Bruil & Bruil

Case [2023] FedCFamC1F 316

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Bruil & Bruil [2023] FedCFamC1F 316

File number: MLC 7506 of 2019
Judgment of: CARTER J
Date of judgment: 28 April 2023
Catchwords: FAMILY LAW – PROPERTY – protracted proceedings – allegations of family violence – where the wife asserted her contributions were arduous – where the wife asserted there had been non-disclosure – where the wife asserted there had been wastage – whether it is just and equitable for any orders to be made – orders made
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 75, 79, 81, 90E, 90XT, 102NA, 102NB

Cases cited:

Aleksovski v Aleksovski (1996) FLC 92-705

Bevan v Bevan (2013) 279 FLR 1

Cerini & Cerini [1998] FamCA 143

Chorn & Hopkins (2004) FLC 93-204

Dickons v Dickons (2012) 50 Fam LR 244

Jabour & Jabour (2019) 59 Fam LR 475

Keating & Keating (2019) 59 Fam LR 158

Kennon & Kennon (1997) FLC 92-757

Mallet v Mallet (1984) 156 CLR 605

Omancini & Omancini (2005) FLC 93-218

Stanford v Stanford (2012) 247 CLR 108

Stein and Stein (1986) FLC 91-779

Weir & Weir (1993) FLC 92-338

Division: Division 1 First Instance
Number of paragraphs: 298
Date of hearing: 16–18 January 2023
14–15 February 2023 
Place: Melbourne
Counsel for the Applicant: Nicola Bowen
Solicitor for the Applicant: Clancy & Triado Family Lawyers
Counsel for the Respondent: Litigant in person

ORDERS

MLC 7506 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR BRUIL

Applicant
AND:

MS BRUIL

Respondent

order made by:

CARTER J

DATE OF ORDER:

28 APRIL 2023

THE COURT ORDERS THAT:

Election

1.On or before 26 May 2023 the Wife elect in writing either:

(a)to pay the Husband in accordance with Order 2 herein; or

(b)for the property at B Street, Suburb C (“the former matrimonial home”) to be sold.

Payment to the Husband

2.In the event the Wife elects to pay the Husband, then on or before 27 June 2023 (“the due date”) the Wife shall pay the Husband the amount of $1,758,731 (“the payment”) being the amount to affect the division of the pool 55% to the Wife and 45% to the Husband, together with the payment from the Wife’s entitlement to the Husband the further sum of $11,140.38 (“for costs and the Wife’s share of professional fees”) comprising:

(a)the costs order made on 2 July 2021;

(b)reimbursement of one half of the valuations of Ms E and the costs of her giving evidence less the amount already paid by the Wife; and

(c)reimbursement of half of the costs of the updated property valuations.

Sale of former matrimonial home

3.In the event:

(a)the Wife elects for the house to be sold, or fails to make an election in accordance with Order 1 the former matrimonial home be forthwith placed on the market for sale; or

(b)the Wife fails to make the whole of the payment by the due date then the former matrimonial home…

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Details
AGLC
Bruil & Bruil [2023] FedCFamC1F 316
Case
[2023] FedCFamC1F 316
Decision Date

CaseChat Overview and Summary

The case of Bruil & Bruil involved a dispute between the parties regarding the division of their assets following their separation. The husband and wife were married in 1991 and separated in 2014, with the husband vacating the matrimonial home in August 2019. The wife remained in the home, which was valued at $3,000,000 and was registered in her sole name. The husband was self-employed as the director of a building services company, which was valued at $118,000. The wife worked casually at a company and had primary care responsibilities for the parties' two adult children. The wife opposed the husband's orders, asserting that there should be no adjustment to the parties' current entitlements to the asset pool. The court was required to determine the appropriate division of the asset pool between the parties.

The court found that the husband was a more credible witness than the wife, and accepted his evidence over hers where there were conflicts. The court found that the husband had been frustrated by the wife's attitude and the court processes, but had remained measured and provided straightforward answers. The court found the wife's evidence to be rambling, confusing and inconsistent, and found her to be an unimpressive witness. The court found that the wife had not provided a precise outline of the orders she sought, and had instead focused on historical grievances unrelated to the division of the asset pool.

The court determined that the appropriate division of the asset pool was a 50/50 split between the parties, with the wife retaining the matrimonial home and the husband retaining his business. The court found that the wife's assertions of coercive control, violence and abuse by the husband were not substantiated, and that the wife's contributions to the relationship had not been made more arduous by the husband's actions. The court found that the wife had not provided evidence of her physical health issues impacting her ability to work, and that her income had fluctuated due to her own choices to reduce her hours of work. The court found that the wife had not been unable to obtain full-time work, and had not provided evidence of her job applications or the organisations she had applied to.

