Bretherton & Seymour
[2022] FedCFamC1F 711
Federal Circuit and Family Court of Australia
(DIVISION 1)
Bretherton & Seymour [2022] FedCFamC1F 711
File number(s): NCC 4168 of 2020 Judgment of: SMITH J Date of judgment: 16 September 2022 Catchwords: FAMILY LAW – PROPERTY – De Facto relationship of 24 years – Two adult children – Application for adjustment of interests in matrimonial property – Where the wife was the main financial, parental and homemaking contributor –Where there were contributions made by the husband’s parents – Where the husband abused alcohol – Where the Court finds the nature and circumstances of family violence by the husband made the wife’s contributions significantly more onerous – Where the husband failed to disclose his financial position – Where the wife is afforded the opportunity to keep the former matrimonial home – Where it is just and equitable to make an adjustment to reflect an overall division in favour of the wife of 65/35 Legislation: Evidence Act1995 (Cth)
Family Law Act 1975 (Cth)
Cases cited: Kennon v Kennon (1997) 22 Fam LR 1
Jabour & Jabour (2019) 59 Fam LR 475
Stanford & Stanford (2012) 247 CLR 108
Division: Division 1 First Instance Number of paragraphs: 123 Date of hearing: 15 September 2022 Place: Newcastle Counsel for the Applicant Mr Kelly Solicitor for the Applicant Paddingtons Lawyers and Attorneys Counsel for the Respondent Not applicable Solicitor for the Respondent Litigant in Person ORDERS
NCC 4168 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BRETHERTON
Applicant
AND: MR SEYMOUR
Respondent
order made by:
SMITH J
DATE OF ORDER:
16 SEPTEMER 2022
THE COURT ORDERS ON A FINAL BASIS THAT:
Adjustment of property interests
1.That within 90 days of the date of these Orders the Applicant may pay to the Respondent the sum of $229,353 as directed by him or to his Commonwealth Bank Account identified in the proceedings, and shall do all such acts and things and sign all such documents as are necessary to discharge, or to refinance in her sole name, the mortgage secured over the property known and situate at B Street, Suburb C and more particularly described in the Certificate of Title Folio Identified ... ("the Suburb C property"), and the Applicant is indemnify and keep indemnified the Respondent from any liability for the mortgage over the Suburb C property.
2.Simultaneously with, and conditional on the Applicant’s compliance with, Order 1 the Respondent shall do all such things and sign all such documents as may be necessary to transfer to the Applicant all of his right, title and interest in the Suburb C property.
3.Pending compliance with Order 1, or the sale of the Suburb C property if sold pursuant to the orders below, the Applicant shall meet the costs of the mortgage, municipal council rates and charges, water rates and charges, insurance premiums and utilities, or other charges as and when they fall due and payable, and shall indemnify the Respondent in relation to the same.
Sale of Suburb C property and adjustment of property interests in alternative
4.If the Applicant does not comply with Order 1 within the stated time, or if the Applicant advises the Respondent in writing that she does not intend to comply with Order within the stated time, then parties shall instead sell the Suburb C property and adjust their property interests pursuant to the orders below.
5.Upon order 4 taking effect the Applicant is appointed sole Trustee for the sale of the Suburb C property (“Trustee”).
6.As Trustee the Applicant is to put the Suburb C property on the open market through a licenced Real Estate agent (“Agent”) within 30 days of becoming Trustee. The Trustee is to select the Agent.
7.The Trustee is to market the Suburb C property by auction, and,
(a)the auction is to take place within no more than 180 days from these orders, and,
(b)the Trustee is not notify the Respondent within 48 hours of the date being set, and,
(c)the Trustee may set the reserve price, with the reserve price to be no higher than a price recommended in writing by the Agent, and at a price that is not less than $600,000,
(d)each party may bid at any auction,
(e)if the reserve price is not reached then the Trustee may negotiate with a third party for sale at a lower price on the advice on the agent .
8.If the Suburb C property is passed in at auction, it shall be re-offered for auction every 4 weeks thereafter at a reserve price 5 per cent lower than the previous reserve price until sold.
9.The Applicant may expend a reasonable sum on marketing the property as advised in writing by the Agent, so long as it shall not exceed $10,000, which sum may be paid or recovered from the sale proceeds.
10.The Trustee is to appoint a solicitor or conveyancer to manage the conveyance of the Suburb C property, who the Trustee is to select and who may be the Applicant’s solicitors in these proceedings.
11.When the Suburb C property is sold, the proceeds of sale of the Property shall be distributed in the following manner and priority:
(f)Payment to discharge the mortgage;
(g)Payment of any charges running with the land for utilities;
(h)Payment or recovery of Agent's commission, auctioneers fees and marketing expenses payable on the sale;
(i)Payment of the legal costs and fees relating to the sale;
(j)Remainder to be deposited in a controlled monies or trust account of the solicitor conveying the property (“net sale proceeds”).
12.After the sale of the Suburb C property, the property of the parties shall be adjusted in accordance with these Orders on a “rise and fall” basis to account for the actual net sale price of the Suburb C property.
13.The net sale proceeds from the sale of the Suburb C property (“S”) shall be divided as follows:
(a)On the assumption that the Applicant’s net assets are $187,465 (“A”), and,
(b)On the assumption that the Respondent’s net assets are $27,679 (“R”), and,
(c)S + R + A = the total net assets of the parties (“T”), then,
(d)A + (percentage of S to Applicant) = 65%T and
(e)R + (percentage of S to Respondent) = 35%T
Other property retained
14.Unless otherwise specified in these Orders, and except for the purpose of enforcing the obligations of either of the parties pursuant to these Orders:
(a)Each party be solely entitled to the exclusion of the other party to all property held in the name of, or in the possession of, that party as at the date of these Orders; and,
(b)Any money standing to the credit of the parties in a bank account is to be retained by the party in whose name the account appears; and,
(c)Each party shall be solely entitled to any superannuation in their name, and loses any claim they may have to any superannuation benefit that belonging to or is owned by or held in the name of the other party; and,
(d)All insurance policies are to become the sole property of the owner named on such policy: and,
Each party is solely liable for any liability held in their sole name as at the date of these Orders, and/or encumbering any item of property to which the party is entitled pursuant to these Orders.
Registrar to give effect to orders
15.In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to the orders above, the Registrar of the Court be appointed pursuant to s.106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
Costs
16.If a party seeks an order for costs they are to file and serve an Application in a Proceeding and supporting affidavit in accordance with the Federal Circuit & Family Court of Australia (Family Law) Rules 2021 (Cth).
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 the pseudonym Bretherton & Seymour has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Smith J
These are oral reasons for decision in a de facto property settlement proceeding.
The trial was heard before me yesterday and, in the circumstances of the case, I consider it more appropriate to give oral reasons shortly today than to wait for the period of time that would be necessary if I were to provide written reasons.
