which she said was worth $50,000 although in her opening statement she said it was worth $30,000 and she had a motor vehicle worth $18,000. The husband said the vehicle had a debt, which was paid out in the sum of $20,000 when Property F was sold, reducing the net proceeds of Property F to $320,000.

104Property D was sold for approximately $350,000 in 2007. The proceeds of both Property F and Property D were paid into the parties' joint account and applied to Property A.

105At the commencement of cohabitation the wife was in employment earning approximately $31,000 per annum.

106Both parties worked hard during their relationship. Their income from employment as known is as set out below:

Husband's income:
2012 to 2013	$198,921
2013 to 2014	$267,417
2014 to 2015	$343,767
2015 to 2016	$310,501

Wife's income:
2007	$49,153
2008	$79,356
2009	$48,281
2010	$33,218
2011	$147,658
2012	$130,912
2013	$119,826
2014	$165,718
2015	$114,065

107During the relationship the parties purchased [various motor vehicles]. They made various improvements to Property A including a large shed, enclosed carport, decking, a front patio and concreting around the property.

108After the parties purchased Property B it was rented to members of the wife's family.

109During the parties' relationship the husband provided emotional support to the wife. The wife was the primary homemaker while the husband attended to the upkeep and maintenance of Property B and Property A.

110Since separation the husband has occupied Property A and maintained it.

111Since separation the husband has paid the repayments of the loan in respect of Property A and the additional interest payable on the loans in respect of both Property B and Property A as a consequence of the wife's withdrawal of funds. The husband estimated that by reason of the wife’s withdrawals the interest payable on the Property B loan increased from $227 to $1,200 per month and the interest payable on the Property A loan increased from $4 to $600 per month. The husband deposed that he had no choice but to make these repayments to ensure his credit rating would not be adversely affected.

112Property B was rented to a member of the wife's family. The rent was not paid into the rental account which off-set the mortgage payments as the wife redirected the funds to herself. She has continued to receive the rental income.

ASSESSMENT OF CONTRIBUTIONS

113Both parties owned property and motor vehicles at the commencement of cohabitation. Upon the evidence I cannot make precise findings as to value. I consider their contributions at the commencement of cohabitation were not dissimilar in value.

114During the relationship both parties were employed. The husband's earnings were greater than those of the wife. Both parties made non-financial contributions during their relationship.

115After the parties separated the husband's contributions exceeded those of the wife. He maintained Property A. The husband has paid the repayments in respect of the Property A and Property B mortgages for about two and half years.

116I have considered the parties differing contributions in the particular circumstances of their relationship from the commencement of cohabitation to date of trial.

117In my assessment by reason of contribution the percentage division should be 52.5% to the husband and 47.5% to the wife.

118The effect of this finding as to contribution is that the husband is entitled to receive property to a value of $641,927 and the wife is entitled to receive property to a value of $580,791.

SECTION 75(2) FACTORS

119The husband is 61 years of age. He is a truck driver. The wife is 52 years of age. The wife informed the Court on 3 December 2018, that she had obtained [new employment]. At trial she said she was unemployed at the time but hoping to work from Property A.

120The husband was last contracted with [Company B], as a supervisor. This contract ceased [in] December 2018. The husband was in receipt of a gross annual salary of $213,000. The husband is currently unemployed but intends to find work in Perth.

121The wife's last known gross annual salary was $114,000 in 2015. She is currently in receipt of rental income of $250 per week from Property B.

122Both parties have the capacity for appropriate gainful employment. The husband has a greater earning capacity than the wife but he is eight years older than her.

123The parties’ property to the extent that it is known is as set out above.

124The husband's financial commitments include servicing the mortgages in respect of Property A and Property B. The wife is living with her family who are meeting her expenses.

125The parties enjoyed a good standard of living during their marriage. Both had high incomes and available funds to purchase expensive goods and improve Property A.

126The husband is not in a relationship. The wife says she is no longer in a relationship.

127Both parties seek an order that they receive Property A. I refer to this below when considering the justice and equity of the orders.

128As to any fact or circumstance that the Court should take into account, the wife has not complied with her duty of disclosure. In these circumstances it is open to the Court to take a robust approach to the evidence.

129The wife asserts that the husband has not disclosed his ownership of properties and in that respect has not complied with his duty of disclosure. I reject the wife's assertion of financial misconduct on the part of the husband and in particular her assertion that he syphoned funds from their joint account during the relationship, which he subsequently applied to his own purposes including the acquisition of undisclosed property.

130The parties earned significant sums during their relationship. They bought two properties. It is clear from their evidence that between them they purchased expensive motor vehicles. They built a home on Property A and over the years made various improvements to it.

131The wife received part property settlement amounts in the sum of $70,000 and $60,000 neither of which have been included in the balance sheet except to the extent that they were applied to payment of legal costs.

132The wife has not worked since early 2017. It is likely that except for payment of legal costs, the part property settlement amounts received by the wife have been applied to her living expenses, in circumstances where she did not have income from employment.

133The husband received a partial property payment of $55,000 which has also not been included in the balance sheet, except to the extent that the funds were applied to legal costs or remain in a bank account.

134The wife removed items from the home and disposed of them, including furniture, motor vehicle parts worth $24,000 and Motor Vehicle A which she sold for $45,000. She has had the benefit of these funds and she has not accounted for them.

135After the parties separated the wife removed items from Property A. She caused damage to Property A including to the fence and security system and the husband will incur expenses in repairing the damages which he estimated to be $3,500 in repairs and $1,600 for the security system.

136I consider the s 75(2) factors warranting an adjustment to be the wife's disposal of assets, her lack of disclosure and her conduct in damaging Property A.

137In my assessment having regard to the s 75(2) factors as a whole, I consider an adjustment of 2.5% in favour of the husband is warranted. 2.5% of the parties' property is $30,568.

