Carano & Carano (No 2)
[2024] FedCFamC2F 461
•22 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Carano & Carano (No 2) [2024] FedCFamC2F 461
File number(s): MLC 10929 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 22 March 2024 Catchwords: FAMILY LAW– final property orders – oral reasons delivered soon after last day of hearing – settled reasons – third parties – 7 day final hearing – More than 400 items of personal property valued – very detailed evidence from Husband and Wife as to personal property – 2125 page court book – ownership and value of more than 149 items of personal property in dispute – allegation of gift of personal property by delivery – whether Husband or Wife had dismantled or removed personal property prior to valuation – fraud/theft allegations not proven – third party and other peoples claim of ownership accepted – whether Husband or Wife should retain FMH – long marriage – disparity of initial contribution – Husband brought in land unencumbered and machinery – Husband’s ill health significant aspect of Wife’s homemaker contribution – one child with special needs significant aspect of Wife’s parenting contribution – where each party sought sec 75(2) adjustment in his/her favour – NDIS entitlement – substantial part of NDIS not received but applied to administration – carer’s pension – continuing poor health of Husband – Wife with care of teenage child – finding of equal contribution – finding no section 75(2) adjustment – which party to obtain FMH – who should retain items of personal property – order for items to be delivered to adult child. Legislation: Evidence Act 1995 (Cth) section 140
Family Law Act 1975 (Cth) ss 75(2), 79 and 80
Federal Circuit and Family Court of Australia Act (2021)
Cases cited: Blass & Blass [2022] FedCFamC1A 63
Briginshaw v Briginshaw (1938) 60 CLR 336
Brown & Dunn (1893) 6 R 67
Dougherty and Dougherty v Dougherty (1987) FLC 91-823
Henderson v Queensland (2014) 89 ALJR 162
Hickey and Hickey and the AG for the C’lth of Australia (2003) FLC 93-143
Johnson v Page (2007) FLC 93-344
Keskin & Keskin and Anor (2019) FLC 93-932
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Nolan v Lady Nolan [2004] VSCA 109
Stanford v Stanford [2012] HCA 52
White and Tulloch v White [1995] FamCA 127
Division: Division 2 Family Law Number of paragraphs: 171 Date of last submission/s: 27 March 2024 Date of hearing: 12 – 20 March 2024 Place: Melbourne Counsel for the Applicant: Ms Clarkin with Mr Brear Solicitor for the Applicant: MMH Lawyers Counsel for the First Respondent: Ms Taylor Solicitor for the First Respondent: SMR Legal Litigation Guardian for the Second and Third Respondents, in person: Ms J ORDERS
MLC 10929 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CARANO
Applicant
AND: MR CARANO
First Respondent
MR C CARANO
Second Respondent
MS B CARANO
Third Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
22 MARCH 2024
THE COURT ORDERS THAT:
1.Within 7 days of the date of these Orders the funds held in the trust account of D Law Firm ($6,933) be paid to Ms Carano (‘the Wife’) as follows:
(a)the sum of $2,500 to SMR Legal in payment of the tax invoice issued to the Wife for the Wife’s half share of the costs of the Court Book in accordance with Order 6 of the Orders made on 16 February 2024 by this Court; and
(b)the balance (about $4,433) as directed by the Wife.
2.Mr Carano (‘the Husband’) pay to the Wife the sum of $447,493.50 (“the payment) within 120 days of the date of these Orders (“the date”).
3.Within 30 days the Husband make available for collection by the Wife’s nominee the items listed in Annexure A, save that the Wife’s nominee shall not be a relative of the Wife and the arrangements shall be made in writing by text message or email and with no less than 14 days notice and until collected the Husband store those items as is appropriate to the nature and condition of the item.
4.Within 30 days the Wife make diligent search for the items described as Mr E’s items and when located, the Wife or her nominee deliver to the offices of SMR Legal the items listed at Annexure E described as Mr E’s items to be collected by the Husband for delivery to Mr E.
5.Contemporaneously with the payment:
(a)the Wife withdraw at her expense caveat lodged on the real property situate at and known as F Street, Town G in the State of Victoria being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“the farm”); and
(b)the Husband do all such acts and things and sign all such documents as may be required to transfer to the Wife, at the expense of the Wife, resource licences being ID … (“the resource licences”).
6.In the event that the whole of the payment has not been made by the date, the farm real be sold after a further 120 days (to allow for presentation for sale) altogether out of Court ("the sale") and upon completion of the sale, the proceeds of the sale be applied:
(a)first to pay all costs, commissions and expenses of the sale;
(b)secondly to discharge any encumbrance affecting the real property;
(c)thirdly, so much of the payment as is then outstanding together with interest thereon at the rate prescribed by the applicable rules calculated monthly from the date to the Wife; and
(d)fourthly, the balance to the Husband.
7.Pending the payment or completion of the sale:
(a)the Husband have the sole right to occupy the farm and during such right of occupation the Husband pay all rates and taxes and like apportionable outgoings of or with respect to the real farm as they fall due;
(b)the Husband and the Wife hold their respective interests in the farm upon trust pursuant to these orders; and
(c)neither the Husband nor the Wife encumber the farm without the consent in writing of the other.
8.It is declared that:
8.1There be a declaration that the goods and chattels listed at Annexure C are the sole property of the second and third respondents, Mr C Carano and Ms B Carano; and
8.2There be a declaration that the goods and chattels referred to in Annexure D are the property of the second and third respondents, Mr C Carano and Ms B Carano, to the extent of the percentage entitlement set out therein; and
8.3The statement of claim of the second and third respondents, Mr C Carano and Ms B Carano be otherwise dismissed.
9.The Husband be entitled to retain for his sole use and benefit absolutely, to the exclusion of the Wife, all plant, equipment, antiques and collectables in his possession and or situated including all items at the farm, save for those items listed at Annexures A, C and D.
10.The Wife retain for her sole use and benefit absolutely to the exclusion of the Husband all plant, equipment, antiques and collectables in her possession, including the items listed at Annexure B.
11.In accordance with Section 90XT(4) of the Family Law Act 1975, a base amount of $162,889 is allocated to the Wife out of the Husband’s interest in Super Fund member number … (“the fund”).
12.In accordance with Section 90XT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable:
(a)the Wife (or such other person to whom a splittable payment is payable) is entitled to be paid, using the base amount allocated in the immediately preceding Order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001;
(b)the entitlement of the Husband in the fund (or the entitlement of such other person who becomes entitled to receive a payment out of the Husband’s superannuation interest) is correspondingly reduced by force of this Order.
13.The Trustee of the fund, Super Fund 1 Pty Ltd, (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
(a)Calculate, in accordance with the requirements of the Family Law Act 1975, the entitlement awarded to the Wife in the immediately preceding clause of the Order (“the entitlement”); and
(b)pay the entitlement to the Wife from the Husband’s interest in the fund; and
(c)make a corresponding reduction in the entitlement that the Husband would otherwise have in the Fund but for these Orders.
14.These Orders have effect from the operative time and the operative time is five business days from the service of a certified copy of these Orders upon the Trustee by way of prepaid post.
15.Within 14 days of these Orders being made:
(a)The Wife serve a sealed copy of these Orders upon the Trustee; and
(b)The Wife give notice in writing to the Trustee pursuant to regulation 72 of the Family Law (Superannuation) Regulations 2001.
16.Orders 8 to 11 are binding on the Trustee.
17.There be liberty to apply to each party in relation to the implementation and enforcement of these Orders.