The proceedings were brought by the applicant de facto wife Ms Bretherton. For simplicity I shall call her the wife. She was born in 1973 and is now 49. She brings the proceedings against the respondent de facto husband Mr Seymour, for simplicity, the husband. He was born in 1971 and is now aged 51.
In summary, the parties met in about 1995, and commenced cohabitation soon thereafter. They did not marry. They purchased the former matrimonial home at B Street, Suburb C in about 1997 or 1998. I note that there was some difference of view about the purchase date, and no documents were tendered to establish the issue. Ultimately, nothing turns on that. I will refer to this as the former matrimonial home.
The parties had two children, Ms D who was born in 2000 and is now 22, and Mr E who was born in 2003 and is now 19.
The parties separated on a final basis on or about 7 May 2019 after an incident primarily involving the husband and Ms D, which I will refer to later.
It was a de facto relationship of approximately 24 years. It is clearly a long relationship by any standard. There was no issue raised as to the existence or breakdown of the de facto relationship, nor as to any jurisdictional question.
The wife commenced these property settlement proceedings on 12 November 2020. For reasons that I will come to in due course, the net assets of the parties including superannuation are $734,378, as submitted by the wife.
The wife seeks in her amended initiating application filed on 23 June 2022, that she have the opportunity to keep the former matrimonial home, which is in effect the only substantial asset apart from superannuation, on the basis that she pays the husband $150,000. It was sought to be paid as $100,000 cash and $50,000 by way of super-splitting, noting that she has most of the superannuation.
That would result in effectively an 80/20 split in her favour. In her written submissions, as discussed with counsel for the wife, she submitted that would be a 75/25 spit, and there appears to have been a mathematical error.
In closing, counsel for the wife submitted quite sensibly, and in my view consistently with his duty to the court as counsel appearing against a litigant in person, that the most the wife could realistically seek, assuming she wins every point and as he said, with a good wind at her back, is a split of 70 per cent in her favour and 30 per cent to the husband.
I note that she seeks the super-splitting order in the husband’s favour, where she has most of the superannuation, to assist her to retain the former matrimonial home. I will address this later, but that is problematic given his age and lack of other resources.
The husband was self-represented. By his response filed on 24 February 2021, when he was represented, he effectively sought a 50/50 split. That remained his position at trial. He says that taking into account the entire net asset pool, including superannuation, each party at the end of a long de facto relationship should, as would often be the case, receive half of the net assets.
For reasons I will come to I accept and find that the net matrimonial pool is $734,378. Given that the husband agrees the wife should have 50 per cent or $367,189 of that sum, and that she says she should have at most $514,064, the real sum in dispute is $146,875.
This is a reasonably straightforward matter. The matter was in Division 2 of the Court. When it became apparent that the Division 2 Judge who was to hear the matter would be unable to reach the matter and that I had become available, the matter was transferred to Division 1 and allocated to my docket to avoid the parties being not reached and having to come back again in six months. These facts, together with the Trial concluding in a day, make this an appropriate matter for oral reasons.
Each party seeks final orders altering the interests of the parties to the de facto relationship with respect to their property, pursuant to section 90SM of the Family Law Act, taking into account as I am required to of course, the section 90SF factors. And they both also seek to determine and end the financial relationship between them, pursuant to section 90ST.
There was no jurisdictional issue I could see. For reasons set out below, and noting each party seeks orders, I am satisfied that it is both appropriate and in all the circumstances just and equitable to make orders, and for the reasons I will give to make the orders that I will make.
Since this is a stressful process and the parties have been waiting a long time, whilst I will continue to give my reasons, I think since what they really want to know is what the final result is. Therefore, it is appropriate in an oral decision to indicate that I largely accept the wife’s case and I think that her contributions, also taking into account a ‘Kennon’ (Kennon v Kennon (1997) 22 Fam LR 1) claim, to 65 per cent and the husband’s to 35 per cent of the contributions and that there should then be no adjustment made, and particularly no adjustment made in the husband’s favour.
I will now go through the reasons why I have come to that conclusion. The wife, as I said, commenced these proceedings on 12 November 2020. The husband filed a response on 24 February 2021. At the time, he was legally represented. The husband remained legally represented until a notice of ceasing to act was filed on 2 December 2021.
After that time, as indicated by various orders of the court during the management of the proceedings, while the husband continued to engage intermittently with the proceedings he did not comply with many of the procedural orders of the court.
On 5 July 2022, in the absence of the husband who had not appeared, the matter was listed for final hearing for two days on 15 September 2022, and a timetable for the filing of affidavits and other matters was set. Notations were made that if the husband did not comply or appear, an undefended hearing would occur.
The husband did file affidavits within time, and although he did not file an amended response or comply with orders as to the provision of other matters, he did substantially comply with the timetable and the Trial was conducted as a defended hearing.
The matter proceeded to final hearing yesterday before me. The wife was represented by solicitors and counsel. The husband was self-represented. In those circumstances he was provided with some assistance from the court consistent with my obligations to ensure a fair playing field.
The wife filed a court book as ordered of 588 pages which is MFI 1. She read her affidavit filed on 11 August 2022, and her financial statement filed on the same day. She also read the affidavit of the parties’ daughter Ms D, filed on 12 September 2022, and I note that Ms D gives evidence as to family violence by the husband and as to her view that he contributed little or nothing to parenting or homemaking. The wife also relied on her case outline (MFI 2) and tendered various documents from the court book which I will refer to as I consider necessary.
The wife and Ms D were required for cross-examination. As there were allegations of family violence made by Ms D, and in particular as there is an outstanding AVO application by Ms D against the husband, her evidence was given by video from a separate court. The process that was followed was that the husband told me what he wanted to ask, without Ms D hearing, I then asked those questions of Ms D in a context where she could not see the husband but could see and hear me.
The husband read his affidavit filed on 11 August 2022, and his financial statement filed on 22 February 2021. I note that his affidavit was only two pages long, consistent with him being self-represented, but he did generally address the most relevant contributions factors. He also filed and read affidavits of his mother, Ms F, who I will call “Ms F” to avoid confusion with surnames, filed on 11 August 2022 and one page long. He also filed an affidavit of his father, Mr G, who I will call “Mr G” for the same reason, filed on 11 August 2022 and also one page long. Their affidavits were very similar and I say that without any criticism of them, since they were not assisted by a lawyer and were going to similar things. The husband also relied upon his case outline which was reasonably short, but set out his case and that was MFI 3. The husband provided financial disclosure a mere eight the day before the trial. I will refer to the material from that as relevant.
