BORG & BOSCO

[2019] FCCA 66

FEDERAL CIRCUIT COURT OF AUSTRALIA

BORG & BOSCO [2019] FCCA 66

Catchwords:
FAMILY LAW – Property dispute – parties cohabitating from 1999-2005 and then separating – parties reconciling in 2011, marrying in 2013 and finally separating in 2017 – parties effecting property settlement in 2007 – weight to be given to settlement and to contributions from 1999-2005 – husband owning the matrimonial home before 1999 – matrimonial home being the parties’ primary asset – division of property 60/40 in favour of the husband.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

In the Marriage of Kowalski (1993) FLC 92-342

Stanford v Stanford [2012] HCA 52
Kennon v Kennon (1997) FLC 92-757

Applicant: MS BORG

Respondent: MR BOSCO

File Number: DGC 1245 of 2018

Judgment of: Judge Burchardt

Hearing dates: 12 & 13 November 2019

Date of Last Submission: 13 November 2019

Delivered at: Dandenong

Delivered on: 18 January 2019

REPRESENTATION

Counsel for the Applicant: Ms Dunlop

Solicitors for the Applicant: Featherbys

Counsel for the Respondent: Mr Robinson

Solicitors for the Respondent: Freeman Family Law

IT IS NOTED that publication of this judgment under the pseudonym Borg & Bosco is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1245 of 2018

MS BORG

Applicant

And

MR BOSCO

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an unusual property case.  The parties first cohabitated in late 1999 and stayed together until 2005 when they separated.  They entered into an agreement to divide their then property in 2007 but recommenced their relationship in … 2011.  They married on …2013 and separated on 8 June 2017. 

2. The applicant wife seeks that there be a division of the parties’ property 65 per cent in her favour and 35 to the husband with an equalisation of their superannuation.  The husband by contrast seeks that there be a division of 70 per cent in his favour with 30 per cent to the wife and that there would be an adjustment to the parties’ superannuation by awarding a quarter of his superannuation to the wife.

3. For the reasons that follow, I think that a just and equitable division of the parties’ properties would be represented by a division of the property pool some 60 to 40 per cent in the husband’s favour and an adjustment of some 25 per cent of the husband’s superannuation in favour of the wife.

Agreed or uncontroversial matters

1. Despite the energy with which the case was fought by counsel, most of the relevant facts in this case are not the subject of material disagreement.  The wife was born on …1969 and the husband on …1971.  They commenced their relationship in …1999 and separated in April 2005.  In the meantime their two children [X] (born …2000) and [Y] (born …2003) were born. 

2. Following separation the parties negotiated through solicitors and on 14 August 2007 they entered into a de facto property agreement.  It will be appropriate to return to the terms of that agreement in due course. 

3. The parties remained separated until they recommenced their relationship in November 2011.  As indicated they married on …2013 before final separation in June 2017. 

4. At the commencement of the relationship the husband owned a property in Property A that he had purchased in 1999 for $80,000 with a mortgage in respect to which there is a slight dispute but it was certainly less than $70,000.  The wife owned a property in Property B which was sold soon after cohabitation for $87,500.  The net proceeds were applied to purchase a property at Property C and a further property at Property D and were applied according to the wife on two renovations on the Property A property.

5. The binding financial agreement provided for the sale of the properties at Property D and Property C and the wife has deposed that the Property C property was sold in 2007 and the Property D property was sold pursuant to the de facto property agreement.  It appears that the proceeds of both sales were divided equally.

6. The husband paid the wife $61,500 pursuant to the agreement but whether this was half the value of the Property A property or not is in dispute.

7. In December 2009 the wife had bought a property in Property E for $219,500 with a mortgage of $176,000.

8. It is agreed that the Property A property had a value of $410,000 in November 2011 with a mortgage of some $150,000.

9. The Property E property was sold in November 2013 with net proceeds to the wife of $54,000.  These were, in substance, substantially applied to the purchase of a business which was ultimately sold with a return of only $6,000.

10. It is a common cause that the husband has worked throughout as a tradesman.  He was employed by a business until 2008 and has been self-employed since.  It appears that he does not make contributions to his superannuation as a self-employed person.

