BUCKLEY & BUCKLEY

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUCKLEY & BUCKLEY

[2015] FCCA 1594

Catchwords:
FAMILY LAW – Division of property – husband accepted wife’s role as parent and homemaker made more arduous by husband’s violence during the relationship and post separation.

Legislation:
Family Law Act 1975, ss.75(2), 79

Ferrero & Ferrero (1993) FLC 92-335
Hickey v Hickey; AG for Commonwealth (Intervenor) (2003) 30 Fam LR 355 specify
Stanford & Stanford [2012] HCA 52

Applicant:

MS BUCKLEY

Respondent:

MR BUCKLEY

File Number:

SYC 2076 of 2013

Judgment of:

Judge Henderson

Hearing dates:

20, 21 and 22 May 2015

Date of Last Submission:

22 May 2015

Delivered at:

Sydney

Delivered on:

12 June 2015

REPRESENTATION

Counsel for the Applicant:

Mr Gittoes-Caesar

Solicitors for the Applicant:

Coleman & Greig Lawyers

Counsel for the Respondent:

Respondent in person

ORDERS

That the husband be paid forthwith the sum of $18,000 from the monies held in the parties joint names with Watts McCray solicitors
The balance of the monies to be paid to the wife or as she may direct with the wife to forthwith repay her current Centrelink debt to nil.
The wife to forthwith transfer all her right title and interest in the Holden (omitted) motor vehicle currently in the husband’s possession to him and is to sign all documents necessary to bring into effect such order. All costs associated with the transfer to be borne by the husband.
Thereafter the parties be entitled to all assets in their name including superannuation to the exclusion of the other.
Thereafter the parties be responsible for and indemnify each other in respect of all debts standing in their name as at the date of these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYC 2076 of 2013