The husband and Ms F were required for cross-examination and were cross-examined. The husband said, and Ms F gave evidence, that Mr G was very sick and Mr G’s affidavit was read on the basis that he was unavailable within the meaning of the Evidence Act and that his affidavit would go to weight. I note that Mr G’s evidence was consistent with Ms F’s and she was cross-examined on the relevant issues. I do not need to refer to Mr G’s affidavit any further.
The wife’s case, in short, is that the husband is an alcoholic. She says he also has substance abuse issues around marijuana. She says that arising from his alcoholism he did not work very often because he was mainly drinking. She says he committed significant acts of family violence throughout the relationship against her and against the children, particularly when drunk.
On the other hand the wife says that she worked throughout the relationship and consistently contributed financially, except for limited periods after childbirth. They were about four months after Ms D’s birth and up to 14 months after Mr E’s, because Mr E had issues that required major surgery. Otherwise, she says, she worked.
The husband on the other hand, she said, worked sporadically until 2012 and not thereafter.
The husband in reply says that they both drank, and used marijuana, and that it was not just him. He denies the alleged family violence. The husband disputed the wife’s case that he only worked sporadically and did not work after 2012. Interestingly however, in his affidavit he only sets out employment until 2012.
In the husband’s oral evidence, although he said in cross-examination that he definitely worked after 2012, he could not identify the name of a single employer that he worked for in the seven years from 2012 until 2019. The husband could only identify employers post-separation, when he commenced working in a service industry. He also has no financial documents or other evidence to support his allegations that he worked for those seven years for employers whose names he says he could not remember.
It was agreed that the husband’s parents gave him the small deposit for the house and that is a contribution in his interest. They also gave the funds for a new roof of $14,000, and some funds for a bathroom, which may have been $8000. It appears that Ms F and Mr G also gave the husband $150 per week from virtually the time of purchase of the former matrimonial home until the end of the relationship. They said, and Ms F confirmed in cross-examination, that she thought it was being paid to the mortgage account otherwise she would not have continued paying it. The documents show, however, it was not going to the mortgage account. It appears it was going to the husband’s personal account. He says he used it for the family; the wife disputes that. She says he was not working but he was drinking and smoking and that would be where the $150 went to.
The wife’s case in short therefore is that her financial contributions were substantially greater than the husband’s. He denies this and says that they were broadly equal. The wife also says that arising from the same factual basis of alcohol abuse, which she says impaired his ability to obtain and retain and his motivation for work, she said she did basically all of the parenting and home-making, despite also being the primary, and for the large part of the relationship, sole breadwinner. The husband denies this and said that he was heavily involved in homemaking, particularly at times he was not working.
The wife concedes that for 10 months in particular when Mr E was in the hospital, the husband cared for Ms D, but otherwise says that she was the primary carer and points to the fact that by 2012, when she said the husband completely stopped working, the children were at school and less was required.
She also says when they were not at school his parents were caring for them. It does appear that in the mornings the children spent time with Ms F and Mr G before school. He conceded that this would count as the husband’s contribution to parenting, but otherwise she says the children were in vacation care or cared for by her. So again, her case is that her parenting and homemaking contributions were significantly greater than the husband’s. He denies this and says they were equal. As I have said, I note that Mr G and Ms F clearly helped out with the children in the mornings before primary school and this would count as the husband’s contribution.
The wife’s case is that her contributions were also made significantly more onerous because of the family violence and the wife relies upon a Kennon claim as it is commonly called, and the cases that follow. The husband denies the factual basis of the claim. The wife gave evidence and she also called the parties’ now adult daughter Ms D, who gave evidence of significant family violence by the husband against the wife which also, she said, when they approached puberty, then became violence against her and Mr E. Again, the husband denies all of this.
The wife’s case is that there has been no disclosure. The husband says he has made disclosure and his former solicitors gave it to the wife’s former solicitors, but he has no ability to prove that. Counsel for the wife conceded, noting the wife’s case, that the husband is an alcoholic who does not work, that this is not one of those cases where there may well be millions of dollars hidden in offshore accounts
However, she submitted that the non-disclosure was still relevant to the consideration of whether there should be any adjustment in the husband’s favour pursuant to 90ST. That issue arises as, on the wife’s case he is an alcoholic who has trouble working so that his needs may be greater than hers.
The last issue was that the husband left the former matrimonial home post-separation in May of 2019. The wife has now largely also left it. She co-habits with her new partner of about two years in H Region where she works. They live in his house and he has an income.
The parties’ children and Ms D’s boyfriend live in the former matrimonial home and only pay rent of about $200 per week, which appears to be less than the current market value, even knowing the issues with the property which led to its valuation, which I will come to. And it appears the wife is letting them live there at a reduced rate. So the wife is paying the ongoing mortgage but that mortgage is based on the $80,000 loan and is not significant.
Post-separation contributions, for reasons I will come to, I find are both nil.
I will just come to credibility quickly. I did not find the husband to be a credible witness. He gave sworn oral evidence that he worked from 2012 to 2019 for various employers. However, when questioned he said he could not recall the name of even a single employer he worked for during a period of seven years, in the context where he says he was working full time for most of that seven years. His evidence was not credible.
The husband also gave evidence that he was not living with his parents for much of the time post-separation, contrary to the wife’s case, and he gave a compelling story about his homelessness and its impact on him. He spoke about the hardship of being required to live in his motor vehicle. He explained the great difficulties he had seeking accommodation as a homeless man with a dog, and about the lack of access to services because of his desire to keep a dog for companionship.
The difficulty with that compelling story was that it was entirely contradicted by his mother Ms F, who he called as a witness. Ms F and Mr G have a large family home. When asked whether he had in fact lived with them post separation she said that he had, until the last few weeks pre Trial. She said he had a room in their house. She said that sometimes he would go off in his vehicle. She did not know where he went. She said he could continue to live there, although suggested she would prefer if he was able to get his own accommodation.
Those are two significant examples of the husband’s failure to give credible evidence. However, the husband’s evidence generally contained inconsistencies and changed across the day. He is an articulate man who ducked and weaved throughout changing his evidence as he went.
Even taking into account the disadvantage the husband was under in representing himself, I have very grave doubts about his candour and reliability, and I place little weight upon the evidence he gave.
I note that I generally considered his mother Ms F a credible and straightforward witness. She was in the difficult position of a mother who has come along to support her son, and yet give honest evidence. In giving evidence about the husband’s alcohol consumption she clearly had concerns, but could only say that he is not drinking it in front of her or Mr G.
I also note the wife was a candid witness. She admitted that she had purchased an ice pipe and smoked ice with the husband, for which she was given a section 128 certificate. The husband said he was bit surprised at some of the concessions the wife made. However, it seemed to me that she was being honest. There were no major inconsistencies in her evidence.