11. The wife worked full-time in …industry until the birth of [X] in 2000.  She returned to work part-time in 2005.

12. The husband earns approximately $50,000 per annum according to him, but I shall return to this matter in due course.  The wife has only very limited employment producing an income of $400 a week.  There is a dispute as to how much money the husband pays by way of Child Support.

13. It is clear that there was a separation in November 2016 until January 2017 to which it will be necessary to return.

The evidence before the Court

1. I have read, and carefully so, the parties’ affidavits and have due regard to their materials.  Most of it is paraphrased in the agreed matters above.  It is not necessary to traverse the parties’ affidavit material further as the matters in them which give rise to controversy are more appropriately dealt in the evidence the parties gave before the Court.

The evidence of the Wife

1. What follows is taken from my notes.  Self-evidently it is not a transcript but records aspects of the evidence that struck me as being significant.

2. The wife confirmed that she is employed by Employer in Town A which is a business.  She confirmed that she sought orders in her amended application and adopted her affidavits and Financial Statement as true and correct.

3. Under cross-examination the wife said that the agreement after the first separation had taken two years, and both parties used lawyers.  She conceded that they had sold two properties and divided the proceeds.  The husband retained the Property A property and paid $61,500 to her.  She received about $120,000 all up.  They led separate lives until they reconciled.  She bought the property in Property E and the boys went to school there.  The husband operated his business as a self-employed business.  She made no contributions to the Property A property during separation and the husband made no contributions to her property either.  She had bought Property E in about 2009 and the equity was less than $50,000.  She received $53,000 when the property was sold several years later.  This was roughly what she had put in.  She said she was placed under pressure to sell the Property E property by the husband.  There was no discussion about the business.  She bought it for about $50,000 and worked in it.  The husband worked in the business a couple of times and he was a guarantor for the loan.  She had worked 60/70 hours per week in the business.  The husband was at home most of the time drinking.  She had the business for 18 months but received only $6,000 net after debts were paid.

4. There was a separation for about one month in late 2016.  She took $25,000 from the mortgage but paid more than $17,000 back in.  At separation she took $10,000 to $11,000 out.  There were no payments by her on the mortgage which were all made by the husband.  She said that she was entitled to a share of what the husband had saved since separation.  He pays Child Support but it is not enough.  Food costs over $400 per week.  The eldest son has just turned 18.  The wife conceded the husband had not been behind in Child Support payments for the last 18 months.  He was paying $200 per week when the assessed amount was $139.  The boys do not wish to see him and have not seen him regularly since separation.

5. The wife said she expected the husband to sell the Property A property.  He told the boys he would not sell the house.  He kept coming to the wife’s house drunk which is why the boys do not want to see him.  She is working at Employer but will not continue after this year.  She is not able to continue.  She has not retrained.

6. The wife conceded that she had put $10,000 into her bank account on 12 December 2017 and that this came from the mortgage.  She had paid her solicitors $5,500.  She could not explain a payment of $3,000 for health but she said she might have paid her solicitor.  She says she owes her sister possibly $23,000 and is constantly in debt.

7. In November 2016 she was working at the Employer but cannot do this work anymore.  She tendered as exhibit A1 a report from Dr L of Medical Centre dated 16 October 2018 about her chronic carpal tunnel issue in her right hand.

8. The wife was cross-examined about credit cards and $1,600 spent on a journey to Queensland which, in my view, do not take the matter much further.  She had spent $550 for a bicycle for [Y].

9. It was put to the wife that the Property A property was worth $410,000 with an equity of $260,000 in 2011.  As best I understood it, the wife did not cavil with these figures.

10. The wife noted the husband denied family violence and accepted there was no independent evidence.  She did not propose to call her sons to give evidence.  She did not have doctor’s evidence of assaults and nor any evidence from friends.  It should be noted that the wife’s demeanour and affect under this cross-examination struck me as being brow beaten and beaten down.