18.Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions and like chattels in the real property being deemed to be in the possession of the Husband);
(b)each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(c)insurance policies remain the sole property of the owner named thereon;
(d)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(e)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
ANNEXURE “A”
ITEMS IN POSSESSION OF HUSBAND TO BE RETAINED BY THE WIFE
ASSET NUMBER ITEM VALUATION AMOUNT 4 Motor Vehicle $15,000.00 75 Motor Vehicle $1,800.00 76 Motor Vehicle $6,500.00 77 Item of Furniture $200.00 78 Motor Vehicle $500.00 80 Child’s push bike $500.00 81 Item of Furniture $300.00 84 Item of Furniture $800.00 127 Item of Furniture $140.00 129 Item of Furniture $200.00 130 Crockery $1,000.00 133 Item of Furniture $800.00 137 Crockery $60.00 139 Item of Furniture $300.00 140 Crockery $100.00 228 Motor Vehicle $1,600.00 388 Crockery $300.00 422 Motor Vehicle $3,500.00 Total Value $33,600.00 ANNEXURE “B”
Items in Possession of Wife that were valued ASSET NUMBER ITEM VALUATION AMOUNT 67 Motor Vehicle $7,200 366 Item of Furniture $40 367 Item of Furniture $880 368 Item of Furniture $120 369 Item of Furniture $3,500 370 Item of Furniture $220 371 Ornaments $50 372 Item of Furniture $200 373 Figurines $200 374 Ornaments $250 375 Crockery $50 376 Item of Furniture $250 377 Collectible Ornaments $200 378 Item of Furniture $80 379 Crockery $110 380 Games $40 381 Games $50 382 Crockery $100 383 Item of Furniture $200 384 Item of Furniture $350 385 Item of Furniture $1,500 386 Item of Furniture $2,200 TOTAL $17,790 a)
ANNEXURE “C”
SOLELY OWNED BY MR C CARANO & MS B CARANO
ASSET ITEM 5 Motor Vehicle 10 Motor Vehicle 11 Motor Vehicle 13 Motor Vehicle 14 Motor Vehicle 37 Motor Vehicle 39 Lawn mower 40 Lawn mower 41 Lawn mower 42 Lawn mower 43 Lawn mower 44 Lawn mower 45 Farm Machinery 46 Lawn mower 47 Farm Machinery 48 Farm Machinery 49 Tools 50 Tools 51 Farm Machinery 52 Farm Machinery 53 Farm Machinery 54 Farm Machinery 55 Farm Machinery 56 Farm Machinery 57 Farm Machinery 58 Farm Machinery 59 Farm Machinery 60 Farm Machinery 74 Farm Machinery 79 Farm Machinery 83 Farm Machinery 88 Farm Machinery 116 Farm Machinery 117 Farm Machinery 120 Farm Machinery 121 Farm Machinery 147 Motor Vehicle 153 Motor Vehicle 158 Farm Machinery 164 Farm Machinery 165 Farm Machinery 166 Farm Machinery 167 Farm Machinery 169 Mower 173 Motor Vehicle 175 Motor Vehicle 176 Motor Vehicle 179 Motor Vehicle 180 Farm Machinery 181 Motor Vehicle 183 Motor Vehicle 185 Motor Vehicle 186 Motor Vehicle 187 Motor Vehicle 188 Farm Machinery 189 Farm Machinery 190 Farm Machinery 194 Farm Machinery 195 Farm Machinery 196 Motor Vehicle 197 Motor Vehicle 198 Farm Machinery 199 Motor Vehicle 201 Motor Vehicle 205 Motor Vehicle 206 Motor Vehicle 208 Motor Vehicle 209 Motor Vehicle 210 Motor Vehicle 211 Motor Vehicle 212 Motor Vehicle 215 Motor Vehicle 217 Motor Vehicle 218 Motor Vehicle 219 Motor Vehicle 220 Motor Vehicle 221 Motor Vehicle 222 Motor Vehicle 224 Motor Vehicle 225 Motor Vehicle 227 Motor Vehicle 235 Motor Vehicle 243 Motor Vehicle 244 Motor Vehicle 245 Motor Vehicle 246 Motor Vehicle 247 Motor Vehicle 248 Motor Vehicle 250 Motor Vehicle 255 Motor Vehicle 256 Motor Vehicle 258 Motor Vehicle 264 Motor Vehicle 266 Motor Vehicle 270 Motor Vehicle 286 Motor Vehicle 291 Motor Vehicle 294 Motor Vehicle 299 Motor Vehicle 300 Farm Machinery 303 Farm Machinery 310 Farm Machinery 312 Farm Machinery 313 Farm Machinery 315 Farm Machinery 319 Farm Machinery 324 Farm Machinery 333 Farm Machinery 341 Farm Machinery 346 Farm Machinery 387 Farm Machinery 389 Farm Machinery 391 Farm Machinery 395 Farm Machinery 399 Farm Machinery 400 Motor Vehicle 402 Motor Vehicle 403 Farm Machinery 404 Farm Machinery 407 Motor Vehicle 408 Motor Vehicle 409 Motor Vehicle 410 Motor Vehicle 415 Farm Machinery 416 Farm Machinery 417 Motor Vehicle 419 Motor Vehicle 420 Motor Vehicle 427 Motor Vehicle 430 Motor Vehicle 431 Farm Machinery 434 Farm Machinery ANNEXURE “D”
ITEMS OWNED BY MR C & MS B CARANO JOINTLY WITH THE HUSBAND
ASSET NUMBER ON H COMPANY REPORT ITEM VALUATION AMOUNT OF ITEM 2nd & 3rd Respondent’s % SHARE OF ITEMS JOINTLY OWNED WITH THE HUSBAND 9 Motor Vehicle $2,000 AOS 50% 20 Farm Machinery $8,000 50% 26 Farm Machinery $1,600 50% 65 Motor Vehicle $1,800 50% 72 Motor Vehicle $12,000 71% 111 Tools $250 50% 154 Motor Vehicle $5,500 66% 162 Farm Machinery $20,000 71% 163 Farm Machinery $7,000 50% 170 Farm Machinery $2,000 50% 191 Motor Vehicle $120 50% 192 Farm Machinery $400 50% 214 Farm Machinery $7,000 50% 249 Farm Machinery $500 50% 266 Farm Machinery $3,000 50% 267 Farm Machinery $500 35% 428 Farm Machinery $1,500 35% ANNEXURE “E”
MR E’S ITEMS
Coffee table removed by Wife from the real property
Mr E’s ornaments
Mr E’s small item of furniture
Small item of furniture belonging to Mr E
Table made by Mr E
Item of furniture
Tools made by Mr E
Ornament made by Mr E totalling $700
Mr E’s school personal items
Mr E’s books
Mr E’s personal itemsNote: 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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
res temporeINTRODUCTION
These are the settled reasons of a judgment delivered res tempore, that is oral reasons delivered a short time after the end of the hearing, but not immediately after the hearing. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add headings, citations, and passages of authorities,[1] to add passages of evidence and findings which, although made, were not read out by omission or lack of time, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
[1] Passages of legislation, authorities (that is precedent or helpful decisions of earlier cases) and evidence were not read out in the oral reasons but were referred to and usually referred to as “the settled reasons will insert…”
The Wife issued proceedings on 5 October 2021 and the hearing proceeded over 7 days (the 4 days of the week from Tuesday 12 March 2024 and three days of the following week from Monday 18 March), concluding on Wednesday 20 March 2024. The Wife was represented by lawyers appointed by the Family Violence Cross Examination Scheme and pursuant to section 102NA the Family Law Act 1975 (Cth) (‘the Act’).
The principle question[2] I must determine in these proceedings is how the many different items of the parties’ property are to be divided or adjusted between them after a long marriage where three children were raised. In bitterly fought proceedings in this court each of the children’s parents seek different property settlement or property adjustment orders pursuant to section 79 of the Act.
[2] The oral reasons commenced at this point.
Ms Carano, now aged 48 years, and Mr Carano, now aged 54 years, started dating back in 1995, became engaged to be married in 1997, married in 1998 and separated in 2021. For convenience I will refer to them as ‘the Wife’ and ‘the Husband’ and at times, together, as ‘the parents’. They commenced cohabitation at marriage.
The Husband’s parents, Mr C Carano and Ms B Carano have been joined to the proceedings as the second and third respondents and for convenience they will be referred to as ‘the senior Caranos. The senior Caranos claim over 100 items of personal property are owned by them (‘the 100 items’), and other items are jointly owned by them and the Husband (the ‘other items’), notwithstanding they have been, for many years stored on the property owned by the Husband and/or the Husband and Wife and upon which was built, a couple of years after marriage over 1999/2000, the former matrimonial home (‘the farm’).
The second respondent, Mr C Carano, was born in 1936 and is aged 87 (‘Mr C Carano’) and Ms B Carano is of similar age (‘Ms B Carano’). Shortly before the final proceeding commenced, I made orders that their daughter, the Husband’s sister, Ms J, be appointed as their litigation guardian. The solicitors who had previously acted for the senior Carano’s withdrew from the proceedings and Ms J appeared as a litigant in person as the litigation guardian of her parents in these proceedings.
The case of the Husband and that of the senior Caranos were entirely aligned as to ownership of the 100 items and the other items.
BACKGROUND
The Husband and Wife commenced cohabitation when they married. The Husband and the Wife have three children, Ms K, now aged 21, Mr E, now 18[3] and X, now 16 years. Ms K is in university and appears aligned with the Wife and sadly does not spend any time with the Husband. Mr E lives with the Husband and appears aligned with the Husband and sadly does not spend any time with the Wife. X lives with the Wife and sadly does not spend any time with the Husband. Each parent regards the other as responsible for this sad state of family relationships, but it was not attempted, nor necessary, to explore the issue of responsibility for those circumstances in these proceedings.
[3] In the oral reasons the age of Mr E was by a slip uttered as “17” not 18.
Farmers & machinery & collecting old farming machinery
The Wife, the Husband and Mr C Carano had been farmers in the area of the farm, and at least the Husband and Mr C Carano had been interested in farm machinery all their lives. As they aged, what was once merely farm machinery became obsolete, and then in some circles, collectable. Mr C Carano, and from an early age, the Husband, pursued their interest in collecting and restoring old farm machinery. For convenience, I will refer to that machinery as ‘old farming machinery’.
The age of the machinery collected ranged over a large period of history and included farm equipment, various farming implements and parts and wrecks of such machinery. For convenience, I will refer, with intended respect, to the practise of locating, collecting, researching, recording, preserving and restoring old farm machinery, as ‘farm machinery collecting’. The Husband's qualification as a tradesperson assisted his hobby of farm machinery collection, as did his personality, that included the discipline of those who investigate, record, and preserve things, whether they be archaeologists, art curators, historians, or machinery collectors.
In the circle of old farm machinery collectors in Australia, the Husband is regarded as an authority of a discipline within a discipline. Later in the marriage, the Husband's hobby or interest became all-consuming. In this litigation the Wife complains, in substance, that the Husband spent too much time on his hobby, and later business of machinery collecting, at the expense of supporting the family. However, she asserts, and I accept, at least for substantial periods of their marriage, that she supported the Husband in his farm machinery collecting.