The one issue where I have some concern with the wife’s evidence is that she said that she did not know about the $150 a week until late in the relationship. I have no problems accepting that. However, she also said that she told Ms F to stop paying it to the husband as it was going on alcohol and drugs. Ms F’s evidence was that there was no such conversation and she said, very persuasively, that if she had been told the $150 a week she was paying for 20 years was not going to the mortgage account to support the family but was in fact going to the husband for his personal use, and if she had thought it might have been going on alcohol, she would have stopped paying it. I prefer Ms F’s evidence to the wife’s on that discrete issue.
The other issue is that the wife may have, perhaps unconsciously, minimised some of the husband’s parenting contributions in the early years due to her experience of family violence, although Ms D gave evidence substantially supporting the wife’s evidence about family violence and about the husband’s lack of involvement in parenting and homemaking.
The husband’s attack on Ms D’s credibility was that Ms D lives in the former matrimonial home with her boyfriend at a cheap rent, and on that basis he submitted she might be willing to lie on oath and fabricate a history of serious and substantial ongoing family violence in order to keep her cheap rent. Ms D rejected that.
There is a 2015 interim AVO which set out certain facts concerning the husband’s violence involving the wife and Ms D and Mr E. The wife says there was no criminal proceedings because she did not want to involve the children in having to give evidence. The husband says there was no criminal proceedings because it did not happen. That contemporaneous report tells against recent concoction by Ms D for financial gain.
There are still extant AVO proceedings between Ms D and the husband. The relationship broke down around an alleged assault on Ms D in 2019, which I will come to. I thought Ms D was basically an honest witness. As with the wife, I think in retrospect, because of the overshadowing effect of her feelings about the husband due to her experience of family violence and living with an alcoholic father, she perhaps understated his role in parenting where she said he did absolutely nothing when even the wife said he did something. But generally, I accept Ms D’s evidence.
I come now to the process of analysis which I am required to undertake in that context.
The court is required to identify the parties’ existing legal and equitable property interests whenever acquired pursuant to the ordinary principles of common law and equity.
The husband did not engage with the process of preparing a joint balance sheet and did not provide his own full balance sheet. He provided a very brief outline in his case outline.
The wife provided a proposed balance sheet dated 15 September 2022, which is part of MFI 1 at page 3, which I treat as being read onto the record:
ASSETS Ownership Description Wife’s estimated value Husband’s estimated value 1 J B Street , Suburb C $600,000 2 J J Bank (Account No. …85) $52 3 W J Bank (Account No. …28) $662 4 W Commonwealth Bank of Australia
(Account No. …45)$1,173 5 H Motor Vehicle 1 $NK 6 H Motor Vehicle 2 $NK 7 H Motor Vehicle 3 (Not registered) $NK 8 H Motor Vehicle 4 (Not registered) $NK 9 H K Credit Union (Account No. …20)(…) $1,395 10 H K Credit Union (Account No. Unknown) $NK 11 H L Building Society (Account No. …05) $0 12 H Commonwealth Bank of Australia
(Account No. …22)$671 13 H Commonwealth Bank of Australia
(Account No. …49)$Nil 14 H Commonwealth Bank of Australia
(Account No. …06)$Nil 15 H Tools, Whipper Snipper & Mower $NK 16 W Furniture & Whitegoods $Nominal 17 H Furniture & Whitegoods $Nominal Total $603,953 ADDBACKS 18 H Tax Invoice from M Consultants for property valuation of B Street , Suburb C (Husband’s equal half share) $550 19 H Tax Invoice from N Company for technical report of B Street, Suburb C (Husband’s equal Half Share) $1,936 20 H Tax Invoice from Z Company (Husband’s equal half share) $497 21 H Motor Vehicle 5(Registration No. Unknown) $NK Total $2,983 LIABILITIES Ownership Description Wife’s estimated value Husband’s estimated value 22 J Commonwealth Bank of Australia
(Account No. …09)$80,766 23 W Commonwealth Bank of Australia
(Account No. ….81)$3,119 24 H Commonwealth Bank of Australia
(Account No. Ending …22)$8,267 Total $92,152 SUPERANNUATION Member Name of Fund Type of Interest Wife’s estimated value Husband’s estimated value 25 W Superannuation Fund 1 Accumulative $190,584 26 H Superannuation Fund 2 Accumulative $11,458 27 H Superannuation Fund 3 Accumulative $16,068 28 H Superannuation Fund 4 Accumulative $NK 29 H Superannuation Fund 5 Accumulative $8,420 Total $226,532 NET TOTAL ASSETS (including Superannuation) $738,333
As can be seen, the parties own the former matrimonial home and that, together with the parties’ superannuation and in particular the wife’s superannuation which is most of the superannuation, make up the great majority of the net assets.
The only substantial dispute was as to the value of the former matrimonial home. In his case outline, the husband submitted that the former matrimonial home is worth $800,000 to $900,000. During the course of proceedings, orders were made for the appointment of a single expert to value the former matrimonial home. The husband failed to participate in that process. The wife was therefore entitled to, and did, proceed to obtain those valuations. As there were apparent defects prior to the preparation of the valuation report, single expert reports were obtained by the wife from O Consultants, dated 13 July 2021, and from N Company, dated 26 November 2021. Those reports identify significant defects. The wife then retained an independent expert, Mr P of M Consultants to undertake the valuation which was provided in early 2022.
I note that these three reports were between them admitted as exhibits A and B with two of them being part of exhibit A. I have reviewed these reports which are contained in MFI 1. There is no doubt that the people who prepared the report all have specialised knowledge based on their training, study and experience which qualifies them to give opinions as to matters they have given opinions on in accordance with section 79 of the Evidence Act1995 (Cth). The valuation, which takes into account the defects identified in the engineering reports, give a market valuation of the former matrimonial home at $600,000. That is set out at page 18 of 52 of the report and on page 92 of MFI 1.
In his evidence and submissions, the husband said he disputed that the defects were as significant as asserted. He is not an engineer and I can give no weight to that evidence. His evidence was also that he made some phone calls to real estate agents and others, and that the house is worth $800,000 to $900,000. Again, I do not know who he spoke to. He is not a real estate valuer. No weight can be given to that hearsay or lay opinion evidence. Interestingly, in his own sworn evidence in his financial statement in 2021, he valued the former matrimonial home at $600,000.
In any event, I rely upon the fact that where a single expert or single experts properly appointed pursuant to orders of the court have come to a valuation which takes into account the relevant information, where they were not required for cross-examination, and where the only opposing evidence is from a party with no qualifications that they do not accept the report, then I am satisfied that it is appropriate to accept the single expert valuation, and I find that the former matrimonial home should be included in the balance sheet at $600,000.
The mortgage figure was agreed to be as per the wife’s balance sheet at $80,766 which will be included. The wife’s superannuation figure was agreed as per the wife’s balance sheet and is $190,584 and should be included. The husband’s superannuation included in the wife’s balance sheet was as per the documents he provided the day before trial from the ATO and that should be included.