11. The wife said the husband did not pay Child Support for six and a half of the seven years they were separated but had no records to support this.  When it was put to her that she had not managed her finances appropriately she said it costs a lot to have two boys.  [X] is now employed and she charges him $50 per week rent and board.  She conceded she had $120,000 in 2007.  She bought her house in 2009.  She had spent $70,000 of the $120,000 on her children but had no evidence to support this.  It was challenging between her work and looking after the boys.  She says it is easier now the older boy is working but she wants spousal maintenance.  The husband was always saying she did not work enough.  She wanted the business and liked the idea of running her own business.

12. In re-examination the wife said she saw doctors about family violence.  The husband’s drinking affected her anxiety.  She had a couple of nervous collapses in late 2016 and early 2017.  [X] is an apprentice who earns $450 per week net.  It is very hard to keep track of funds.

The evidence of the Husband

1. The husband adopted his affidavit and the Financial Statement as true and correct.  It should be noted that in opening counsel had dealt with the alleged $23,000 in the husband’s bank accounts and proffered figures as showing very substantially reduced amounts which were tendered

   
   

   as exhibit R2.

2. Under cross-examination the husband confirmed that he has no relationship with his sons although he would like to.  He spoke to them on their birthdays.  [X] turned 18 on ….  The husband denied seeking to remove the roof of the Property A property.  He stores ladders and copper up there.  He conceded he had been drinking on the occasion he climbed onto the roof.  The neighbour dropped around.  This was in 2017 although he could not say what month.  He had had an argument with the wife before he went onto the roof and she locked him out.  He tried to open the door and thought the neighbour had come around to have

   
   

   a beer.  He did not recall the neighbour being on the roof.  He denied throwing a screwdriver at the wife and said he threw it at the wall.  She was in the shed at the time.  He drinks beer and bourbon in the shed. 

   
   

   He consumes alcohol daily although the amount varies.  It could be four beers and some bourbon.  He started drinking when he was 18.

3. The husband denied shouting at [Y] when he had gone to the wrong address.  He had not sworn at him.  He could have said “It’s not that fucking hard.”  He conceded that he might have been drunk in November 2017 on one occasion.

4. When it was put to him that he had entered the wife’s property post-separation without permission, the husband conceded candidly that he possibly had.  This was after he had taken the Property A property off the market.  He had consented to an Intervention Order without admissions and the children were on the Intervention Order which was brought by the police.  He had not known that the wife took the children to Queensland.  He denied trying to break in by the kitchen window.  He went to her home on a Saturday morning and could not recall why he had gone.  He was possibly wanting to see her or the children.

5. I formed a clear view that it was more probable than otherwise that this lack of recollection was related to excessive alcohol consumption.

6. When it was put to him that he had tried to strangle the wife while they were living together at the Property A property, the husband said he put his hands around her throat.  She had thrown his drinks in the bin.  He denied pushing her into a wall.  The wife was trying to commit suicide and he took her to the beach.  He denied saying he would stick a bullet in her head. 

7. Following separation he reluctantly agreed to put the property on the market.  They were going to try and buy a property with two properties on it and had, indeed, looked at such properties.  He placed the property on the market in springtime.  It could have been September.  The section 32 statement was prepared.  He took the property off the market on the Tuesday before the Melbourne Cup because he felt the wife was lying to him about obtaining finance.  She had told him funds were approved.  He had not signed anything.  She had told him funds were available.  He told the children about taking the property off the market first because she would not talk to him.  The wife had moved to a rental property in Town F and was working at the Employer.  He did not offer her any money.  She took what she needed.  The home at Property A is a three bedroom home and she does not want to live there.  He had no problems with the wife removing monies from the offset account.

8. The husband pays in excess of Child Support as assessed.  He paid $300 the other day.  He does not pay weekly now but did at the start.  It depended on how much cash he had.  Child Support is now assessed at $50 per week.  He said he had paid about $200 a week on average.  It bothers the husband that someone is paying the wife’s rent and he helps if he can.  He was not aware of any carpal tunnel operation.  The wife did have a sore wrist in 2011.