Between the two of the Husband and the Wife, they have been remarkably successful. The collection of farm machinery, including the 100 items and the other items claimed by the senior Caranos, now comprise over 400 items, and on the Wife's case, is valued at $679,350 plus a further $83,300 of inferred or imputed value to the machinery. The farm was, and remained, unencumbered by debt. The farm machinery was, and remains, unencumbered by debt. Had the Husband had an interest in some other hobby like golf, or even cricket, it is unlikely that he would be able to amass, with his partners support, such a valuable collection of items or machinery.
The farm is a large farm near a major regional city. The Husband had purchased the land back in 1994 before he met the Wife and had paid off the money he borrowed to purchase the property by the time of marriage. Soon after marriage, the Husband and Wife built their home on that land and lived there together until separation in mid-2021.
THE QUESTIONS TO BE ANSWERED
To determine what property adjustment orders are just and equitable, the questions or disputes the parties press can be broadly divided into the following chunks or categories, although some disputes inform more than one aspect of what orders should be made, and include:
What property should be considered and at what value[4]?
[4] Also known as (‘aka’) the first or the identify the property step of the preferred approach described in Keskin & Keskin cited later.
(1)Whether the senior Caranos still owned the 100 items and partly owned the other items?
(2)Whether after separation and before valuation the Husband had dismantled items (‘the dismantled items’). It was alleged he dishonestly did this for the purpose of reducing the value of those items and hence reducing the quantum of the Wife’s property settlement. The Wife alleges these items should be regarded as having a value of $152,000 in total.
(3)Whether there were items included in the valuation that did not belong to any of the parties? I will refer to these items as the ‘other peoples’ items.
(4)Whether, after separation, the Husband had removed many items of value from the farm to prevent their valuation?
(5)Whether, after separation, the Wife had broken into the sheds on the property and removed items of value? It was alleged she did this dishonestly and for the purpose of reducing the value of those items and hence reducing the quantum of the Husband’s property settlement.
(6)Whether there should be “add backs” of money on the Husband’s side because of product and resource sales not made and other such matters.[5]
[5] These allegations are described at items ? to ? of the Husband’s outline of case and items ? to ? of the Wife’s outline of case.
The contribution assessment[6]
[6] Aka the second or contribution step of the preferred approach described in Keskin v Keskin.
(7)The extent of each parents’ initial contribution and the extent to which the parties’ contributions in the pre marriage “dating” period of their relationship and the weight to be given to that given the myriad of other contributions over the 23 years of marriage and the 2 ½ years since separation.
(8)The weight to be given to all of the parents’ different contributions over many years at the second or contribution step of the orthodox ‘preferred approach’.[7] The Wife asserts contribution should be regarded as 44/55 percent in her favour and the Husband asserts contribution should be assessed at 45/55 percent in his favour. Within that question the following disputes or issues are pressed:
[7] As discussed in Keskin & Keskin discussed later.
8.1The extent of the Husband’s common ground illness of depression and the reliability of the assessment of his condition by his treating psychiatrist and within that question the issue of the reliability of the Husband’s account over many years to his treating psychiatrist of his condition and compliance with medication. The Husband’s circumstances are also at issue in the section 75(2) third step analysis.
8.2The extent of the Wife’s involvement in and support of the Husband the many years of his treatment for depression.
8.3Whether events that the Husband alleges triggered his depression occurred.
8.4Whether the family went without because of the Husband’s interest or obsession with collecting old farming machinery.
8.5The extent of the Wife’s involvement in and support of the Husband in the farming machinery collecting over the years.
8.6The extent or consequences of X’s diagnosis of Attention Deficit Disorder and Autism Spectrum Disorder, and the impact of that on the parties’ contributions. X’s circumstances are also at issue in the section 75(2) third step analysis.
The prospective section 75(2) factor analysis
(9)Whether any adjustment should be made, and in which parties’ favour, when considering the prospective factors set out in section 75(2) of the Act or the section 75(2) step of the orthodox preferred approach. Within that question the following disputes or issues are pressed:
9.1The extent or consequences of X’s diagnosis of Attention Deficit Disorder and Autism Spectrum Disorder and the impact of that on the Wife’s capacity and opportunity for paid employment.
9.2The extent or consequences the Husband’s depressive illness on his future income and capacity for paid employment.
What just and equitable orders resolve the dispute
(10)Which of the parties should retain the farm and hence pay out the other, and what amount should be paid?
(11)How the items of mostly farming machinery, that are owned by the Husband, or the Husband and Wife, should be divided between the Husband and Wife? That comes down to whether, regardless of who retains the farm, the Wife should retain the $218,000 bundle of items and or be paid or receive what sum of money instead?
Standard of Proof: Burden of proof
Any findings are made on the balance of probability. I apply section 140 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) which states as follows:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
It is also important to note in a case where in substance each party alleges the other is lying and is undertaking a fraud on the other, I bear in mind the guidance of the Full Court in Blass & Blass [2022] FedCFamC1A 63; (2022) FLC ¶94-085 at [39] and [40] which is as follows:
[39]The grave allegation of untruthfulness and its concomitant finding of abuse of child X as essential aspects of the determination of the case constituted, in accordance with s 140 of the Evidence Act 1995 (Cth), a factual conclusion that required persuasion, itself, on the balance of probabilities. It was not established on the mere failure by the appellant to prove that the behaviours had in fact occurred to that same standard.
[40]While the failure to accept a witness’s evidence is a necessary component of a finding of untruthfulness or fabrication, such mere failure is less than a finding of untruthfulness; untruthfulness is a further fact that is required to be found.
In this case each party alleges the other had undertaken a fraud in dealing with items to be valued and taken into account.
The demeanour of the parties and the witnesses that each called meant that, standing alone, substantial parts of each party’s case was credible. Evidence and circumstances contradict parts of each party’s case and evidence. This case is another that calls into sharp focus just what is required for a court to be satisfied of a state of affairs or event on the balance of probabilities in accordance with section 140 of the Evidence Act. Discussion of this area of law frequently intermingles section 140 of the Evidence Act with the broad statements of the law by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 (‘Briginshaw’). I am assisted by the discussion in the 18th edition of Odgers[8] at page 1439 and note that an early authority referred to is the Full Court in Johnson v Page (2007) FLC 93-344 where it was stated that reference to the Evidence Act rather than Briginshaw was appropriate.
[8] Odgers S, Thomson Reuters 18th Edition.
I have regard to and apply the helpful summary of authority from Odgers at page 1439 part of which I reproduce here:
In the Full Court of the Federal Court judgment of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition & Consumer Commission (2007) 162 FCR 466; 242 ALR 643; [2007] FCAFC 132 (Weinberg, Bennett and Rares JJ) it was observed at [31]:
Even though he spoke of the common law position, Dixon J’s classic discussion in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 at 361–363 of how the civil standard of proof operates appositely expresses the considerations which s 140(2) of the Evidence Act now requires a court to take into account. Dixon J emphasised that when the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. He pointed out that a mere mechanical comparison of probabilities independent of any belief in its reality, cannot justify the finding of a fact.
…Subsequently, in Qantas Airways Ltd v Gama (2008) 167 FCR 537; 247 ALR 273; [2008] FCAFC 69, Branson J (with whom French and Jacobson JJ agreed at [110]) simply observed at [139] that:
references to, for example, "the Briginshaw standard" or "the onerous Briginshaw test" … have a tendency to lead a trier of facts into error. The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s 140 of the Evidence Act provides.
…
…In 2010, the Court of Appeal in Morley v Australian Securities & Investments Commission (2010) 247 FLR 140; 5 BFRA 364; [2010] NSWCA 331 stated at [750]–[753]:
References in the authorities to "actual persuasion" should be understood as equivalent to the state of "satisfaction", as that word is used in s 140. It should not be understood as requiring a subjective "belief". … In order to be satisfied on the balance of probabilities, within the meaning of s 140, the tribunal of fact must reach an affirmative conclusion, or a definite conclusion, or an actual persuasion.
…
Similarly, the Victorian Court of Appeal has emphatically adopted the view that this provision [section 140] embraces the "Briginshaw principle", notwithstanding the language used and the clearly stated view of the ALRC to the contrary. In NOM v Director of Public Prosecutions (2012) 38 VR 618; [2012] VSCA 198, Redlich JA, Harper JA and Curtain AJA, after a discussion of the authorities, concluded at [124] that there is now a "settled" view that a "[m]ere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact. The fact finder must feel an actual persuasion of the occurrence or existence of the fact in issue before it can be found”.
Hence, I proceed on the basis that it is necessary that I must have an actual persuasion of the state of affairs or event in question.
How is the gravity of the matters alleged to be taken into account?
I am also assisted by section 140.60 of Odgers and the authorities there referred to under the “gravity” heading. The majority in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 stated that:
… the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
The learned author in the 18th Edition of Odgers discusses this point as follows:
While these observations related to the common law, they are applicable to s 140. The Full Court of the Family Court has emphasised that the gravity of allegations of sexual abuse of children mean that, in applying the test in this provision, the evidence must be “very carefully evaluated” and “[i]nexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse”. Similar observations have been made in respect of other kinds of “grave” allegations. The standard of proof remains the same but the court should not be satisfied that the allegation has been proved on the balance of probabilities until it has exercised the caution appropriate to the issue in the particular circumstances by a careful examination of the whole f the evidence. That the standard of proof remains the same was made clear by the NSW Court of Appeal in Palmer v Dolman [2005] NSWCA 361 when it summarised the position where fraud is sought to be inferred from circumstantial evidence: “the inquiry is simply, taking due account of what was said in Neat Holdings, has the allegation been proved on a balance of probabilities”. Similarly, in Qantas Airways Ltd v Gama (2008) 167 FCR 537, Branson J observed at [139] that the correct approach to the standard of proof in a civil proceeding under s 140 is, “adopting the language of the High Court in Neat Holdings”, one that recognises that “the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved.”