MS BUCKLEY

Applicant

And

MR BUCKLEY

Respondent

REASONS FOR JUDGMENT

The matter of Buckley concerned both parenting and property orders. The final hearing commenced on 20 May 2015.
The parties, to their credit, resolved parenting issues on the first day of the trial and I made final orders in relation to the care of the parties’ child, X, born (omitted) 2010. Those orders provide for the child to live with the mother, the mother to have sole parental responsibility but to advise the father of long-term decisions she has made, and for the father to move from current supervised time to unsupervised time of daytime only and in 2018 for the parties to negotiate and mediate for further time including overnight time for the father and child.
The orders for time are limited because the father conceded at the commencement of the property hearing and the hearing generally that he had behaved in a violent, overbearing, coercive and controlling manner during the relationship and that his behaviour was unacceptable. The father not only showed remorse for his behaviour but accepted his responsibility and has undertaken various courses being parenting after separation at Relationships Australia and in particular, a course run by Anglicare concerning anger management, parenting and relationships, which the father said was absolutely wonderful.
The father knows he has a way to go to establish trust in him with the mother due to his poor behaviour in the past and is content that time with his son moves slowly so that the mother can see, over time, that he is a very different person to the person she first met in 1997 and married in 2008 and separated from in 2012.
The husband was the respondent and was unrepresented. The wife was represented by Mr Gittoes-Caesar, solicitor. The husband being unrepresented, was at a disadvantage but his disadvantage was compounded by the fact that he struggles to read and write English. Having said that, he presented his case well and made appropriate concessions.
The evidence I read for the parties was as follows.
For the husband his material filed with the assistance of a lawyer on 26 July 2013, being a financial statement, an affidavit and a response.
For the wife I read her amended application, affidavit and financial statement filed 15 May 2015.
The following exhibits were tendered.
Court exhibit 1 was an initial balance sheet of the assets and liabilities, which was amended during the hearing and replaced with a significant reduction in the number of assets I was required to deal with. The husband consented to this amended document.
The husband obtained documents which were of great assistance to the Court in understanding his case and they were as follows.
Husband’s exhibit 1, various Redbook values of cars he and the wife own and/or are in their possession or control or which they have disposed of.
Husband’s exhibit 2, a statement of a personal loan he has with (omitted) Bank, which is a loan he acquired post-separation. The closing balance of that loan was $24,700 as at 2 May 2015.
Husband’s exhibit 3, a series of (omitted) Bank documents, being statements of his personal (omitted) account with the (omitted) Bank, account number ending (omitted), which indicates it has a small overdraft of $1000 and that he makes regular payments of $40 each two weeks to reduce the personal loan he has with the (omitted) Bank.
Husband’s exhibit 4 A (omitted) line of credit loan showing he has a current debit balance of $8000 as at 1 May 2015, again a post-separation debt.
Husband’s exhibit 5 – a statement of his superannuation balance as an employee of a (employer omitted) with a current balance written in the husbands’ hand and accepted by the wife of $92,511.
Husband’s exhibit 6 - two payslips showing a direct deposit of $25 each week to repay a loan he says he owes to his brother, borrowed to purchase a Holden motor vehicle which loan he says was in the sum of $50,000. The wife disputes this is a loan but does not dispute that money was contributed by the husbands; brother to fund the purchase of a car which is in the wife name and which the husband drives and seeks to be transferred to him.
The husband asserted the money was advanced in 1999. If the husband has been paying $25 a week to his brother since that time he has paid $20,800.
Husband’s exhibit 7 the current balance of a (omitted) Bank MasterCard debt which after hearing the evidence was accepted as joint matrimonial debt.
Husband’s exhibit 8, which shows that as at 6 September 2012 – just shortly after separation – that debt was $8637. It is currently now $5162.
Husband’s exhibit 9, various insurance policies for various cars that the parties have.
For the wife, her exhibit was the amended balance sheet.
The husband did not ask the wife any questions. He certainly could have, because there were issues in dispute, but given he conceded his poor behaviour during the marriage and conceded that his poor behaviour had made the wife’s role of parenting and homemaking more arduous, the matters raised in the affidavit material were really matters for submission.
Mr Gittoes-Caesar asked the husband questions under cross-examination in relation to debts, payments of money and the like.
The competing applications of the parties are as follows:
The wife seeks effectively 67 per cent of the asset pool and that I treat the liquid and superannuation assets as the one pool.
The husband says, “I would like a sum of $25,000 and we each keep what we have.”
His application would result in a payment to the wife of around 55% depending on values.
The husband conceded that due to her care of the child, the wife was entitled to have more of the assets of the marriage than he.
As things now stand, the wife’s income is some $74,000 gross a year and the husband’s $49,000, and that disparity in income will continue if not widen into the future.