9. The husband was not aware of any professional qualifications on the wife’s part.  He had worked for an employer but started his own business and both looked after the children.  He said he had paid Child Support in 2005 but could not recall how much.  The agreement was entered into in 2007.  He had had the Property A property which was bought just before the relationship commenced.  He paid the mortgage but the wife worked until the children came.  The wife had the Property B property which was sold.  They bought two other properties.  He could not recall the wife doing newspaper advertising.  In 2005 the wife moved out with the children.  The agreement took two years and the split was fifty-fifty.  The agreement was tendered as exhibit R3.

10. Between 2005 and 2011 he paid the mortgage on the Property A property and the value has just gone up.  They got married.  She had a property in Property E.  It was a joint decision to sell Property E.  He did not know if the rent had covered the mortgage.  He had not pressured the wife to sell Property E.  They had probably stayed at Property A because of his work.  He went guarantor for the business. 

11. The husband said he spent about $100 a week on alcohol.

12. He conceded that the wife had transferred $1,000 back to the mortgage on 20 January 2017 and a further $5,000 into account 4241 on 9 February 2017.

13. The husband said that he earns about $50,000 and has one employee.  When asked as to whether he pays tax on that amount, and given a visible hesitation, I informed the witness that he did not have to answer such a question if he felt it might expose him to the risk of some penalty.  He elected not to answer.

14. The husband pays his employee $55 per hour as a casual employee for about 25 hours per week.

15. The husband was cross-examined about his bank account … but it is sufficient to say I accept that the sums thereby disclosed are simply business costs that have accrued from time to time.  The husband said his financial position has become worse in the last few months because work is a little bit slow.  He only has one bill outstanding because people pay him when he does his work.  He has no credit card debt.  He has been to the bank but has not made an application for approved funds to pay out the wife.  He has mooring at Town F but has not inspected it.  His estimated value is for the mooring and the boat.  He does not pay himself superannuation and all his superannuation precedes 2008.  He has conducted maintenance himself on the Property A property.

Brief findings about the credit of the witnesses

1. Both the witnesses impressed me as being generally honest in their evidence.  As I have indicated the wife struck me as being beaten down and somewhat brow beaten in her presentation.  There was a palpable measure of bitterness at the impecunious position in which she finds herself which she clearly attributes directly to the husband. 

2. The husband, once again, struck me as being generally direct enough in his answers, but I strongly suspect that his lack of memory about some of the issues on which he was pressed may relate to long term and significant alcohol use.  I have no doubt that he has underestimated his use of it.  I do not find that he was in any sense lying when he did so.

Final submissions of counsel – counsel for the Husband

1. Counsel noted that the husband’s superannuation totalled $81,475 and he joined a super fund in 1989.  The relationship between the parties encompassed two periods and he did not seek to submit that no weight should be attached to the earlier period.  He submitted that, however, very little weight should be given to the earlier period of the relationship and that the Court should, as it were, concentrate on the second.  The first period was from late 1999 until April 2005 during which the parties contributed jointly to their properties.  The husband had Property A.  The wife’s property was sold, in effect, for two other properties.  Two years of negotiations led to the agreement.  Counsel drew attention to recitals K and L which relevantly provide that the parties intended the agreement to finally settle their property issues and that each should have the opportunity for legal advice before signing.  Counsel noted that by clause 12 the parties were prohibited from making further claims against one another and that each party had by clause 13(c) foregone any claims as to each other’s superannuation.

2. Counsel said there were no valuations in the agreement.  The next six and a half years the parties were separated with no relationship.  When they recommenced in 2011, the wife owned Property E but this was sold two years later with $53,000 net.  He submitted that the husband brought in Property A with $260,000 worth of equity and superannuation also.  The parties made joint contributions until 2017.  There was no coercion on the wife to buy the business and it was submitted that the husband should be believed as to this.  The business was purchased and failed and the monies were removed and replaced during the brief period of separation from 2016 to 2017.

1. Counsel noted there was a dispute as to whether Child Support was paid between 2005 and 2011.  The husband has said he did pay for the first year.  Counsel pointed out that the husband voluntarily pays more than is required by the current assessment.

2. The husband had refused the sale of Property A.  There had been consideration of buying a property on which both could live that the husband ceased the sale because his expectation of seeing his children had not eventuated.