Those are the major assets and liabilities including superannuation. There are a whole lot of other small sums and unknown sums included in the wife’s balance sheet. Through her counsel in her outline, she provided what was referred to as a simplified balance sheet which includes superannuation, the former matrimonial home and the mortgage. She also included the two credit card debts of $3,119 for the wife and $8,267 for the husband which are very close to the evidence in the credit card statements and I think they should be allowed.
I do think it is appropriate not to deal with the many and various other small matters which add very little, if anything, to the case. I will therefore, for the purpose of this judgment, adopt the balance sheet as set out in the wife’s case outline which was very helpful to me, and find that the total net position, including superannuation, is $734,378 and I will treat that as being read onto the record.
Assets Ownership Value B Street J $600,00 Husband's Motor Vehicle 2 H $NK Total $600,00 Liabilities Mortgage to CBA …09 J $80,766 Wife CBA Credit Card …81 W $3,119 Husband CBA Credit Card …22 H $8,267 Total $92,152 Superannuation Wife Superannuation Fund 1 W $190,584 Husband Superannuation Fund 2 H $11,458 Husband Superannuation Fund 3 H $16,068 Husband Superannuation Fund 5 H $8,420 Husband Superannuation Fund 4 H $NK Total $226,530 Total Equity (including Super) $734,378
I also note there was a reference to add-backs but they were not included in the balance sheet. There is a small sum of add-backs. I have taken them into account in coming to the figure that I have come to as a percentage. They are a couple of thousand dollars. Basically, when one looks at the position of the parties, if one excludes the house and mortgage, the wife has $190,548 superannuation minus $3,119 in liabilities, which is $187,465, and the husband has $35,946 in superannuation, minus $8,267 in liabilities, equals $27,679 net.
So excluding the house, she has 87 per cent and he has 12-13 per cent of the assets. If you assume that each party is entitled, prima facie, as joint owners to half the house and half of the mortgage, then the wife has $447,082 and the husband $287,269, which gives her just on 61 per cent and him 39 per cent. That difference largely comes down to the wife having $155,000 more in superannuation than the husband. As the wife will keep all of her superannuation that then affects the allocation of the net value of the former matrimonial home when one comes to do the adjustment.
I come now to contributions. As I have indicated, I largely accept the wife as a witness of truth and do not accept the husband as a witness of truth. I also accepted Ms F and Ms D as witnesses of truth.
At cohabitation, each party agreed that they have personal effects and no significant assets.
Dealing first with financial contributions. They commenced living together when the wife moved into the husband’s parents’ house, and I note that Ms F and Mr G’s contributions stand as the husband’s contributions and affect my assessment of his contribution.
The parties agree they purchased the former matrimonial home for $85,000 somewhere between 1997 and 1998. They did that using $5,000 from the husband’s parents. That is his contribution. I note that some weight should be given to this as it allowed the parties to accrue equity over time rather than renting, noting Pierce & Pierce (1998) 24 Fam LR 377, but also that this was 24 years ago and only one of the myriad of contributions to be assessed within the holistic assessment required, see Jabour & Jabour (2019) 59 Fam LR 475 esp at [55].
In relation to other financial contributions during the marriage, the wife’s deposed, at paragraphs 22 to 29 of her Affidavit, to each parties’ work history. Her evidence is as follows:
22. I maintained full-time employment throughout our relationship, except for approximately a four (4) month period following the birth of our first child. [Ms D], in 2000.
23. Following the birth of [Mr E] in 2003, I ceased employment for a period of fourteen (14) months as [Mr E] was born with a birth defect […], which required him to undergo a number of surgeries, which saw him remain in the Newborn Intensive Care Unit for a period of ten (10) months as he required [major surgery].
24. [Mr Seymour] primarily cared for [Ms D] during this time as he was unemployed.
My Employment
25. Other than approximately a two (2) month period in or around 2007, I maintained full-time and was the primary income earner during our relationship.
[Mr Seymour's] Employment
26. To the best of my recollection, [Mr Seymour's] employment was inconsistent as he started to have a problem with excessive alcohol consumption and illicit substances and would regularly lose his employment following arguing with management or his employer.
27. For the purpose of clarity, [Mr Seymour] was unemployed for the following periods:
(a) Between 2000 to 2005;
(b) Between 2009 to 2011; and
(c) Between 2012 to 2019.
28. [Mr Seymour] maintained that he elected not to work 'as someone needed to care for the kids', despite them attending school, after school care and vacation school care.
Financial Contributions
29. It was agreed between [Mr Seymour] and I that he would maintain the mortgage repayments on the former matrimonial property and insurances. I was to be responsible for the groceries, electricity, rates, water rates, telephone expenses, the educational, after school care and extra-curricular activities for the children, and all other outgoings for the family right down to our drivers licence renewals, boat, forklift and crane licences and our entertainment expenses etc.
(As per the original)
There was no dispute the wife worked throughout the relationship. The wife’s Notices of Assessment were produced only for later years. Her earnings during the early periods are unknown, but in 2017 she earned $54,000.69 before tax and in the 2019 financial year, which was almost completed before separation, she earned $70,777 before tax.
The husband’s evidence of his earnings was set out at paragraph 16 to 23 of his affidavit. As that is all of his evidence on his financial contributions:
16. I have worked in a variety of roles during the course of our relationship. The income from my jobs was applied to the relationship. I have set out my history below.
17. Worked as a [transport worker] for [Q Company]
18. From 2006 to 2011 I worked as a [transport worker] for [R Company] earning approximately $28,000 per annum.
19. From 1996 to 1997 I worked as a [transport worker] for [S Company] on a full-time basis earning approximately $30,000
20. From 1995 – 1996 I worked casually for [T Company] earning approximately $22,00 per annum.
21. From 1998 – 1999 I worked for [U Company] earning approximately $25,00 per annum
22. From about 2005 until 2009 I worked as a Supervisor for [V Company] on a full – time basis earning approximately $50,000 per year
23. For about 8 months 2010 I worked for [W Company] on a full-time basis earning approximately $30,000 per annum
(As per the original)
The husband does not cite any employment after 2012. The husband provided no documents to support his receipt of an income prior to separation, or indeed at any stage. Significantly, while in oral evidence he maintained that he had worked from 2012 to 2019, in cross-examination he was unable to give the name of a single alleged employer between 2012 until post-separation. I considered his oral evidence that he had worked between 2012 and separation, which position he maintained in his oral submissions, unsatisfactory.
Giving my findings elsewhere that the husband is an alcoholic who engaged in family violence, and my grave concerns as to his credit, on the balance I find it is likely that the husband worked sporadically from cohabitation until 2012 as the wife says and did not work thereafter until separation.