Short Chronology

The parties commenced a relationship in 1997.
The wife’s first child to a different father Y was born in (omitted) 1997.
The wife alleges in her affidavit that the father physically assaulted her, ripping her clothes off and otherwise behaved in a very poor manner towards her from the commencement of the relationship.
In 2002, the parties purchased an investment property in Property H.
The wife owned a property at Property W prior to the relationship.
This property became the matrimonial home. The wife asserts the property was worth $102,000 at cohabitation with a mortgage of $95,000 but I have no evidence of those figures. The husband does not dispute this.
In 2003 the mortgage was increased for renovations to the home. The wife says the money was not spent on renovations rather the husband purchased cars, motor bikes and other boy’s toys.
The husband says money was spent on renovations and the purchase of motor vehicles and the like for use of each of them.
The wife describes incidents of the husband’s poor behaviour in (omitted) 2002, 2004, late 2005, (omitted) 2006 when the father broke her car windscreen and shortly after marriage on (omitted) 2008. The husband admitted to throwing an esky through the windscreen of the mother’s car whilst she was in the car.
The wife asserts the husband smashed up the house in late 2008.
In early 2010, the husband injured his back and was unable to work for a period of time. The husband says he was on compensation payments.
The wife says in (omitted) 2010 the parties commenced to live in separate homes, although they remained in a relationship.
The husband disputes this claim and was clear that they lived together until final separation.
The husband agrees there was a period of about five weeks up to about (omitted) 2010 when he and the wife were physically separated, however, he asserts they always lived together at Property W and that he did not maintain a separate home to her at (omitted).
X was born on (omitted)2010.
The wife says in 2011 the husband threatened her with a sledgehammer, (omitted) 2012 the husband threatened her and harassed her, destroyed her underwear, threatened to stab her on (omitted) 2012, took X from her while holding a knife, assaulted her on (omitted) 2012, choked her and abused the maternal grandfather.
On 17 October 2012 the parties separated on a final basis.
The wife says the husband began a campaign of harassment and intimidation but he spent unsupervised time with the child in December 2012.
That time had ceased by 15 December 2012 as the husband threatened to harm the child and harassed the wife.
The wife applied for an urgent AVO on 16 December 2012 and that order was granted on 9 January 2013.
The wife says the husband continued to harass her despite the AVO being in place. For example, she received 14 calls from the husband on her work mobile on a daily basis between 31 January 2013 and 18 February 2013.
The wife says the husband harmed her son, Y, on 18 May 2013 and he was taken into custody pursuant to that assault on 20 May 2013.
The husband admitted guilt to a charge of malicious damage and intimidation and breach AVO and was sentenced to 18 months good behaviour. The AVO is still current and will cease on 7 June 2015.
The husband was sentenced to 18 months good behaviour for assaulting Y on 17 May 2013.
On 2 August 2013 I made orders for the husband to spend supervised time with the child at (omitted) Contact Centre which time has continued.
The child has telephone contact with his father, and the mother and father each agree that time is going well.
That the parties were able to agree to parenting is testament to the fact that the husband has begun a slow, but clear and evident road to recovery from what can only be described as family violence both in the criminal justice system as well as in the family law system and cannot be tolerated at any level. The husband agrees with that principle.
Now, despite the fact that these were two very hard working people, the mother worked, the father worked and they had a (omitted) business on the side, today we have a very small asset base.
The parties obtained significant numbers of credit cards and have significant debt from those cards. They increased their mortgages, entered into personal loans, borrowed money from family to fund a lifestyle they could not afford. That pattern has continued for the husband post separation.
The wife would say it was the husband who squandered their hard earned money on cars and motor bikes. The husband admits to being a motor car enthusiast and that this is his hobby.
The husband would say these were joint decisions and the wife and he enjoyed a good lifestyle when they were together.
Their home was sold in October 2012, and some $415,000 was placed into a controlled moneys account from that sale together with the sum of $32,000 from the sale of a ski boat in the husbands’ possession.
Yet today of the $447,000 that would have been in the controlled moneys account as at October 2012 there is now only $109, 881 or as I will find $110,000 with interest.
Monies were by agreement taken out of the controlled monies account to pay the following.
The parties each received a payment of $5,000 to assist them.
$3,827 was paid to extinguish the husbands’ arrears of child support.
$8,413.29 was paid to the husband to reduce the then (omitted) line of credit loan to nil.
$206 to the husband to reimburse him for the boat registration he had paid.
$16,615 to the wife to payout a (omitted) Bank loan.
$34,462.58 to the wife to payout a (omitted) Bank loan.
$1,709 to the wife to pay out an (omitted) Bank credit card.
$10,000 to the husband to repay him for a loan he took over from the mother which she had been struggling to pay.
Despite these parties always being in work even when the husband was injured and off work he received workers compensation payments, the parties have always struggled to manage their money and they each incurred significant credit card and other personal loan debts.
Looking now at the asset pool.
The moneys held in the controlled moneys account with Watts McCray I find will by the time these orders are made be some $110,000.
The (omitted) Holden is agreed at a value of $1,000.
The (omitted) Holden is an agreed value of $500.
The Econovan is an agreed value of $200.
The Holden (omitted) is an agreed value of $26,650.
The (omitted) Commodore is an agreed value of $400.
The shipping container has an agreed value of $1,000.
The husband’s tool chest $200.
The car hoist $1500.
The trailer $500.
The wife has $2,500 in household contents.
The husband has $1500 in household contents.
Post-separation and prior to the hearing the parties disposed of the following.
The wife a Nissan Patrol for $10,000.
The husband, a Holden (omitted) for $4,000; a Honda motor bike for $1,000; and another Honda motor bike for $1500; a (omitted) motor bike for $200.
The wife has disposed of assets worth $10,000 post-separation, and the husband assets worth $6,700 post-separation.
The current asset pool absent superannuation is worth $145,950.
I favoured the values of motor vehicles provided by the husband. He is someone who is very interested in cars. He fiddles with cars. He tries to do them up. He has a mechanical bent. The wife produced no evidence of any values of these motor vehicles in his possession.
The husband produced Red Book values and some of these values were against his interest. He accepted a higher value for the Holden at $26,650 than that he had originally put at $20,000. He did the same with a car hoist that the wife said was worth $1000 but he said was worth $1500. I found him to be a witness of truth and credit on these issues of the value of motor vehicles and ultimately the wife accepted his position.
The wife disposed of $10,000 post-separation, the husband $6,700, however, the husband also received a workers compensation claim of $17,531 post separation for injuries sustained during the marriage and relationship. I do not propose to add back these assets into the matrimonial pool, but I will have regard to those amounts in my general discretion under section 75(2) of the Act as assets each party has had the benefit of to the exclusion of the other.