3. Counsel assessed the pool.  It was agreed that the Property A property and the parties’ vehicles should be included and the husband’s boat and mooring at a value of $3,000.

4. Counsel conceded that there had been $23,000 in the husband’s account but this was after separation and the amounts were now reduced to approximately $5,000 and all represented post-separation earnings.  The husband had been in superannuation for 30 years and made contributions for 20 years.  It was submitted that the wife should receive one-quarter.

5. Counsel did not accept that the wife is unable to work.  The wife was not really looking at retraining.  She has a 15 year old living with her.  It was submitted that there should be a five per cent adjustment for future needs.  The wife would receive on the husband’s proposal half of the growth of the assets during the second period of the relationship plus her initial contribution of $50,000 less the $11,000 she had taken from the mortgage account.  It was submitted that some suggestions as to a Kennon argument were not made out.  Counsel pointed out that the husband had been drinking throughout but the parties still reconciled.  There was also an implicit wastage argument but there was no evidence to support this.  The husband’s expenditure of $100 per week on alcohol was not out of the range.  Counsel went through the wife’s Financial Statement and noted that the Child Support of at least $175 per week had not been included.  It was conceded that there was some level of need on the part of the wife.

Submissions of counsel for the Wife

1. Counsel submitted the wife’s evidence was it took two years to negotiate the settlement.  The husband had not provided his bank statements.  He sought to limit his split of superannuation.  Cohabitation started in about …1999 with separation in 2005.  The agreement was signed on 14 August 2007.  Counsel submitted that the terms of the Property Law Act as it then stood only required the Court to take such agreements into account and they were not binding.  The wife had the primary care of the children during separation and said Child Support was paid for the first 12 months and not thereafter.  The husband lived in Property A and the wife bought Property E and the wife spent money on living expenses.  Counsel submitted that it was agreed that the wife buy the business.  There was no evidence of the value of the Property E property in 2011 but it did generate proceeds of $54,000.  Counsel emphasised that the parties married in …2013 and Property E was sold in November 2013 with the business being bought in May 2013.  It was sold in November 2015 with separation in 2017.  The wife moved into a rental property in December 2016 in a brief separation.  Further reference was made to the case of In the Marriage of Kowalski (1993) FLC 92-342. Counsel submitted that the whole of the relationship was relevant. Counsel went so far as to submit that the separation and agreement were irrelevant. It was submitted that the section 75(2) matters were in the affidavits and spousal maintenance was appropriate given the recent surgery on the wife. The Intervention Order was in the wife’s affidavit material as was family violence. Counsel submitted that it has impacted on the wife who had two nervous collapses. The wife submitted that the loan from her sister of over $20,000 should be taken into account and emphasised that she sought 65 per cent of the pool. The Court should include capitalised spousal maintenance and superannuation should be equalised given the length of the relationship.

Findings about the relevantly disputed facts

1. I will, of course, approach the property dispute in the conventional fashion indicated by the High Court in Stanford v Stanford,

   
   

   but, accepting this is a slightly scatter gun approach, I should make it clear I have resolved some of the controversies of the parties.

2. First, while there is a suspicion of a Kennon argument in the wife’s case, I accept that the evidence simply does not go far enough to justify any adjustment.  The husband has undoubtedly been a regular and I suspect a fairly heavy drinker throughout the relationship.  Nonetheless, there

   
   

   is considerable force in the submission of the husband’s counsel that however bad his behaviour was, and it was put as being bad throughout the relationship, the fact is the parties did reconcile and, indeed, even got married.  That puts the criticism to the husband’s conduct into some perspective.

3. I have no doubt that the husband has misconducted himself on occasion and that there has been family violence from time to time within the extended meaning in the Family Law Act 1975 (“the Act”).  While such conduct is always to be roundly condemned, the evidence simply does not go far enough to justify Kennon adjustment.  The wife herself has conceded that there is no independent evidence to sustain her assertions whether through friends, external authorities or medical practitioners.