The court ordered that the asset pool be divided equally between the parties, with the wife retaining the matrimonial home and the husband retaining his business. The court noted that the wife's assertions of coercive control, violence and abuse by the husband were not substantiated, and that the wife's contributions to the relationship had not been made more arduous by the husband's actions. The court found that the wife had not provided evidence of her physical health issues impacting her ability to work, and that her income had fluctuated due to her own choices to reduce her hours of work. The court found that the wife had not been unable to obtain full-time work, and had not provided evidence of her job applications or the organisations she had applied to. The court's decision was based on the evidence presented and the relevant considerations under Section 75(2) of the Act.

Orders

Orders of the court

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Background

Background to the litigation

The factual background of this matter is not complicated. It is regrettable that the parties were themselves unable to reach an agreement as to an appropriate division of the asset pool, and that it has taken so long for the matter to be finally determined. BACKGROUND AND PROCEDURAL HISTORY For the reasons I set out later in this judgment, unless otherwise specified, I prefer the evidence of the Husband to that given by the Wife. Accordingly, the history that I now recount includes my relevant findings of fact where the evidence is divergent. The parties commenced cohabitation in 1990 and were married in Australia in 1991. There is some dispute as to the date of separation. The Wife’s affidavit filed 30 March 2020 pinpoints 12 August 2019 being the date of separation – being the date the Husband physically vacated the former matrimonial home, and began the process of the parties becoming financially separated. In the Husband’s trial affidavit filed 13 July 2022, he contended that the parties separated in June 2014. The parties continued to share a bedroom until 2017 and remained living together under the one roof until August 2019. The parties also remained financially intertwined throughout those years. The Husband also acknowledged that whilst in his mind the parties separated in 2014, the Wife “may see matters differently”. He conceded that there was not one particular discussion evidencing the irretrievable breakdown of the marriage, “but rather multiple discussions over a number of years”. Little turns on whether the parties separated in August 2019 or earlier. I accept that from 2014 the Husband regarded the marriage as over. I further accept that from that time the parties began to lead increasingly separate social, physical and emotional lives. The Wife continues to reside at the former matrimonial home, purchased by the parties in about 1997. It is registered in the Wife’s sole name, and is unencumbered (although it is security for the line of credit associated with the husband’s business. The home has been valued at $3,000,000. The Husband is self-employed as the company director of his own business, F Pty Ltd (“F Company”). That business was commenced in 2008. The business provides services to the building industry. A significant part of the business is retrofitting existing buildings. A valuation of the business was undertaken by Ms E (“Ms E”) on 2 November 2021, pursuant to orders made by a Registrar on 2 July 2021. She valued the business at $118,000. The Wife is employed at K Company in Suburb L, Victoria on a casual basis. The parties have two adult children: Mr M who was born in 1995; and Ms N who was born in 1997. They are aged 27 and 26 years old respectively. Mr M lives independently. He works full time with the Husband at F Company as an employee. The Husband said he hopes that at some time in the future, Mr M will take over F Company. Ms N is studying overseas. The Wife provided primary care for the parties’ children when they were younger before returning to part time work. The Husband was engaged in paid employment throughout the relationship.