The apparent presumption in Neat Holdings that people “do not ordinarily engage in fraudulent or criminal conduct” has been said to permit a court to more readily make a finding that a party to civil proceedings has not been guilty of criminal or fraudulent conduct. However, the High Court in Henderson v Queensland (2014) 89 ALJR 162 challenged this presumption[9]. French CJ held, citing Neat Holdings, that:
The placement of the burden of proof is uncompromising and unable to be ameliorated by any “conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct”.
[9] And I refer to the discussion at 140.60 on this point in Odgers, opere citato, aka in the work cited and abbreviated as “op cit”.
Bell, Kiefel and Keane JJ held similarly; Bell J stating that:
… a presumption that individuals do not engage in criminal activity … is inconsistent with the allocation of the burden of proof.
I proceed on the basis that such a presumption, if it ever existed as a matter of law, is no longer an accurate description of the applicable test. However, I regard that at least common observation of human experience as one of many matters to be considered, but not as marking out or qualifying the burden of proof as set out in section 140.
I also accept the helpful description of the proper process for considering evidence of ownership of property as referred to by counsel for the Wife and as set out in Nolan v Lady Nolan and the Estate of Sir Sidney Nolan[10] (Nolan v Nolan [2004] VSCA 109) at [117] to [121] and it is useful to recite part of those passages.
[10]Nolan v Lady Nolan [2004] VSCA 109
Failure to consider whole evidence
117.We now turn to deal with the appellant’s contention that…her Honour failed to have regard to the whole of the evidence, or its cumulative effect, and instead analysed each document separately and in isolation from other relevant material...
…
120…in the civil and criminal law context, the evidence in question must be evaluated as a whole and that the object of the exercise in a case such as the present, where direct proof of the disposition contended for is not available, is to ascertain “whether the evidence paints a picture to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details.” Thus, it seems plain enough that, when a court is asked to infer a fact from various items of indirect evidence, it must consider the combined or cumulative effect of the evidence…
…
121Reference should also be made to the observation of Buchanan, J.A. (with whom Phillips, C.J. and Charles, J.A. agreed) in R. v. Huisman & Shiells that “the distinction between the evidence founding a chain of sequential reasoning and an accumulation of circumstances from which a fact may be inferred was explained metaphorically in Wigmore on Evidence, vol.9 para. 2487, as the distinction between links in a chain and strands in a cable. See Shepherd v. R.” and in R. v. Ng the Court of Appeal held: “It is the very essence of a circumstantial case that the items of evidence should not be examined in isolation, but must be considered in their totality.”
Reliability of parts of the parties’ evidence.
Both the Husband and Wife were influenced in giving their evidence by what they perceived would assist their case. Nonetheless, there were aspects of the Wife's evidence that markedly call into question her reliability, including the following matters[11].
[11] The following passages and my findings under this heading were not recited in the oral reasons.
Motor vehicle serial numbers mean a motor vehicle exists and not made available
A central part of the Wife’s case was the Husband’s dishonesty in not making “motor vehicles” available for valuation and inclusion in the pool of assets. The Husband asserted recorded numbers in the “register” included (whole) motor vehicles, wrecks of motor vehicles and also the numbers of merely parts of a motor vehicle and that a pile of parts and/or wrecks of motor vehicles had been made available and were inspected and valued. The Wife’s trial affidavit included paragraph 83 which was as follows:
83.I say that included in the [motor vehicles] not made available for valuation were the following […] numbers:
[List of motor vehicles]
At [86] the Wife opined:
I have been through the lists and worked out what I maintain the missing items are worth. I say that at auction they should achieve $152,000. This is based on my experience as a collector over the past 20 years and my involvement in the business.
That trial affidavit also included a poor copy (at page 201/2125[12] being part of MSC8[13]) of the receipt, dated 2006, from Mr L (a witness in the Husband’s case[14]) for purchase of “wreck parts and casings” with 10 items with casing numbers listed and “sold as is where is as scrap”. This receipt was also annexed to the Wife’s reply affidavit as Ms C-35 (page 933/2125) and also became exhibit W10. The receipt was annexed by the Wife as a genuine document. Casing numbers from that receipt were also recited as part of annexure MSC8 at page 202/2125 together with the words for each item “missing” and “not valued”. However annexures to the Wife’s affidavits that included text describing or commenting on the contents of the annexure. MSC8 at 201/2125 describes the receipt as:
This is a receipt that [Mr Carano] had put in. It shows the [motor vehicles] or wrecks what we have brought, and the serial numbers of those [motor vehicles].
(emphasis added)
[12] Meaning page 201 of the 2125 court book of documents.
[13] All annexures to all affidavits were tendered as exhibits with the exhibit number being the same as the annexure number.
[14] The Wife’s affidavits twice annexed the receipt as genuine and no attempt was made to discredit it when Mr L was cross examined.
Of the 25 motor vehicles of [83] recited above, 7 of those items[15], unequivocally described in [83] as “[Motor vehicles] not made available for valuation were the following [motor vehicle] numbers”, are the same serial number as the “parts and casings” described in Mr L’s receipt (put into evidence as genuine). Nine of the ten items of Mr L’s receipt also overlap with the “missing…not valued” items of page 202/2125.
[15] All letters refer to [83]: (j) 11793 is the 5th item of W10, (m) 20363 is the 7th item of W10, (n) 21317 is the 6th item of W10, (o) 7031564 is the 4th item of W10, (q) 8202547 is the 1st item of W10, (r) 7326552 is the 3rd item of W10, (s) 7326569 is the 2nd item of W10.
The reliability of the Wife’s opinions and observations was undermined by the circumstances of the unequivocal nature of the serious allegation of her case on this [83] point[16] when her evidence included the different position of the apparently genuine receipt of Mr L (“parts and casings”) of 7 of 25 of the [83] items and the (only apparent on a careful examination of the literally small print comment on page 201/2125) different position of “[motor vehicles] or wrecks”.
[16] Unequivocal as to both the serial number representing a “[motor vehicle]” and “not made available for inspection”.
X’s employment prospects
The Wife had deposed in her affidavit of 27 October 2023 that:
17 .54 As to the contents of paragraph 44:
[X] likes cooking and wants to be a chef.
But in cross-examination, she was asked about X’s employment prospects as an adult:
MS TAYLOR: What sort of job do you think he will be able to get in the future, if everything goes to plan?
MRS [CARANO]: I don’t know; it’s what [X] wants to do in the future.
MS TAYLOR: Well, does he have plans when he finishes school?
MRS [CARANO]: No, not really.
…
MS TAYLOR: Do you think he could work as a chef in the future?
MRS [CARANO]: I don’t know.
MS TAYLOR: Well, you know him; you live with him; he’s your son. Surely you would know the answer to that question. What do you think he will be capable of doing for work?
MRS [CARANO]: I don’t know.
…
Having made an assertion in her affidavit, the witness appeared to move away from her own evidence when questioned on a related point by counsel for her adversary in the case. The demeanour of the witness and the evidence on this point presented as unreliable.
Issue of Motor Vehicle 1 ownership
The Wife was also cross-examined regarding the issue of ownership of Motor Vehicle 1, which the Husband stated is owned by, or to be inherited by, the Wife, and which was referenced in correspondence from the Wife’s solicitors to the Husband’s solicitors.
MS TAYLOR: Do you have [Motor Vehicle 1]?
[MS CARANO]: No, I don’t.
MS TAYLOR: Does your mother own one?
[MS CARANO]: My mother does.
…
MS TAYLOR: Okay. Do you expect to receive the [motor vehicle] as a gift in the future?
[MS CARANO]: No.
MS TAYLOR: Upon the death of your mother?
[MS CARANO]: No.
MS TAYLOR: No? Are you sure? Okay. Well, there was a letter that was sent by [Mr Carano]’s lawyers to your lawyers,[17] … [in early] 2022, and under the heading, List of Items Removed By The Wife From The Real Property, included details of the [Motor Vehicle 1]. Do you recall that?
[17] Exhibit W5.
[MS CARANO]: Sorry?
…
MS TAYLOR: There was a letter sent from [Mr Carano]’s lawyers to your lawyers, [in early] 2022, and one of the things that was identified as removed from the property by you was a [Motor Vehicle 1]. Do you recall that letter?
[MS CARANO]: No, I don’t.
[Copy of letter handed to [Ms Carano] in the witness box]
…
HIS HONOUR: You read it, [Ms Carano].
[MS CARANO]: It says, “[Motor Vehicle 1] purchased by your client from her mother and” - - -
…
- - - “motor vehicle purchased by your client from her mother and stored at your – at your client’s mother’s house.”
MS TAYLOR: And do you recall that letter coming from [Mr Carano]’s lawyer?
[MS CARANO]: That one I do. Yes.
MS TAYLOR: Yes, and there’s a response, isn’t there, from your lawyers? Do you recall their response?
[MS CARANO]: Not really. No.
…
MS TAYLOR: - - - and this is a response from your lawyers [in early] 2022, and item number 5 says:
Our client is to receive this vehicle on her mother’s death. It was registered in her mother’s name until 2008. No funds have changed hands.