4. I do not accept the wife’s submission that it follows from Kowalski that in each and every case the entirety of the two periods of the relationship should be taken into consideration and that the period of separation is irrelevant.  Kowalski when read properly, in my view, does not stand for that proposition.  Kowalski was a case in which the matter in issue was whether or not the wife should have an extension of time to bring an application.  The husband had argued that the wife’s claim arose out of a de facto relationship established since 1980 and not out of any marital relationship.  The parties had married and separated in 1974 and the marriage had been dissolved in 1976.  The Full Court held as the head note indicates:

   “Once a marriage has been celebrated between the parties, the entire relationship between them, whether arising out

   
   

   of contributions before, during or after the formal tie of marriage is entered into or dissolved, falls within the ambit of Pt VIII of the Family Law Act.”

5. With respect, so much is plainly correct.  The issue, therefore, was not whether in each and every case the entirety of the relationship was to be examined but rather whether or not the particular objection taken by the husband in that instance should be upheld.

6. While I accept that Kowalski stands for the proposition where parties are married the entire relationship is within the ambit of the Act, it is another thing altogether to say that in each and every case, as the wife does,

   
   

   the entirety of the relationship is to be taken into account and separation ignored.

7. Plainly, the weight to be given to discrete periods of the relationship, and the weight to be accorded to any period of separation, must necessarily at the very least involve the length of the two periods of cohabitation and the length of the separation.  Merely by way of an exaggerated example, there is a radical difference between a relationship where parties cohabit for two periods of 20 years with a gap of one month in-between and

   
   

   a relationship where two parties cohabit for two periods of one month with 20 years in-between.  What weight one would give to the periods of cohabitation necessarily, therefore, will depend upon these sort of circumstances.

8. Finally, with these observations in mind, I think I am now equipped

   
   

   to turn to the standard methodology.

Stanford v Stanford

1. The Court’s first task is to determine the legal and equitable interests

   
   

   of the parties in determining whether a property adjustment is appropriate.  In this instance as in so many the parties have radically readjusted, post separation, the manner in which they dealt with their finances and both of them now seek an adjustment, albeit, in different proportions.  It is plainly just and equitable that there would be an adjustment.

The pool

1. The assets and liabilities of the parties are in my opinion as follows:

   ·Matrimonial home at Property A $680,000,

   ·Wife’s motor vehicle $4,000,

   ·Husband’s motor vehicle $1,400,

   ·Husband’s share in boat and mooring $3,000,

   ·Wife’s part property settlement by way of mortgage withdrawal $11,000,

   ·Mortgage $175,000

Superannuation

·The husband’s superannuation $81,475,

·Wife’s superannuation $1,800 (from most recent Financial Statement).

1. I have not included the husband’s bank accounts as it is plain, in my view, that the sums about which the dispute revolves involve post separation earnings and reflect little more than the ebb and flow of the husband’s business practice.

Contributions

1. I have no doubt whatever that the financial agreement in 2007 represented an equal distribution of the parties then assets.  They divided the proceeds of the two properties that were sold equally and the husband seemed to me to concede that he paid the wife half of the then equity in the Property A property.  Not only was that his answer, but it is consistent with the tenor of the agreement generally and with the wife’s evidence which I accept in this regard.

2. Counsel for the husband conceded that bearing in mind the primary responsibilities for the two children and their then age, an equal division for the parties’ property at that time was properly somewhat light and I accept that this is so.  It is not possible, however, or appropriate to give a retrospective readjustment in percentage terms.  To do so would require a snapshot of the parties’ assets and contributions as at that time based upon what was only a five and a half year relationship in which the major primary asset of the parties was already owned by the husband at the commencement of the relationship.  I note further that the parties were both legally represented and advised.  In the circumstances, it is a matter of bearing in mind that the parties had a fairly short but no doubt equally committed period of cohabitation from 1999 to 2005.

3. Thereafter the parties were wholly separate in their dealings until 2011.  They re-partnered for another five and a half or so years.