JUST AND EQUITABLE

138The overall division of property will be 55% to the husband and 45% to the wife.

139The total of the parties' property is $1,222,718. The husband's entitlement is $672,495. The wife's entitlement is $550,223. There is a differential of 10% or $122,272.

140Both parties seek to acquire Property A by way of property settlement. The husband has lived there continuously since the parties acquired the property. The wife says she previously owned a home in the country and wants to live in Property A with her [pet].

141The wife left Property A in October 2016 after the husband obtained a Violence Restraining Order against her by reason of her conduct. Since that date the husband has occupied Property A and maintained it. He has paid the loan repayments and continues to do so. The wife damaged the property and the husband has carried out some repairs himself and obtained quotes for the cost of other repairs. The wife's family occupied Property B. Since separation she has received the rental income from it. She said she had improved Property B, although there was no evidence of this. I consider a just and equitable outcome would be that the husband acquire the wife's interest in Property A and that the wife acquire the husband's interest in Property B.

142The husband retains the following:

ASSETS AND SUPERANNUATION	Value
Property A	$460,000
Motor vehicles	$58,350
Tractor A	$13,500
Bank B Account A	$2,142
Bank A Account B	$22,844
Bank A Account C	$20,935
Tools	$2,000
Furniture and contents	$1,000
Legal costs (added back)	$44,548
Superannuation	$291,836
TOTAL	$917,155
LIABILITIES
Property A mortgage – Bank A	$136,582
Property B mortgage – Bank A	91,055
TOTAL	$227,637
TOTAL NET ASSETS AND SUPERANNUATION	$689,518

143The wife retains the following:

ASSETS AND SUPERANNUATION	Value
Property B	$405,000
Motor Vehicle N	$40,000
Building equipment	$11,000
Furniture and contents	$2,000
Superannuation	$44,000
Box Trailer	$200
Legal costs (added back)	$31,000
TOTAL NET ASSETS AND SUPERANNUATION	$533,200

144If each party retains the property as set out above, the husband will retain property with a net value of $689,518. The wife will retain property with a net value of $533,200. To achieve the percentage division ordered, the husband will have to pay to the wife the sum of $17,023.

145Both parties will own a home. The wife's Property B will be unencumbered. The husband has significantly greater superannuation than the wife, however he will take on the liabilities in respect of both properties totalling $227,637.

146Although the husband has a greater earning capacity than the wife, he is older than her. It is likely he will continue in employment to repay these loans.

147The wife is capable of employment. She will be able to occupy Property B, or she may choose to continue to rent it out.

148The wife will receive a relatively small cash payment from the husband which she may choose to apply to her outstanding debts.

149Both parties came into the relationship with a property and a motor vehicle. Both leave the relationship with such assets. In the case of the husband, his superannuation has increased significantly, but he assumes responsibility for the parties' debt.

150Having regard to the above and in the context of this relationship, I am satisfied that the orders I make reflecting this outcome are those which are just and equitable.

151I intend to make the orders sought by the husband that pursuant to s 106A of the Act, the Principal Registrar of the Family Court of Western Australia is appointed to execute the transfers of land and all deeds and documents in the name of the wife as may be required to give effect to the orders for the transfer of Property A and Property B. I will make this order because in the past the wife has not complied with orders and the husband should not be put to further expense in enforcing the orders for the transfer of properties.

THE PROPOSED ORDERS

152Subject to hearing from counsel for the husband and from the wife, I propose to make the following orders.

1Within 60 days:

(a)the wife shall do all such things and sign all documents that may be required to transfer to the husband at the husband's expense, all of her right, title and interest in the real property known as [Property A];

(b)the husband do all such things and sign all documents that may be required to transfer to the wife at the wife's expense, all of his right, title and interest in the real property known as, [Property B].

2Contemporaneously with the transfers referred to in sub‑paragraphs 1(a) and 1(b) the husband shall:

(a)discharge the mortgages to [Bank A] in respect of [Property A] and [Property B] and refinance the loans into his sole name; and

(b)pay to the wife the sum of $17,023.

3Any interest of the wife in the following vest in the husband absolutely:

(a)the husband's motor vehicles;

(b)[Tractor A];

(c)furniture and contents in the husband’s possession;

(g)the husband's bank accounts; and

(h)the husband's [Superannuation Fund A].

4Any interest of the husband in the following vest in the wife absolutely:

(a)the wife's [Motor Vehicle N];

(b)[building equipment];

(c)the wife's furniture and contents;

(e)the box trailer; and

(g)any superannuation, insurance policies and entitlements held in the wife’s name.

5The husband and the wife indemnify each other against any and all debts of whatsoever nature and description including any credit cards in their names, whether incurred prior to or during cohabitation of the parties or subsequently, not specifically dealt with by these orders.

6In default of the wife doing all acts and things and executing all such documents as are necessary to give effect to these orders, the Principal Registrar of the Family Court of Western Australia is appointed pursuant to s 106A of the Family Law Act 1975 to execute all transfers of land and all deeds and documents in her name and do all such acts and things necessary to give validity and operation to the said deeds and documents.

7The parties have liberty to apply with respect to the implementation of these orders.

8The proceedings otherwise be dismissed.

9In relation to material tendered as an exhibit into evidence in these proceedings:

(a)all parties must collect the exhibits tendered by them (“their exhibits”), from the chambers of Justice Duncanson, at least 28 days, and no later than 42 days, from today’s date;

(b)all parties must contact the chambers of Justice Duncanson to arrange the collection of their exhibits;

(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the Court without notice to the parties.

10In the event of an appeal being lodged prior to the expiration period of 42 days, paragraph 10 above does not apply.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

RM

Associate

29 MARCH 2019