Your lawyers were acting on your instructions?
[MS CARANO]: Yes.
MS TAYLOR: Yes. So, what do you say now? Do you expect to receive that vehicle in the future?
[MS CARANO]:: There was talk that my eldest nephew was going to receive it if anything happens to mum.
MS TAYLOR: And that is not anywhere in your affidavit material?
[MS CARANO]: No.
MS TAYLOR: It is not in your mum’s affidavit material?
[MS CARANO]: No.
MS TAYLOR: Why not?
[MS CARANO]: Sorry?
MS TAYLOR: Why not? Why is it not in your affidavit?
[MS CARANO]: My nephew flew over from [City M] to see her recently…- - - and he asked for the car.
MS TAYLOR: What date did your nephew come over?
[MS CARANO]: [Late 2022].
MS TAYLOR: And so, you say since [late 2022], now your mum has changed her mind?
[MS CARANO]: Well, there was talk of it. I don’t know if she has told him he could have it or not. I don’t know. He could have it.
HIS HONOUR: Have you spoken to your mum about the vehicle?
[MS CARANO]: Sorry?
HIS HONOUR: Have you had a conversation with your mum about the vehicle?
[MS CARANO]: No.
HIS HONOUR: Surely you must have spoken to her about it. If it was promised to you at one point, as shown by this correspondence, surely you must have had a conversation about it?
[MS CARANO]: No.
HIS HONOUR: Well, why would you tell your lawyers to write a letter that says, “I’m going to receive it upon her death”? You must have had a conversation?
[MS CARANO]: Well, that was back then, when that letter was written.
…
MS TAYLOR: …One of the things that [Mr Carano] has sought was for that vehicle to be valued, hasn’t he?
[MS CARANO]: Sorry?
MS TAYLOR: [Mr Carano] sought for that vehicle to be valued. He wanted it valued, didn’t he?
[MS CARANO]: Yes.
MS TAYLOR: And you didn’t want it to be valued?
[MS CARANO]: Well, the court orders was, he had to provide proof that I owned it.
…
MS TAYLOR: And so now you say that the situation has changed, and your mother may have changed her mind about giving you that vehicle in the future, but you’re not sure. And what we’re left with, is no value being attributed to that car, right?
[MS CARANO]: Yes.
…
The demeanour of the witness and the evidence on this point, including the change of position from the solicitor’s letter presented as unreliable.
Issue of whether the Wife’s mother was terminally ill
In the Husband’s recently filed and served outline of case the Husband had asserted that the Wife’s interest in the estate of her terminally ill mother was a financial resource. In cross-examination, the Wife was questioned about the health of her mother.
MS TAYLOR: Did you tell the Court at the end of last year that she was terminally ill?
[MS CARANO]: I did.
[The Wife then went on to say that her mother had been misdiagnosed.]
MS TAYLOR: It would be unusual, wouldn’t it, to be 93, and terminally ill and not have a will?
[MS CARANO]: Well, she was misdiagnosed, but yes, you’re right.
…
MS TAYLOR: What has your mother been diagnosed with?
…
[MS CARANO]: Do you mean from the start? She was diagnosed with [a terminal illness], and it was a mistake. She – when she went in that night, they said that she had a [an injury], and they did testing on – on the next day, they informed me that they believed she had [a terminal illness]. Upon further testing, she doesn’t. She said she doesn’t have [a terminal illness]…
MS TAYLOR: Okay. And so, she’s not terminally ill?
[MS CARANO]: No.
I consider important the manner and time at which it was then asserted that the Wife’s mother was not, in fact, terminally ill. This bears against the reliability of the Wife’s evidence on this point.
Missing or broken devices and meta-data from images
Throughout the proceedings, images that had been taken or supplied by the Wife were referred to. When asked to provide soft copies of the images including meta data, or the devices used to take the images, the Wife either claimed she did not have copies, or that the device was missing or broken. Her demeanour when giving this evidence and her explanations did not sound reliable. This issue was discussed in relation to the items allegedly stolen from one of the sheds on the property.[18]
[18] The issue of missing or lost devices and meta data from images was also discussed in relation to images the Wife claims she retrieved from the Husband’s laptop, from p 250 of the transcript for 14 March 2024.
MS TAYLOR: Now, [Mr Carano] attaches to his affidavit photos of two… [motor vehicles]... Is that right?
[MS CARANO]: In that picture?
MS TAYLOR: Yes?
[MS CARANO]: I think it’s the same [motor vehicles].
MS TAYLOR: Well, those are photos taken by you, aren’t they?
[MS CARANO]: It’s actually video footage my daughter took.
MS TAYLOR: Okay. And when did she take that video footage?
[MS CARANO]: I believe it was a week or two weeks before separation.
MS TAYLOR: Before separation. Do you agree those photos look like they’ve been taken at night or that video looks like it has been taken at night?
[MS CARANO]: Well, I suppose with the doors closed you could say that. Yes.
…
MS TAYLOR: These photos appear to be taken at night in the dark shed, and I seek that the Wife produce the electronic document for these photos to confirm the time and date they were taken. Now, [Mr Carano] asked you to produce copies of these photos of the [motor vehicles] and the signs as well as the metadata that’s attached, didn’t he?
[MS CARANO]: Well, it says there in his writing. Yes.
MS TAYLOR: Yes, yes, he asked for it, and did you produce it?
[MS CARANO]: No.
MS TAYLOR: Why not?
[MS CARANO]: I don’t know. I just screenshotted the photos, and [Ms N] has the photos.
- - -
I can’t remember if they’re – I’ve downloaded a lot of the photos and printed them off and gave them to [Ms N] that way, and then I’ve deleted the photos as I haven’t needed them because they’re in photocopy.
MS TAYLOR: And so, what device do you say these photos were taken on?
[MS CARANO]: Sorry?
MS TAYLOR: What device do you say these were taken on?
[MS CARANO]: [Ms K]’s phone.
MS TAYLOR: Okay. You didn’t ask [Ms K] for a copy of the photos from her phone?
[MS CARANO]: No, and it won’t go on my phone.
…
MS TAYLOR: Did you ask – they were taken on [Ms K]’s phone, is what you said?
[MS CARANO]: Yes.
MS TAYLOR: And have you asked [Ms K] for a copy from her phone?
[MS CARANO]: I tried to download them onto my phone, and it wouldn’t work. [Ms K] now has a new phone.
…
MS TAYLOR: Yes. And so, you say those photos have now been deleted?
[MS CARANO]: Yes.
MS TAYLOR: Okay, from your phone. And what date did you take the screenshot?
HIS HONOUR: Hang on. Now deleted from your phone. What’s the answer to that question?
[MS CARANO]: Yes. I don’t remember.
MS TAYLOR: Well, do you have your phone here? Can you check?
[MS CARANO]: No, I have a new phone.
MS TAYLOR: You have a new phone as well. Okay?
[MS CARANO]: Well, its smashed. I dropped it and it smashed.
MS TAYLOR: See, what your lawyers say in the last few days leading up to this trial is they respond and they say:
Some of the photos requested not able to be retrieved, due to being deleted in the years they were taken.
But you’ve provided the images that you have access to. That’s what your lawyers say that are currently on the record?
[MS CARANO]: Yes.
MS TAYLOR: Yes. They don’t say your phone is broken, do they?
[MS CARANO]: Well, I didn’t tell them it was broken.
MS TAYLOR: Why not?
[MS CARANO]: I just told them what I thought they needed to know.
…
MS TAYLOR: Well, its not just that they’ve been deleted. Your evidence was that you now have a new phone and [Ms K] has a new phone, and you can’t access them?
[MS CARANO]: I had – some of those photos were on a USB. What I had, I supplied to [Mr Carano].
…
[MS CARANO]: Well, I said I had some saved. I don’t know why, but they were – I found them on the laptop.
…
MS TAYLOR: See, what I don’t understand, Ms [Carano], is this. These are crucial photos, aren’t they, to your case? You say that my client has taken these items and they’re missing and here’s the evidence that you’ve got that they existed. Why would you delete them?
[MS CARANO]: Well, Ms – well, again, I’ve supplied the photos to [my previous solicitor]. I just assumed she had them. She didn’t tell me not to delete them so - - -
The demeanour of the witness when asked and the inconsistency between her evidence and her solicitors letter combined meant that her evidence on this point presented as unreliable.
The Wife’s witnesses[19]
[19] The settled reasons include these paragraphs that were not read out in the oral reasons.
The Wife relied upon the affidavit of X’s paediatrician Dr O. He was cross examined. His evidence was helpful and I accept it. The Wife relied upon the affidavit of her niece, Ms P. She was not required for cross examination. Parts of her evidence corroborated the Wife’s evidence as to her support for the Husband’s medical needs. Parts corroborated the Wife’s homemaking and parenting contributions. I accept that evidence but it was not central to my assessment of that issue. Ms P visited the Husband and Wife weekly. It was not disputed Ms P was not interested in the farming machinery but she only saw the Husband’s father once or twice at the premises and she said the Husband referred to farming machinery as his. I accept her evidence so far as it goes. Her evidence as to the machinery was consistent with each parties case and did not assist me on this point.