ASSETS
Ownership		Description	Value
1	Joint	Monies held in controlled monies account with Watts McCray Lawyers	$110,000
2	Husband	(omitted) Holden (registration number (omitted))	$1,000
3	Husband	(omitted) Holden (white with (omitted) modification - unregistered)	$500
4	Husband	Holden (omitted) (registration number (omitted))	$200
5	Wife - in husband’s possession	(omitted) Holden (omitted)	$26,650
6	Husband	Holden (omitted)	$400
7	Husband	Shipping Container	$1,000
8	Husband	(omitted) tool chest with tools	$200
9	Husband	Mechanic car hoist	$1,500
10	Husband	Car Trailer	$500
11	Wife	Household contents	$2,500
12	Husband	Household contents	$1,500
Total		$ 145,950

LIABILITIES
Ownership		Description	Value
13	Wife	Centrelink Debt	$18,419
14	Wife	Centrelink Debt	$6,322
15	Husband	Husband's (omitted) Bank debt	$8,637
Total		$ 33,378

SUPERANNUATION
Member		Name of Fund	Type of Interest	Wife/de facto partner's value
16	Husband	(omitted) Super	$92,511
17	Wife	(omitted) Super	$51,871
18	Wife	(omitted) Super	$57,744
19	Wife	(omitted) Superannuation	$6,729
Total		$ 208,855

The total assets of a liquid nature are $145,950.
Superannuation totals $208,855 of which the husband has $92,511 and the wife $116,344.
The asserted marital debts.
For the husband a (omitted) Bank MasterCard debt at separation of $8637 now some $5,162 and debt to his brother of $50,000 as at separation, now some $30,000.
Wife’s Centrelink debt debts totalling $24,741.
The wife conceded the husband’s (omitted) Bank debt was in existence at separation and thus I find it is a debt of the marriage being a debt in the amount $8,637.
I accept the submission made by Mr Gittoes-Caesar that the $50,000 the husband asserts is a joint debt in respect of the purchase of the Holden (omitted) motor vehicle during the relationship has not been proven to my satisfaction as a loan and such a claim by the husband’s brother may be statute barred. However, it was paid to the parties and I accept was used to purchase this car. Thus it is a contribution the husband has made to the purchase of this motor vehicle during the marriage. The car is registered in the wife’s name and is in the husband’s possession and he wishes to retain the car. I accept his evidence that he is repaying the sum advanced to his brother and has paid some 20,000 in its reduction since 1999, but I do not allow that as a matrimonial debt as such.
The wife has two Centrelink debts, one of $18,419 and another of $6,322 totalling $24,741. Mr Gittoes-Caesar says that I ought to include those debts in the matrimonial pool because the husband received the benefit of the wife’s fraud on the Commonwealth purse during the relationship. The husband disagrees with that proposal.
The wife says she initially received this benefit in the initial five week separation in March to May 2011. The benefit ceased one month after separation in November 2012. As best I could ascertain the reason the wife was not entitled to the payments received was that she was working and receiving a benefit at the same time.
The wife asserts in submission and her affidavit that this should be regarded as a matrimonial debt because the husband over‑bore on her, mentioned it to her on many occasions, knew it was happening, and that she carried out this fraud on the public’s purse because of her fear of the husband.
Mr Gittoes-Caesar says that this money is similar to a party who does not pay tax during the relationship. The family benefits from the non-payment of tax during the marriage and this is the same here. It is clear the family benefited from this money. I have no doubt that the husband wife and Jack benefited from this fraudulent obtaining of benefit by deception and as such I accept Mr Gittoes-Caesar’s submission that the debt of $24,741 is together with the husband’s (omitted) Bank MasterCard debt of 8,637.32 a matrimonial debt.