As it seems likely that the husband did not work during that period, the question arises of why he didn’t work from 2012. He provides no explanation. The wife says it is because he was drinking so much he could not maintain employment. Ms D’s evidence supports that conclusion. Taking into account all of the evidence, including that which I will come to later from the wife and Ms D, that seems to me to be likely and to fit the entire picture.
The parties agree that the husband’s parents gave them a gift, the husband says for his birthday, of $14,000 for a new roof. The wife agreed with that. She said it was some time ago. Again, this counts as the husband’s contribution. The husband’s parents also contributed on the same basis towards the cost for a new bathroom. The husband said it was $8,000. The wife did not know the sum. $8,000 is certainly possible. They are not cheap, bathrooms. These are also the husband’s contributions.
There was some suggestion in the husband’s evidence that these were loans, but neither Ms F nor Mr G said they were loans, and the standard of proof that would be required to establish they were loans has not been met.
The husband’s mother Ms F who, as I have said, seemed to me to be an honest witness, dealing with the difficult circumstances of having to give honest evidence which she understood may be unfavourable to her son, said that she paid $150 a week to a bank account which she understood to be the husband’s mortgage account. She confirmed that in the witness box. The husband’s case was that this was a significant long term financial contribution to the mortgage.
There was no challenge to Ms F that the $150, on average, per week payments were being made and I do not doubt that Ms F and Mr G believed they were paying money to the mortgage account. However, the documents from the mortgage account show that Ms F was not making the $150 weekly payments to the mortgage account. It seems likely they were being made to the husband’s personal account.
The husband submitted in closing that he accepted the wife was paying the mortgage, but he said he contributed his money to household expenses, including the $150 per week from Ms F and Mr G, and it was his contribution in the usual way. He said he paid for meals out and other matters from that money. He submitted that the question of which account the mortgage payments came out of did not matter. I accept that if one party pays the mortgage and other party is putting their money towards household expenses it is all household money, and the particular accounts used do not matter.
However, the wife said he spent the money, which she said she was not aware he was receiving for most of the relationship, on alcohol and drugs and that this was the source of his income for those things, given he was not working for much of the relationship. Her evidence and case is that the money was never contributed to the household.
The issue then is whether this sum, which Ms F estimates and I accept is roughly $154,000 over the entire period, was a contribution by the husband to the household finances of monies given by his parents.
I find that the husband has not established, as he bears the onus of doing, that the $150 per week which Ms F and Mr G were giving to him was in fact used for the benefit of the family, given his sporadic income until 2012 and lack of income after. It seems more likely to me that, as the wife says, whilst he may have occasionally bought a meal out for the family, he was using most those funds when not working, to support his alcohol, cigarette and marijuana purchases. No credit is given for these $150 per week payments as contributions.
The wife raises waste on the same topic. To the extent necessary to address this I am satisfied that it is not appropriate or necessary in assessing contributions to take into account the $150 being given to the husband by his parents when, even though they thought it was going to the mortgage, it is likely it was instead being used for excessive alcohol and marijuana use.
On this basis and taking into account the assistance of the husband’s parents for the initial deposit, the new roof and the bathroom, I think it is clear and I find that the wife was the major financial contributor prior to separation.
Coming now to the question of family violence, the fact that I find the husband probably did not work from 2012 to 2019 and was not honest about it is a fact relevant to the assessment of the issue of alcohol and substance abuse and family violence, where the wife says that the husband’s alcoholism was the reason he did not work and was, as is so often the case, substantially intertwined with his perpetrating of acts of family violence. My finding that he was not honest about his work impacts on my findings on this issue and vice versa.
The wife set out under the heading “alcohol and drug abuse and domestic violence” from paragraph 82 to 110 of her affidavit her evidence on these issues:
Alcohol and Drug Abuse
82. I verily believe [Mr Seymour] is an alcoholic. I say this because every time [Mr Seymour] consumed alcohol he would do so until he fell down, passed out and was unable to get up or maintain his bodily functions.
83. I depose that [Mr Seymour] on average would consume in the vicinity of between ten (10) to a carton of beer an evening, some five (5) nights a week.
Domestic Violence
84. The police attended our house on at least five (5) occasions over the course of our relationship following our neighbours making a complaint for my safety. On each occasion [Mr Seymour] was heavily intoxicated.
85. When [Mr Seymour] was excessively intoxicated or drank spirits, he would became physically violent and abusive towards me.
86. If [Mr Seymour] drank only beer, he would become verbally abusive and/or aggressive towards me however, he was not ordinarily violent.
87. Throughout our relationship, there were periods where [Mr Seymour] would consume vodka and/or vodka and beer and would become physically violent towards me.
88. I vividly recall in or about 2013, [Mr Seymour] grabbed me by my leg and hair and threw me out of bed.
89. I became so frightened of [Mr Seymour] that for a period of weeks throughout our relationship, I slept with a kitchen knife under my pillow.
90. Between 2009 to 2013, the children ordinarily stayed with my Mother at her residence in [Suburb X] approximately every second weekend. On these weekends, [Mr Seymour] would drink to an excess and hold me down on our bed screaming in my face. I vividly recall kicking and fighting him off me. [Mr Seymour] would yell at me accusing me of sleeping with other men at work if I accepted an additional shift to meet our financial commitments and accuse me of sleeping with the neighbours, which I deny having ever being unfaithful to [Mr Seymour] during our relationship.
91. On approximately three (3) separate occasions, I recall sleeping in my car as I was fearful of [Mr Seymour]”
92. Over the years as a result of [Mr Seymour's] excessive alcohol consumption, he would become so intoxicated that he would get to the point of such inebriation that if I needed to, most times I could push him away from me.
93. [Mr Seymour] would drink to such excess that the following morning he would have no recollection of his behaviour.
94. I recall in or around [early] 2019 [Mr Seymour], while intoxicated, cut his foot on a broken beer bottle and his foot was bleeding excessively. [Ms D] assisted me to clean the blood from the floor as [Mr Seymour] continued to walk around the house as if nothing had happened and refused to seek medical intervention.
Domestic Violence directed towards the children
Abuse towards [Mr E]
95. The reason for me ending our relationship on a final basis was because in the last six (6) to twelve (12) months prior to our final separation, [Mr Seymour] began to direct his abuse towards the children.
96. I vividly recall [Mr Seymour] saying words to the effect to [Mr E] 'How about we go outside to sort this out' if [Mr E] were to say something that [Mr Seymour] did not approve of.
97. On a number of occasions, [Mr E] would respond with words to the effect 'For God's sake wake up to yourself. You are an adult, and I am a child. You are drunk and I am not' and even offer to go to counselling with [Mr Seymour].
Abuse towards [Ms D]
98. If [Ms D] got between [Mr Seymour] and I when he was initiating an argument, [Mr Seymour] would push her out of the way or lock her out of the house as a form of punishment. Either [Mr E] or I would then need to sneak her back into the house.