The Wife’s mother, Ms Q was sought for cross examination but was not available due to ill health and the frailty of advanced age. Ms Q swore an affidavit months before the Wife told me (in 2023) that her mother had a terminal illness. The affidavit corroborated the Wife’s evidence as to the frequent but modest financial assistance she made to the family of the Husband and Wife over the years and the Wife’s significant role as homemaker and parent. I accepted that evidence as far as it went. Ms Q’s evidence does not address Motor Vehicle 1. Ms Q said, I infer on the occasions she visited, she saw Mr C Carano “regularly came out to the (farm) property late in the day”. Her evidence is consistent with the Husband and Wife’s cases. Her evidence was not able to be tested in cross examination but, in any event, did not significantly address the significant factual disputes about ownership of property other than by faint inference about her observations of Mr C Carano at the property. To the extent that her evidence carries the inference that she did not see Mr C Carano work on the farming machinery and hence carries the inference that he did not own the items the Husband said he did, I place little weight on that evidence and those inferences because the evidence was not able to be tested in cross examination.
Aspects of the Husband’s evidence
The Husband's desired outcome of the case also influenced his evidence, including his evidence in cross examination where he referred to ‘the register’ described later in these reasons as not containing the name of the owner, but only the ‘name’. The clear inference from the register is that the ‘name’ was intended to be the name of the owner of the item, at least in most cases.
No finding of ‘lying’
However, it is important to note that in this case where each of the Husband and the Wife accused the other of lying and bare faced lying and fraud, I am not satisfied on the balance of probabilities that either party has gone beyond the situation of assertively putting their case with aspects of unreliable evidence to the point of intentionally lying to me. And I refer to and acknowledge the authority of Blass at paragraphs 39 and 40 – because I have found aspects of evidence unreliable does not mean I have found that person to be lying or dishonest on that point.
THE PROCEEDINGS
The Wife issued proceedings on 5 October 2021, about six weeks after separation. At that time, the Husband had removed the entire balance of $105,000 from the parties’ joint bank account and the Wife sought that those funds be preserved for the parties. Along with these proceedings the Husband and Wife were both involved as applicant and respondent to intervention order proceedings in a local Court. By late 2021, about three months after separation, intervention orders had been taken out against both the Husband and the Wife for the protection of the other.
On the first return of these proceedings on 19 November 2021, in a circuit list, interim orders were made including orders that the $105,000 be paid into an interest-bearing account on trust for the Husband and Wife and that $40,000 of the funds to be held on trust be paid to the Wife as part property settlement. Further interim orders were made in this Court on 4 March 2022 and 6 May 2022, when the matter was first fixed for final hearing in August 2022. The Husband and Wife then had experienced local solicitors, and solicitors experienced in dealing with valuation of farm machinery and chattels. Orders were made for the retention of an expert valuation of the parties’ old farm machinery and plant and equipment by a single expert valuer.
The Farming Machinery valuation
The single expert valuer appointed by the parties attended the farm over three days, in mid‑2022 and provided the parties with an expert and detailed valuation of the many items of the farming machinery. The item numbers of that valuation served as a common reference point for the valuation and the revision that was asked to assume the Wife's allegations that certain items had previously been in running order or had been dismantled. The end result of that process is that all of the items valued, taken together, total some $679,000. If the Wife's allegations are made out in regard to dismantling the property between separation and valuation, a further $83,300 would be added to the value of the property. The expert valuation did not bundle up or categorise the different categories of property. Those categories were dealt with separately by the parties, making their own analysis of the single expert report.
Exhibit H1 was a helpful aide memoire (that I accepted into evidence over the objection of the Wife's counsel) that characterised items in six different categories, those categories being;
·items alleged to be jointly owned by Mr C Carano and Ms B Carano with the Husband;
·items alleged to be solely owned by Mr C Carano and Ms B Carano;
·items owned by the parties but in the Wife's possession;
·items owned by other people or described as belonging to third parties;
·items owned by the parties in the Husband's possession;
·and items in red font or highlighted in red, where the Wife alleges that the items were dismantled prior to valuation after separation.
That aide memoire was helpful. On the last day of the hearing, the Wife ultimately produced another aide memoire, being her reference to evidence in the same table, reproduced in the same colour coded form and I accepted that document as an aide memoire. I'm grateful to the parties for providing those documents.
PROPERTY ALTERATION
The applicable law
This property orders dispute falls to be determined by application of Part VIII of the Act and in particular the provisions of sections 79, 75(2) and 80 of the Act[20]. Section 79 reads:
[20] This legislation was not read out in the oral reasons but referred to as “the settled reasons will insert...”
Section 79 Alteration of property interests
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or
…
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d)an order requiring:
(i) either or both of the parties to the marriage;…
…
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
…
(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
By section 79(4)(e), the shopping list of largely prospective factors of section 75(2), that are the same factors to be considered when considering spousal maintenance, must be had regard to and the provision is as follows:
Section 75Matters to be taken into consideration in relation to spousal maintenance
(2) The matters to be so taken into account are:
(a) the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii)child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
…
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
…
(3)In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
(4) In this section:
"party" means a party to the marriage concerned.
The Court has wide powers as set out as section 80 of the Act:
Section 80 General Powers of Court
(1)The court, in exercising its powers under this Part, may do any or all of the following:
(a)order payment of a lump sum, whether in one amount or by instalments;
(b) order payment of a weekly, monthly, yearly or other periodic sum;
(ba)order that a specified transfer or settlement of property be made by way of maintenance for a party to a marriage;
(c)order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the court directs;
(d)order that any necessary deed or instrument be executed and that such documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;
(e) appoint or remove trustees;
(f)order that payments be made direct to a party to the marriage, to a trustee to be appointed or into court or to a public authority for the benefit of a party to the marriage;
(h)make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order;
(i) impose terms and conditions;
(j) make an order by consent;
(k)make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice; and
(l)subject to this Act and the applicable Rules of Court, make an order under this Part at any time before or after the making of a decree under another Part.
(2)The making of an order of a kind referred to in paragraph (1)(ba), or of any other order under this Part, in relation to the maintenance of a party to a marriage does not prevent a court from making a subsequent order in relation to the maintenance of the party.
Stanford
In the High Court of Australia case of Stanford v Stanford [2012] HCA 52; (2012) FLC 93‑518(‘Stanford’) the majority stated some fundamental propositions about section 79 proceedings.
The High Court varied the order of the Full Court and found that in the unusual circumstances of that case it was not just and equitable that a property settlement or property alteration order be made at all. This was so despite 37 years of marriage and contribution by one of the parties, the Wife. Hence section 79(4) contribution, even 37 years of it, was not to be conflated with the section 79(2) “just and equitable” requirement but should be considered separately.
The majority also observed at [42]:
[42]In many cases where an application is made for property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice by made by one or both of the parties, the husband and Wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and the Wife... Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
Stanford was not concerned with the nuts and bolts of how section 79(4) was to be applied in the ordinary run of cases, to the extent there is such a thing.
In addition to those considerations, each party here contends that it is just and equitable that I make section 79(4) property alteration orders. Because each contends for section 79 orders, I find that it is just and equitable to make property alteration orders in this case.
The preferred approach
In Keskin & Keskin and Anor (2019) FLC 93-932 (‘Keskin’) the Full Court, Strickland, Kent & Austin JJ, at [44] approved what was the age old and pre-Stanford “preferred approach” as to the how the nuts and bolts of section 79(4) fitted together as set out in Hickey and Hickey and the AG for the C’lth of Australia (2003) FLC 93-143 (‘Hickey’) at [39]. Hickey set out the preferred approach as follows:
[39] The case law reveals that there is a preferred approach to the determination of an application pursuant to the provisions of section 79. That approach involves four interrelated steps. Firstly, the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of hearing. Secondly the court should identify and assess the contributions of the parties within the meaning of section 79(4)(a), (b) & (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly the court should identify and assess the relevant matters referred to in section 79(4) (d), (e), (f) & (g) (“the other factors”) including, because of section 79(4), the matters referred to in section 75(2) so far as they are relevant and determine the adjustment study (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.
(Citations omitted and emphasis added)
I regard the use of “entitlement” in the above passage as intended to be synonymous with “assessment”. I will have regard to what I find to be the contribution-based assessment rather than entitlement.
The preferred approach assists me in making a principled and orderly determination of the parties’ property dispute.
APPLICATION OF THE PREFERRED APPROACH
Step one: identify the property and liabilities
I turn now to step one of the preferred approach.