These debts total $33,378.32 or rounded down $33,378.
When I deduct that total from the assets this leaves a net asset pool, $112,572 to divide by way of liquid assets.
In relation to the superannuation, the husband is seized of some $92,000 and the wife around about $116,344.
The two pool or one pool approach. I find favour with the two pool approach. These parties are young. The wife is only 41 years of age. She has 20 years before she can access any superannuation. The husband is 47 and can access his superannuation in perhaps 10 to 13 years depending on his health. The wife has $24,000 more in superannuation than the husband and this differential will increase over their working life.
The wife has a higher income of $74,000 per annum over the husband’s $49,000 per annum. This is some $25,000 per annum more than the husband earns which will always be the case.
The wife being younger than the husband has a longer time to work, and does not suffer from any injury which affects her capacity to work unlike the husband. The husband is a (occupation omitted) with the (employer omitted) and works as a (occupation omitted). He sustained a back injury some years ago and received compensation payment.
The husband is 47 years of age and tells the Court he will likely be working for only another 10 years due to a back injury. Given that he is a manual worker I accept his injury may impact upon his capacity to keep working beyond the age of 60 years. He will never rise above the work he does now, which is secure and appropriate work for him.
Contra the wife who has some talent and has been promoted in her work whilst caring their son. The wife has a superior capacity to earn income than does the husband despite her primary care of the parties’ son. The wife’s superannuation will always exceed that of the husband due to her higher income earning capacity and length of years to work.
I am required under the law to take a four-stage approach under s.79; as decisions such as Ferrero & Ferrero (1993) FLC 92-335 and Hickey v Hickey; AG for Commonwealth (Intervenor) (2003) 30 Fam LR 355 specify. The four stage approach is still good law even after Stanford & Stanford [2012] HCA 52.
The first stage is to identify the matrimonial property, its value and nature.
The second stage is to assess the value of the parties’ contributions expressed as a percentage of the value of their assets to the acquisition, maintenance, conversation and renovation of their matrimonial property, having regard to the factors under s.79(1)(a), (b) and (c).
a)Section 79(1)(a) is an assessment of the parties direct financial contribution;
b)Section 79(1)(b) is an assessment of the indirect contribution; and
c)Section 79(1)(c) is an assessment of the value of each parties' contribution as a parent and homemaker during the marriage.
The third stage under s.79(4)(e) is to determine whether, having regard to the factors under s.75(2), I ought vary the assessed percentage entitlement of either party to take into account their future needs.
The fourth stage is to look back at the consequences of the proposed orders to determine if they are just and equitable in all the circumstances.
Mr Gittoes-Caesar submitted whether I adopted a one or two pool approach I should make a super splitting order so that the wife receives 70% to 67% of the combined superannuation entitlement of each party. I have no evidence before me of the parties’ superannuation entitlement at separation. The husband says I should leave the superannuation entitlement of each undisturbed.
In relation to the division of assets, the wife says she is entitled to some 70 per cent of the assets, being both the superannuation and the liquid assets for the following.
On a direct financial contribution basis, the party’s contributions were somewhat equal. The wife had a small equity in her property at commencement of cohabitation of perhaps $20,000 however I accept this home was the matrimonial home during the relationship.
However during the relationship the husband received various inheritances totalling some $55,000. The wife agrees the husband received these monies yet asserts the husband spent his inheritances on himself a matter the husband denies.
The parties worked and they pooled their money. The husband’s case is that he gave his income and other money to the wife and she gave him an allowance of some $200 a week. He says she ran the family finances. Having regard to his difficulty with writing and to use his words “I’m almost illiterate”, that evidence has the air of reality and truth about it. I find each of these parties contributed the moneys they had to the benefit of the household, although of course the husband did spend money on his hobby of cars as he conceded was the case.
In light of this evidence I find there was an equal contribution by each by way of direct financial contribution to the current asset base.
The husband says and concedes that the wife’s contribution as parent and homemaker was made more arduous by his poor behaviour. That is an appropriate and proper concession by him and I will allow the wife five per cent for the greater arduousness of carrying out her parenting and homemaking role in circumstances where she was subjected to family violence on a regular and ongoing basis and, at times, in the presence of the child.