99. In 2015 [Mr Seymour] was watching the motor car racing on television and as I was not wanting the children or I to be home while he drank all day, we went out.
100. When the children and I returned [Mr Seymour] screamed abuse at me essentially saying that I had ‘ruined’ his day for various reasons. [Ms D] was outside playing with [Mr E] and the other children in the street and came inside as she could hear [Mr Seymour] yelling at me and said words to the effect 'Stop yelling at Mum, everyone can hear you outside', [Mr Seymour] raised his right hand, being his dominant hand and slapped her across the face with the back of his hand knocking the glasses off her face and onto the floor.
101. This incident was reported to police however, as I did not want [Ms D] to be involved in a criminal Court proceeding, we did not attend the hearing and the charges were dismissed.
102. [Mr Seymour] did not sleep in the former matrimonial home, but rather chose to sleep in the garage following this incident.
103. In or about [mid-2019], [Mr Seymour] physically assaulted [Ms D] by grabbing her from behind in an inappropriate manner and knocking her to the ground. At the time I was in Sydney for work and will never forget answering [Ms D's] call and trying to understand her through her crying telling me that she had barricaded herself in her room ad was unsure if [Mr Seymour] was still inside the former matrimonial property.
104. Following the police attending the former matrimonial property an Apprehended Violence Order ('AVO') was granted by the Court.
105. Annexed hereto and marked ('MB-2’) is a true copy of the AVO made [mid-2019].
Damage to Personal Property
106. At the time of our separation in 2019, there was only one (1) door in the former matrimonial property as [Mr Seymour] had kicked and/or punched holes on them all while heavily intoxicated.
107. Between 2000 to 2020, we had not a single internal door in our home as [Mr Seymour] had damaged them. [Ms D's] bedroom door was installed in or around 2015 and was the only room with a door.
108. In or about 2015, following [Mr Seymour] slapping [Ms D] he installed a door [Ms D's] bedroom.
109. At the time of separation in 2019, [Ms D's] bedroom door handle had fallen off and there were more dents and minor holes in the door as a result of [Mr Seymour’s] aggressive outbursts when he was intoxicated, for example, throwing personal property at the door or kicking and/or punching it.
110. To the best of my recollection, [Mr Seymour] has damaged the following property:
(a)Shattered the glass window panel on the front door from slamming it too hard,
(b)Threw an object through [Mr E's] bedroom window from outside, smashing it
(c) Punched and broke [Mr E's] window with his hand;
(d) Flipped the washing machine over on its side;
(As per the original)
Her evidence is that the husband was a falling-down drunk alcoholic who would consume between 10 to a carton of beers five nights a week and would also drink spirits. She said the police attended on at least five occasions, on each of which the husband was intoxicated. She basically tied the family violence to his intoxication. She said that when intoxicated he would become physically violent and abusive and she recounts various events, such as for example in 2013, when she says he grabbed her by the leg and hair and threw her out of a bed and various other assaults.
She also gave evidence of abuse directed to the children, including an event in 2015, and I note the interim AVO at MFI 1, pg 238, which sets out very concerning allegations of where the husband, being intoxicated, was abusive and violent to not only the wife but to Ms D. The husband was taken to this. He denies those alleged facts. The wife, as I said, says that she did not want Ms D in a criminal court case, which is why there is no charge. The husband says there was no charge because it did not happen.
Ms D gave evidence as an adult child. That is a difficult situation. She also said that the husband was a violent alcoholic. In her affidavit she says:
22. I recall the time when my father was so grossly intoxicated that he sliced the bottom of his foot on a broken beer bottle and he refused to allow my Mother to take him to the hospital or to treat his wound and I had to help my Mother clean up the blood after him as when my Mother asked him to sit down, he verbally abused her.
(As per the original)
She also gave evidence that the husband physically assaulted her in mid-2019 while the wife was working in Sydney, and the final AVO on that matter made in mid-2019 is at MFI1, page 60. As I have said, Ms D says she is still seeking an AVO against the husband. Having assessed her as best I can and taking into account my other findings about the husband’s credibility, and the pre-separation contemporaneous complaints, I prefer Ms D’s evidence. I am satisfied that she did not come and perjure herself for the purpose of getting slightly cheaper rent than she might get in the open market. The husband admitted to drinking alcohol and using marijuana but said these were moderate and purchased for joint consumption. Taking into account in particular Ms D’s independent evidence, independent of the proceedings, I consider Ms D to be a more credible witness than the husband and her support for the wife bolsters my conviction the wife was more reliable than the husband.
Considering the totality of the evidence, I prefer the accounts of the wife and Ms D over the husband and find that the husband had been, during the course of cohabitation, a person with significant alcohol use issues and who when drunk committed serious acts of family violence against the wife and against the children, which impacted her as she sought to defend and protect them.
During the course of the evidence, the husband asked the wife if she had used ice. She said yes, in respect of which a section 128 Certificate is granted. She said it was for a short period with the husband early in the relationship and did not continue for either of them. A section 128 Certificate similarly was given to the husband. The husband said she was effectively the same as him when it came to substance and alcohol abuse. I do not accept that. The wife has a history of consistent work inconsistent with substance abuse at the husband’s level, and Ms D also rejected that proposition.
In terms of contributions to family welfare, homemaking and parenting, the wife conceded the primary care by the husband for Ms D during the 10 month period when Mr E was in the hospital. Otherwise, she said his contributions were relatively nominal. The husband said he made a substantial contribution. Ms D supported the wife on this issue, and indeed went further than the wife.
Consistent with the finding that the husband was an alcoholic and that from 2012 he could not hold down a job, I prefer the wife’s evidence. I find that the husband was not working from at least 2012. The reason for that, I find, is the only one that was offered, which is that he was an alcoholic. I also accept that when he was drunk, which was a lot of the time, he was violent. In those circumstances, what both the wife and Ms D say, that he sat around drinking and did not contribute, makes sense and forms part of the whole picture, and a picture that one would not find surprising when dealing with an alcoholic in that kind of household.
In those circumstances, I accept the wife was the primary homemaker and parent in addition to being the major provider of financial support.
It does appear that although the husband was not able to or would not help, Mr G and Ms F did, for example, have the children to their place, after being dropped off by the wife in the mornings, to make sure they got to school and provided homemaking assistance. Again, I take that into account as the husband’s contribution. I note that there, considering all of the evidence, he probably did make some contributions, particularly in the earlier years, that may have been minimised.
The wife was the major financial provider and the major provider of homemaking and parenting.