Wife’s ‘pool’ of assets & liabilities
The Wife’s list of all assets and liabilities putting the position of each party, as she understood it, as to each asset was as follows:[21]
[21] From the Wife’s outline of case. The tables of assets were not read out in the oral reasons but referred to as “the settled reasons will insert”.
| Description | Ownership | Wife asserts | Husband asserts | |
| ASSETS | ||||
| 1 | Funds in D Law Firm Trust Account | Joint | $6,933 | $6,933 |
| 2 | Sundry plant and equipment at Town G property (joint valuation prepared by H Company dated mid-2022) Note: E$27,000 of this was sold by Husband as deposed in his Trial Affidavit at page 66. | Joint | $679,350 (of this amount the Wife values the item she seeks to retain at $218,525[22] | $431,524 |
| 3 | Joint valuation dated mid-2023 including the condition of equipment as asserted by the Wife in her affidavit filed 9 December 2022 | Joint | $83,000 | NIL |
| 4 | Farming machine in shed | Joint | $2,750 | $2.750 580,000 |
| 5 | Real property situated at Town G (joint valuation prepared early 2022, updated valuation prepared mid-2023) | Joint | $660,000 | $580,000 |
| 6 | Resource licence 1 | Respondent | $91,430 | $81,500 |
| 7 | Resource licence 2 | Respondent | $10,100 | $9,191 |
| 8 | Wife part settlement | Applicant | $40,000 | $40,000 |
| 9 | Husband part settlement | Respondent | $40,000 | $40,000 |
| 10 | Proceeds of sale of product | Respondent | $3,500 | $40,000 |
| 11 | Payment for work rendered before separation | Respondent | $1,700 | NIL |
| 12 | Funds removed from acc …55 post separation | Respondent | $10,432 | NIL |
| 13 | Cash retained | Respondent | $2,500 | NIL |
| 14 | R Company and S Company shares | Respondent | $1,500 | NIL |
| 15 | Foregone temporary resource sales | Respondent | $15,000 | NIL |
| 16 | Missing antiques & collectables | Respondent | $152,000 | NIL |
| 17 | Resource licence sold by the Applicant Husband as per the Respondent’s solicitor’s email on 8 March 2023 (Annexure A) | Respondent | $4,390 | NIL |
| Assets subtotal | $1,804,885 | $1,191,898 | ||
| LIABILITIES | ||||
| N/A | ||||
| SUPERANNUATION | ||||
| Fund | Type of interest | Applicant’s value | Respondent’s value | |
| The Husband’s super fund | Accumulation | $331,694.14 as of 28 February 2024 | $310,644 | |
| The Wife’s super fund | Accumulation | $5,600 | $5,600 | |
| Superannuation subtotal | $337,294.14 | $316,244 | ||
| TOTAL (assets – liabilities) | $1,804,885 | $1,191,898 | ||
| TOTAL (assets – liabilities + superannuation) | $2,142,179.14 | $1,508,142 | ||
[22] Previously $267,865 but as varied on Day 6 of hearing to $218,525 and the maths behind this figure were not controversial.
The Wife regarded the parties in those circumstances as having a pool of non-superannuation property of 1,804,885. The amount of superannuation was ultimately resolved by reference to independent documents.
The Husband’s ‘pool’ of assets and liabilities
The Husband’s list of all assets and liabilities putting the position of each party, as he understood it, moved closer to the Wife’s position on some items and was as follows:[23]
[23] From the Husband’s outline of case. The tables of assets were not read out in the oral reasons but referred to as “the settled reasons will insert”.
| Description | Ownership | Applicants value | Respondents value | |
| ASSETS | ||||
| 1 | Town G property | Husband | $660,000 | $660,000 |
| 2 | Resource licence – 1 and 2 | Husband | $101,530 | $97,280 |
| 3 | Carryover | Husband | $3,500 | NIL |
| 4 | Money in T Trust account | Joint | $6,933.07 | $,933.07 |
| 5 | Part property settlement | Wife | $40,000 | $40,000 |
| 6 | Part property settlement | Husband | $40,000 | $40,000 |
| 7 | Plant & Equipment owned by Husband in possession of Husband | Husband | $662,360 | $378,505 |
| 8 | Subtract Asset … Wife now concedes is owned by Ms AA | Ms AA | -$8,000 | NK |
| 9 | Husband’s share of Plant & Equipment jointly owned with his parents | Husband | NK | $29,285 |
| 10 | Chattels in possession of Wife inc Motor Vehicle 2 | Wife | $16,990 | $17,790 |
| 11 | Increased value of P&E if not dismantled by Husband | Husband | $83,300 | NIL |
| 12 | Farm machinery – in shed | Husband | $2,750 | $2.750 |
| 13 | Shares | Husband | $1,500 | $1,493.94 |
| 14 | Proceeds of sale of product | Husband | $3,500 | NIL |
| 15 | Funds removed from account post separation | Husband | $10,432 | NIL |
| 16 | Cash retained at separation | Husband | $2,500 | NIL |
| 17 | Sale of resource allocation x 2 years | Husband | $7,000 | NIL |
| 18 | Missing antiques, machinery & collectables in possession of Husband | Joint | $152,000 | NIL |
| 19 | Missing antiques, machinery & collectables in possession of Wife | Joint | NIL | NK |
| Assets subtotal | $1,784,295.07 | $1,274,037.01 | ||
| LIABILITIES | ||||
| Repairs required to Asset … (Motor Vehicle 2) | Husband | NIL | $10,000 | |
| Liabilities subtotal | $10,000 | |||
| SUPERANNUATION | ||||
| Fund | Type of interest | Applicant’s value | Respondent’s value | |
| The Husband’s super fund | Accumulation | $331,694 | $331,694 | |
| The Wife’s super fund | Accumulation | $5,916 | $5,916 | |
| Superannuation subtotal | $337,610 | |||
| TOTAL (assets – liabilities) | $1,784,295,07 | $1,264,037.01 | ||
| TOTAL (assets – liabilities + superannuation) | $2,121,905.07 | $1,601,647.01 | ||
| FINANCIAL RESOURCES | ||||
| Description | Ownership | Applicant’s value | Respondent’s value | |
| Wife’s interest in estate of her terminally ill mother Ms Q | Wife | NK | ||
| Financial resources subtotal | NK | |||
Further, the Wife's primary role within the marriage was the very onerous role of home-maker and parent to herself, the Husband, and the three children. Not only that, but the Wife also continued those duties whilst suffering miscarriages, and Ms K was a premature baby, which makes things even more difficult. Further, X, from about age three, has been noticed to have the symptoms of attention deficit disorder and autism spectrum disorder. I am satisfied that those matters have made the Wife's contribution significantly more difficult than what the Husband recognises.
To some extent, the Wife's hard work over many years in difficult circumstances has been and is invisible to the Husband.[39] However, within the home, contributions of a home-maker and parent are not invisible to the Family Law Act 1975, and have not been invisible in this country since 1975 when that Act passed. Those contributions must be recognised in a substantial and not a token way, and I will.
[39]Funder A, Wifedom. Penguin Books Australia. See discussion of the invisibility of women’s domestic work and support of male partners in the 1930’s.
The thrust of the authorities of the Full Court, which I endeavour to apply, is that all direct and indirect contributions, financial and non-financial, made long ago or made recently must be considered and had regard to in a holistic manner. I am assisted by statements of the Full Court, including in Dickons & Dickons [2012] FamCAFC 154 (‘Dickons’) at [24], Hurst & Hurst (2018) FLC 93-851 (‘Hurst’) at [23], Lovine & Connor and Anor (2012) FLC 93-515, [2012] FamCAFC 168 (‘Lovine & Connor’) at [40] to [42], and those passages are as follows.
Dickons
[24]There can be little doubt that the classification of contributions by reference to terms such as “initial contributions”, “contributions during the relationship”, and “post-separation contributions”, can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
…
Hurst
[23]The direct financial contribution of the Suburb C property by the husband some 14 years before trial is, of course, a significant direct financial contribution weighing in his favour (s 79(4)(a)) and her Honour correctly so found. But, as the authorities earlier cited make clear, a separate question within the assessment of contributions is, relevantly, the contributions made by both parties indirectly other than financially (s 79(4)(b)) and contributions to the welfare of the family including in the capacity of homemaker and parent (s 79(4)(c)).
…
Lovine & Connor
[40]Contribution, either direct or indirect and financial or non-financial, to any of acquisition and/or conservation and/or improvement to property (whether or not such property has ceased to be held) or to the welfare of the family or children, falls for consideration. No order of priority is attached to individual elements. The evaluation occurs often, as in this case, with respect to such disparate kinds of contribution made over a substantial period. Such evaluation, having regard to its subject matter, inevitably involves value judgments and matters of impression.
[41]It follows that the assessment involves matters of estimation and is not, and cannot be, a mathematical exercise. No amount of devotion to mathematics is capable of transforming a discretionary exercise involving many component parts, each mostly unamenable to precise computation, into one of aggregating separately finely calculated components to reach an overall outcome.
[42]As part of the process of ultimately determining just and equitable orders under s 79 there is included a complex of discretionary assessments and judgments of many components of contribution, only some of which are capable of measurement in money terms and then often only in historical, rather than present, money terms. Any dictate to the effect that in the course of assessment each disparate component part or kind of contribution must be assigned a discrete and identifiable value or percentage is antithetical to the nature of the discretion involved.
I am mindful of the Full Court’s observations in Dickons as recently restated in Benson & Drury [2020] FamCAFC 303, and a case dealing with a “Kennon” claim, the observations of the Court are apposite. Those observations include the following:
[35]… all contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one again the remainder.
[36]That principle has a counterpart in the application factors prescribed in section 75(2) or section 90SM(3) of the Act. Any adjustment to the parties contribution-based- entitlements should be determined inclusively after considering all relevant factors; not by aggregating incremental adjustment in respect of each relevant factor.
[Citations omitted]
Hence, I must avoid “the error of segmentation and the comparative of analysis of one feature of the evidence against all others”.
It is clear that the terms of section 79(4) require that I take into account all contributions within the terms of section 79(4)(a),(b) and (c) whenever they were made, and that it is an error to give greater or lesser weight to any particular type of contribution. However, a contribution is not to be disregarded merely because it was made long ago. Further, as stated in Wallis & Manning (2017) FLC 93-759 (‘Wallis & Manning’) at [105]:
The length of the marriage can be seen to be of considerable importance in the assessment of contributions.