Evidence

Evidence Before The Court

The Wife opposed the orders sought by the Husband. Despite being ordered more than once to set out with precision the orders she sought, the Wife failed to do so. At trial the Wife asserted that there should be no adjustment to the parties’ current entitlements to the asset pool. She said accordingly she should retain the unencumbered former matrimonial home, her interest in H Town and her superannuation entitlements; and the Husband should retain the business and his superannuation entitlements. If I accept the Husband’s formulation of the asset pool, that would leave with Wife with in excess of 90% of the pool.THE EVIDENCE It has not been possible to include every aspect of each of the parties’ evidence. However, I have taken all the evidence into account. Just because I have not mentioned something in these reasons does not mean that I have not considered it. Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities. The Husband The Husband relied on:(a)his trial affidavit filed on 13 July 2022;(b)his affidavit in reply filed on 8 August 2022; and(c)his financial statement filed 13 July 2022. The Husband was an impressive witness. At times he was frustrated by the Wife’s attitude, and the Court processes. However, he remained considered and measured, and provided straightforward answers, in a genuine and open manner. I accept his evidence including where that conflicts with the evidence given by the Wife. The Wife The Wife was not satisfied that the trial affidavit filed on 9 September 2022 contained all the evidence upon which she wanted to rely. The Wife also sought to rely on additional affidavits filed by her on 2 September 2022 and on another affidavit also filed by her on 9 September 2022. I granted her leave to do so. Accordingly, the Wife relied on:(a)her trial affidavit filed on 9 September 2022 at 4.32 pm;(b)her affidavit filed on 9 September 2022 at 4.30 pm;(c)her affidavit filed on 2 September 2022; and(d)her financial statement filed on 25 November 2019. As I have now had the opportunity to carefully read the Wife’s material it is apparent that the affidavits filed on 9 September and 2 September 2022 are in precisely the same terms save that the earlier filed affidavit contains multiple exhibits. The exhibits are not properly identified. The Wife’s trial affidavit was substantially similar to the trial affidavit prepared on 3 August 2022. The exhibits were not identified or numbered and did not all appear in order. I advised the Wife at the outset of the process that would be undertaken during the trial. She was able to conduct the trial in a reasonable manner, although at times she did become distressed, and at other times infuriated. The Wife was not an impressive witness. She frequently gave rambling and confusing answers. There were significant discrepancies between her affidavit evidence, her oral evidence and documentary evidence. She took many opportunities to belittle, berate and denigrate the Husband, and complain about the legal system. She provided implausible explanations at times, and at other times became quite uncontained. She presented as angry and aggrieved by the end of the relationship. She remains highly upset at the Husband’s failure, as she perceives it, to prioritise her and his relationship with her, preferring instead to holiday with others, or spend time with friends and not with her. When cross examining the Husband the Wife referred to very historical events in which she saw herself as having been wronged by the Husband in this respect. For instance she asked him about who he spent New Year’s Eve with in 1994. She also questioned him about events at a work conference he attended in 2002, from which she felt excluded. She also referred to the Husband not being in attendance at events such as the children’s 21st birthday parties. The Wife regarded these matters as being pertinent to the issues that I must decide, despite being re-directed by the Court on a number of occasions.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

For these reasons I am not satisfied the Husband subjected the Wife to coercive control or violence or abuse. Accordingly, the Wife’s assertions regarding her contributions being made more arduous must fail. RELEVANT CONSIDERATIONS PURSUANT TO SECTION 75(2) OF THE ACT The Husband is 59 years old. The Wife is 56. The Wife deposed to having a number of issues with her physical health, although she did not have any of her treating practitioners on affidavit. Nor did she depose to her health impacting her ability to work. According to the Wife’s Financial Statement filed 25 November 2019, she was earning $42,172 per annum, made up from income paid by P Organisation. It does not appear to include her casual work at K Company. In her affidavit filed 9 September 2022 the Wife said she was on a leave of absence from her role at P Organisation. She said her two days of work per week at P Organisation then generated an income of approximately $27,000 per annum. According to her pay slip tendered, had she been working full time her salary would be $72,524. However, the Wife said she was not offered a full time position there. The Wife deposed that her casual employment at K Company, of about 17 hours per week, generated a further $476 per week income. That amounts to another $22,000 per annum if she were to work those hours for 48 weeks of the year. The Wife deposed she was able to work additional hours to increase her income. At trial, however, the Wife said she was no longer employed by P Organisation. She said she stopped working for them in October 2022 when her contract ended. The Wife said she was told by a colleague at P Organisation that she had to take time off, and that she suffered from stress and trauma. Whilst the Wife said she has ceased work at P Organisation, she did not produce a letter from her employer confirming her termination or the reasons for it. She produced a pay slip showing nil payment to her for the period 15 to 28 October 2022. The Wife also said the workplace, and her rate of pay were abusive. She said she is currently in a dispute with P Organisation as she says she is still owed about $1,300. The Wife said her income with K Company fluctuated and had diminished. In her oral evidence she said that she had been working around 19 hours each week, but now worked around 12 hours per week and earned around $420 per week from K Company. She said in February 2023 K Company advised her that they would not make her “an offer of casual conversion…due to Your [sic] hours of work significantly reducing within the next 12 months”. It is unclear why her hours of work were reducing – and whether that was the Wife’s election to reduce her hours, or that was a reduction imposed by K Company. The Wife asserted at trial she had been unable to obtain full time work. She said she had been looking for work, and had applied for many jobs. However, she was not able to advise when she had made applications, for what positions, or with what organisations save that she applied for an administration role in June 2022. She said she has “a black mark against my name”.