The wife asserts, post separation, her contributions to the family have been greater than the husband’s as she has had, effectively almost sole care of the child as he has only been able to spend supervised time with his father, there are no orders for overnight time into the future although day time unsupervised will now commence.
I accept that the wife’s post separation contribution to parenting of the child is superior to the husband’s and I will allow her further two per cent for that contribution.
Going now to the future needs. The husband pays child support at the assessed amount and when he no longer has to pay supervised contact fees of $300 per month, I am satisfied he will begin to contribute more money to the care of his son. As he said in his submissions to me, “it isn’t enough what I pay. If I could pay more, I would.” I accept his sincere commitment to his son, which is the reason he has begun the all-important retrieval of his prior very poor functioning and behaviour.
I accept however that the child support the husband will pay will always be modest and that his mother will be his primary financial, provider into the future.
Although the wife earns more than the husband, some $25,000-odd dollars per annum now and that is likely to continue I accept the overwhelming day-to-day, physical, emotional and psychological care of the child will be left to the wife into the future and it may be some time before his father can spend overnight time with the child and the father, understands he must go slowly. In the light of this evidence I will allow the mother a further 5 percent adjustment.
The husband has had the sole benefit of his workers compensation payment of $17,553 however has continued and will pay the money advanced to the parties to buy the Holden (omitted) which I will by order transfer to the husband. I will make no further adjustment to the wife or husband for these matters.
This then gives the parties a position of a 62 per cent adjustment to the wife and 38 per cent to the husband, or a difference of 22 per cent overall.
The final issue is whether these orders are just and equitable in all the circumstances. To answer that question I will now determine what each party will receive by way of liquid assets and superannuation.
The husband will receive $8637 from the controlled monies account to discharge the (omitted) Bank debt and the wife $24,751 to discharge her debt to Centrelink. This is a reduction in the controlled monies account to $76,612.
The husband presently has assets worth $33,450 and the wife $2,500 in her possession.
The net liquid assets for division are the assets in the parties’ possession totalling $35,950 plus the balance of the controlled monies account of $76,612 which is a total of $112,562 to divide between them.
If the husband is to receive 38% of the liquid assets his entitlement is $42,773 to him and $69,789 to the wife.
The husband presently has $33,450 and requires a further sum of $9323 from the controlled to reach his entitlement of $42,773. He will also receive $8,637 from the controlled monies account to pay the debt to (omitted) Bank which is a total payment to him in cash of $17,960 or rounded up $18,000.
The wife presently has $2,500 and requires a further sum of $67,289 from the controlled to reach her entitlement of $69,789. The wife will also receive $24,751 from the controlled monies account to pay the Centrelink debt which is a total payment to her $95,416.
The wife will after payment of her Centrelink debt have cash of $67,289 and furniture of $2,500.
The husband after payment of his (omitted) Bank debt will have cash approaching $13,500 as the (omitted) Bank debt today is only $5,162 and he is receiving $8637 for that debt and his other assets worth $33,450. The husband continues to pay back his brother for monies advanced to the parties during the marriage and the wife has no liability for this.
Additionally the wife disposed of a car post separation and received of $10,000 and the husband disposed of vehicles post separation and received a sum of $6700 thus the wife received more than the husband from this post separation disposal of assets.
In relation to the parties superannuation interests. The wife already has a greater entitlement to superannuation than the husband which differential will continue to increase over her working life.
The asset pool is small and the husband will more than likely retire within 10 years whereas the wife has 20 years of a work on the present evidence at a higher wage than the husband and has a superior working and income earning capacity to him.
Given the small asset pool and that the wife is receiving, properly, the bulk of cash available I will make no further adjustment to either party’s current entitlement to superannuation.
I find these orders are just and equitable and will so order.

I certify that the preceding one hundred and forty six (146) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Associate:

Date: 12 June 2015

[2015] FCCA 1594

12 June 2015

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Remedies

Costs

Fiduciary Duty