However, before I assess the relative contributions, I need to consider the Kennon question. Where there is family violence, and that family violence makes the circumstances and the nature of the contributions more onerous, then in weighing those contributions it is the additional difficulty that is to be factored in. I find that there was family violence that the wife was subjected to as she says. I note there has been some discussion in authorities in recent years about whether there is specific evidence required to show a causal link which would establish as a matter of fact that the family violence made the homemaking and other contributions more onerous. I note also recent authorities in the Full Court which suggest and state that evidence of the family violence is itself sufficient to provide a factual basis on which to find that the making of the contributions was likely more onerous.
I am satisfied that it is open to me to infer and find, and I do infer and find, that the nature and circumstances of the family violence described by the wife and by Ms D made the circumstances in which the contributions made by the wife across the course of cohabitation more onerous and that this is a matter which should be taken into account in assessing relative contributions.
As I have said, the findings regarding family violence, pursuant to the principles articulated in Kennon and cases that follow, are a factor to weigh in assessing the contributions. Taking into account all of these matters and applying a holistic approach, I am satisfied that across the period of cohabitation, the wife made the greater contributions, both financially and to home-making and parenting. I am also satisfied that her contributions were made significantly more onerous by the circumstances of the family violence inflicted on her by the husband, and which she had to experience also as family violence when directed against the children. I am further of the view that this family violence is a matter which should be fully recognised in assessment of the parties’ respective contributions. I have also, as I have said repeatedly, had in mind the fact that the contributions of the husband’s parents do make up a portion of his contributions.
Making the necessary jump to the allocation of a figure, overall I am satisfied that the wife’s contributions represent 65 per cent to the husband’s 35 per cent. There is no relevant post separation contribution for consideration.
The section 90SF factors are required to be considered as adjusting factors. There is no relevant effect of any proposed order upon the earning capacity of either of the parties. There is no relevant effect of any other order. There is no child requiring support or other person whom there is a duty to maintain and support. There is no issue not already identified elsewhere concerning eligibility for relevant pension allowance or benefit under a superannuation scheme or fund, or as to each party maintaining a reasonable standard of living, nor as to maintenance, earning capacity or the effect on creditors, nor as to the extent to which each party has contributed to income earning capacity, property and financial resources of the other party, the need to protect the continuation of parenting roles, or the terms of any order proposed regarding a binding financial agreement.
The parties’ property and financial resources are dealt with elsewhere, except as I will now deal with them. The wife is 49. She says she is in reasonable health. In about 2020 she was diagnosed with a chronic medical condition. She is in remission. If she relapses, she may need to have therapy or surgery. That may impact on an incapacity at some future stage. It is to be weighed as a possibility. She earns a good living, as indicated, in the range now of $80,000 a year. She has a new partner and relationship she hopes will continue. These things can never be certain. She is able to live with him. He has an income. She spends about 10 out of 30 days a month in City Y seeing the children and also her own mother who is now aging. There do not appear to be any factors personal to her future needs as per this section to favour adjustment in her favour.
In terms of the husband, I raised with counsel for the wife the fact that a large part of the case is that he is an alcoholic with a poor work history. And on one view, that might point to an adjustment in his favour. In reply, the wife pointed to the fact that once the husband left the matrimonial home he found and commenced work as a courier. He was able to do that, in part, because his parents Mr G and Ms F, yet again, came to his assistance and bought Motor Vehicle 2 for him. Nevertheless, he has been able to work. He said he had a job until a few weeks ago. He says they asked him to leave because he was too stressed, but it has nothing, he says, to do with being an alcoholic. He said he could return to the job he has just left when he wants to and perhaps when the stress of litigation is over. Nevertheless, he has been working. His recent earnings are not disclosed or known.
While there is no suggestion he has hoarded cash elsewhere, his poor disclosure would, I accept as submitted for the wife, require the court to be careful about making findings as to his actual current earnings which might result in any adjustment in his favour. There is no evidence of physical ill health or of mental ill health other than substance abuse. The wife also raises, on a policy ground, the fact that he should not be rewarded or, perhaps better put, that the wife’s position should not be diminished, by his decision to live an alcoholic and drug-using lifestyle with limited work rather than addressing those issues. That is a complicated question. I do not know this is the case to try and deal with that policy issue.
I find that were the husband has demonstrated he can work when he wants to. He has not disclosed his income. He has access to accommodation with his parents who are a financial resource. They are good parents for whom I feel some sympathy. As his mother said, they would at some stage like to not be supporting him. However, I am also satisfied that they will continue to do so, as they have to date, as required. I also note they have a large and apparently valuable house and there may be an inheritance someday.
Taking all of this into account, and in particular the non-disclosure of his current earnings of financial position, the husband has not persuaded me that the 90SF factors would justify an adjustment in his favour. In those circumstances, I am satisfied that it is not appropriate to make any further adjustment.
The judgment therefore proceeds on the basis that the wife’s significantly greater contributions of 65 per cent to 35 per cent which are to be reflected in the adjustment of properties between the parties.
The wife seeks to keep the former matrimonial home. I note that at market rent, she may be able to keep the former matrimonial home with a further mortgage. If she can arrange to do that within 90 days, she should be allowed the opportunity to do so. But if she cannot, the house will need to be sold.
She seeks a $50,000 super splitting order in her husband’s favour to help her to do that. That is because her substantial superannuation means that she is going to have to pay him a substantial sum to keep the house. However, given the husband’s age and financial circumstances to the extent know, I do not think it is appropriate or fair.
Based on the balance sheet as I find it, the wife’s net position excluding the former matrimonial home is, as I have said, $187,465. That is in effect superannuation minus credit card debt.
The husband on the same basis has a net position of superannuation minus credit card debt of $27,679.
The former matrimonial home is worth $519,234 net.
For the husband to receive 35 per cent of the net pool, with the wife retaining the house and mortgage, he needs to receive or have a net position of $247,032.30, less the superannuation and credit card debt. That means that he needs to receive $229,353 from the wife.
If she is able to take on the existing mortgage and take on additional mortgage to that sum, which I do not know if she can but she may be able to, because she is on a good wage, particularly if she rents the house on the open market, then she should have the chance to keep the house, and that would leave her with $477,345.70, which is 65 per cent.
If she cannot keep the former matrimonial home, it will need to be sold, and in those circumstances, there would need to be a rise and fall clause to allow the percentage to be maintained.
For the reasons I have given I am satisfied that it is appropriate and just and equitable that an order be made adjusting the parties’ property interests pursuant to the Act. I note the principles in Stanford & Stanford (2012) 247 CLR 108. I note that these orders are intended to determine and end the financial relationship between the parties. The orders I propose to make are similar to those proposed by the wife. I am going to allow 90 days to the wife because it might take her a little while to see what the position is with regard to additional finance.
Given the husband’s failure to participate and the delays caused to date, to avoid any further delays or requirements for Court intervention, if the former matrimonial home is to be sold the wife will be appointed sole trustee.
Those are my reasons. I make orders in accordance with them.
I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 20 October 2022
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