4. It is plain that the wife worked until the birth of the first child and worked part-time thereafter and, indeed, worked very long hours as a business proprietor for a period of time.  The fact is that when the relationship started in 1999, she rapidly bought a property which was sold and committed to the parties’ general future.  Likewise, in 2011 she once again owned a property and in due course this was committed to the partner’s general future, if I may use that term.  Counsel for the husband correctly conceded, in my view, that he had to take, as it were, the good and the bad in the outcomes and there was no endeavour to hive this off to the wife alone.

5. I do not think that the husband’s alcohol use amounts to wastage in the circumstances of the case overall.  It seems more probable than otherwise to me that the wife’s dissipation of $70,000 of hard cash between 2007, when she got it, and 2009 when she bought Property E represents a measure of overspending.  However, in saying this it needs to be borne in mind that she did not receive Child Support as I find from a year after the cessation of the relationship.  I note that the husband would, in any event, in my view, have been likely to presuppose that the financial agreement in 2007 extinguished any obligations he might otherwise have had to pay any monies to the wife.  The wife’s evidence about this was given with conviction and I accept it to this extent.  Nonetheless, Child Support would never have amounted to $70,000 over this period of time as it is plain that the wife must have spent perhaps more liberally than was desirable.

6. During the second period of the relationship, if I may so describe it, in my view, both parties did their best.  The husband has worked throughout and as chance had it, he brought into the second tranche of the relationship a substantially increased equity in the property which he had engendered entirely by his own payments between 2005 and 2011.

7. Counsel for the husband has, to an extent, urged an arithmetical approach to the questions of contributions and distribution in this case.  In my view, to do this is to ignore the overarching reality of the total circumstances that the relationship involved.  Between 2011 and 2017 the wife was seeing these children into and largely through adolescence as the primary home carer and credit must be given for this in a fashion that is not merely tokenistic.

8. Taking all these matters into consideration, I would assess the contribution of the husband as 70 per cent and that of the wife as 30 per cent.  It should be noted that while the wife’s endeavours with the business were ultimately unsuccessful they represented the dissipation of a significant capital asset towards the benefit of the parties generally.   This needs to be given appropriate consideration.

Future needs

1. The wife is plainly going to have difficulties in obtaining future employment.  She is correct to say as she does in affidavit material that the industry in which she previously worked has changed through computerisation and the like and she would need to retrain.  Furthermore, her carpal tunnel syndrome, which at the very least is not yet fully resolved, looms as a likely difficulty to further employment opportunities.  She will have the full-time care of the second child for around another three years, and however much it may be a matter of maternally felt obligations, she will continue to assist both her children for some time.  The children, of course, spend no time with their father.  Nonetheless, the father pays more than he is required to by way of Child Support and this is greatly to his credit.

2. One area I should deal with is the husband’s likely extent of earnings.  As I pointed out during the occurrence of the hearing, if I were to accept the husband’s earnings as asserted by him, he pays his part-time employee more for 25 hours a week than he says he earns himself. 

   
   

   He refused to answer a question as to whether he takes tax out of his earnings.  I have no hesitation in finding in these circumstances that the husband’s earning capacity is greater than $50,000 a year although

   
   

   I am not a position to say how much greater.  This is plainly a relevant consideration.

3. Doing the best one can in what are necessarily areas of imprecision,

   
   

   I make an adjustment of 10 percent in the wife's favour in this regard.

Conclusion

1. This case, in my view, turns on its facts.  It does not turn on a generalised question of established case law.  The parties had two relationships of about five and a half years each, separated by a period of some six and

   
   

   a half years.  They both did their best throughout.  The primary asset now available has plainly always belonged to the husband who has equally clearly always made the payments on it.  An outcome that gives him 60 per cent of the pool is, in my view, just and equitable.

2. On the question of superannuation with which I have not thus far dealt, I accept that the husband’s superannuation was all accrued in the periods from 1989 to 2008.  Of that period the wife was only on the scene for some five and a half years.  There should be an adjustment to reflect her contribution to the marriage during that time.  I will make a splitting order that provides an additional 25 per cent of the husband’s superannuation to her.

3. Nothing was put, so far as I recall, as to whether the husband would seek to pay out the wife.  I will request the parties to produce agreed Minutes of Orders, and will re-list the matter in the event of disagreement.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 18 January 2019