The further matter that I take into account is the undisputed evidence that the state of the property following separation is such that it is of a lesser value than if it was properly presented. I take into account that that advantages the Husband to the extent that it reduces any payment that he would have to make. I have no evidence as to the extent to which that has reduced the value or the extent of the work or expense to bring the property up as to how it was. Those aspects are mainly matters of tidiness, cleanliness and bringing the garden back to where it was.
Post-separation, I take into account that the Wife has continued to be the sole home-maker and parent for X in the difficult circumstances of sharing a home with her mother and continuing to assist X in his difficulties. X attends an ordinary or everyday school and has the assistance of an aide. I take into account the Husband's failure to keep the property up as it was, as a matter to be taken into account in the contribution assessment or exercise. That is going to the quality of the contribution.
I am satisfied that over many years each of the parents made many different contributions: the Husband working in paid employment and long hours until overwhelmed by his depression illness, and then, when he was able to, working in collecting, maintaining, repairing and restoring farming machinery; the Wife assisting him in that endeavour when she had the time, and being otherwise involved in enthusiastically pursuing the duties of home-maker and parent, including with the difficulty that I have recited in regard to Ms K as a baby and X, and the Husband's significant depression. Each party asserts that contribution should be regarded as 45/55 in his or her favour. That is the equivalent of each party alleging that the first 10 per cent of contributions should be regarded as theirs and the balance fifty-fifty, or it could be regarded as in the proportions as one to one and a quarter. Each of the parties alleges they should be regarded as making roughly a quarter more contribution than the other.
As recited in discussion during the hearing, each of the parties can only be in one place at one time. If the Wife is involved in the home in the multitude of duties, including those invisible to many in society, she cannot be in another place of working in paid employment or helping the Husband in the shed. If the Husband is working away long hours in paid employment or tinkering in the shed when he is well enough to, he cannot be assisting the Wife in home‑making and parenting. Each of them can only be in one place at one time, and that is notwithstanding the necessary skill of multitasking involved in being a home-maker and parent, as usually falls to the female partner of any relationship.
The substantial initial contributions by the Husband are taken into account, but they are overwhelmed by the many years of contribution of both of the Husband and the Wife over many years. Those overwhelming contributions include the Wife's contribution and the Husband's contributions after separation, and the other aspects that make the Wife's contributions of a higher quality than otherwise as described above relating to the Husband's illness and X's circumstances.
The Wife's very onerous contributions as home-maker and parent were largely invisible to the Husband and once upon a time to the men of society.[40] In regards to contributions before, during, and after the separation, I am satisfied overall that both of these parents worked long and hard in different roles to the extent that they were able. That is so notwithstanding that in different ways each now regards the relationship as unhappy for significant periods. In those circumstances, I will regard and assess contribution as being roughly equal during the relationship up to this point in time.
[40] See discussion of the invisibility of domestic work and child care in Wifedom by Anna Funder referred to earlier.
Step three: section 75(2) factors
I now turn to step three, the section 75(2) factors. I refer to and repeat the long shopping list of factors set out in section 75(2) that was recited earlier in these reasons. The Husband seeks a five per cent adjustment his way and the Wife seeks a 10 per cent adjustment her way. I now turn to question 9 recited earlier, and the 75(2) factor chunk, and repeat those.
I have taken the Husband's failing to keep the farm in the condition it was during the relationship into account at the contribution stage, and hence will not double count by taking this into account at the section 75(2) factor stage.
Reasons for conclusion of question 9
I am satisfied that X's diagnosis and condition is more serious than the Husband appreciates. I accept the evidence of Dr O (who is X’s treating paediatrician), both his written and oral evidence.
However, I do not accept the Wife's case that X's diagnosis is so profound and will impact on her such that she does not have any capacity or opportunity for paid employment. I accept Dr O’s evidence, that from his perspective, with parents of ordinary or everyday ability and discipline, and a child of X's equivalent circumstances, that the parent and the single parent would be able in the future to engage in some part-time or full-time work.
I accept Dr BB's evidence as to the consequences for the Husband's future employment in regard to the Husband's depressive illness.
In his report at of 8 May 2023 at paragraph 4 and annexed to his affidavit of 25 July 2023, Dr BB asserted:
As such, it is in my opinion it will be devastating and has serious effect on [Mr Carano] mental health and wellbeing if he is unable to retain his farming property at [Town G].
Dr BB was also asked about this during cross examination.
MS TAYLOR: [Dr BB], you gave evidence that [Mr Carano] enjoys fixing and working on [motor vehicles] and machinery and that that has a therapeutic antidepressant effect for him. In your view, what would be the effect if he wasn’t able to continue to do that type of work?---
THE WITNESS: It would be devastating. He will relapse. His illness will be seriously affected, because that is how – his way of enjoying life, and that’s a hobby he had for years.
I note and accept Dr BB's evidence, and I note the open and helpful manner in which he gave evidence when cross-examined.
Reverse conundrum in this case.
The Husband's case is that during the relationship he suffered depression but not as extensively as asserted by the Wife, nor with the impact upon the Wife that she asserts. But he asserts that that condition, though less serious than the Wife asserts during their marriage, is such that it will likely prevent him from ever having any useful paid employment in the future, save for minimal income from tinkering with his machinery.
The Wife has the reverse of that conundrum. Her position is that the Husband's condition during the relationship was significantly more serious than the Husband has recognised, and made her contribution role more difficult, but now that the parties are separated, the Husband's condition is such that in the future he will be able to engage in paid employment.
75(2) factors to be considered
I take into account all of the section 75(2) factors. The Wife will have the responsibility of caring for 16 year old X, and that is likely to continue to some degree after he has attained 18 years of age. The Wife will have the responsibility of caring for 16-year-old X, and that is likely to continue to some degree after he has attained 18 years of age. She will have the assistance of the NDIS support, recently obtained, and the details of which were recently disclosed. The headline figure of $12,800 and some dollars needs to have some care when had regard to. Of that figure, only 60% of that will actually be spent directly on X in either psychological, speech therapy or occupational therapy treatments. Of course, the Wife will have to make sure that he gets there to those appointments. About 40% of that sum is paid to external agencies to “manage” that process. Nonetheless, the NDIS support is a significant section 75(2) factor to be taken into account, and, in part but not entirely, assists the Wife with the burden of caring for X.
The Wife receives a carers pension for the care of X and will continue to do so. That in part, but not entirely, eases the financial burden on her of the additional impact of caring for X with his circumstances.
The Husband has the care of Mr E, who is 18[41] years old and lives with him, and who is or will soon be an adult. The Husband has the care of Mr E, who is 18[42] years old and lives with him, and who is, or will soon be, an adult. In addition, the Wife supports the child Ms K at university, where it appears she is doing well, or at least there's no suggestion she's not achieving appropriately. In addition, the Wife supports the child, Ms K, at university, where it appears she is doing well, or at least there's no suggestion she's not achieving appropriately.
[41] Within the oral reasons Mr E was mistakenly portrayed as 17 years old
[42] Within the oral reasons Mr E was mistakenly portrayed as 17 years old
To make an adjustment for section 75(2) factors means that property is taken from one and advanced or given to the other. I must not only consider each parent's relevant factors, but both parents' relevant section 75(2) factors and balance those. The Husband's significant depression is a very significant factor to be taken into account.
Balancing all of those matters, I'm not satisfied that there should be a section 75(2) adjustment in either party's favour in all of the circumstances.
Step four: just and equitable conclusion
I now turn to step four and to questions 10 and 11, posed earlier.
Which of the parties should retain the farm?
I'm satisfied that it is just and equitable that the Husband has the opportunity to retain the farm. I acknowledge the Wife has contributed significantly to the farm over many years, and to all of the party's property over many years. Nonetheless, the Husband owned the land of the farm before marriage and has retained it since. I take into account Dr BB's evidence as to the impact and consequences of the Husband not having the opportunity to retain that farm. I acknowledge that the Wife will be profoundly disappointed in not being able to retain the farm. She will instead retain cash at its value as it is.
Although both parties are emotionally and psychologically attached to the farm and both have made a very considerable contribution to the farm, I consider that the Husband is more psychologically attached to it. I am not satisfied that the Husband has the intellectual or emotional wherewithal to get on with life without the opportunity to retain the farm. I am satisfied of the strength of the Wife's personality and that she does have the psychological and emotional wherewithal to get on with life without having that particular piece of property.
Which parties retain the farming machinery?
As to the items of farming machinery, I acknowledge the Wife has made a significant contribution to all of the property, including the farming machinery. The Wife will retain the items described in the outline of case. That includes property to the value of $17,790, and she will also retain the value of the further bundle, as set out in exhibit H3, as well as the resource licence. However, the Husband's devotion to and care of the farming machinery is considerably greater than the Wife’s.
The Wife's evidence in regard to items of machinery that were particularly important to her were in a very general sense of having made a contribution to all of the property, and in particular, Motor Vehicle 4 and Motor Vehicle 3. The Husband sold Motor Vehicle 3 without reference to the Wife. This was, at the least, discourteous. However, the proceeds of sale, which I accept are genuine, are included in the pool of assets on his side of the ledger. The Wife will retain Motor Vehicle 4, as she seeks, by agreement. Included in the bundle of assets the Wife seeks are two motor vehicles, along with other items. The Wife will be disappointed that she doesn't get all or most of the items that she seeks.
I am not satisfied that it is practical to divide the items up in the manner that is sought. I must take into account orders that will least likely promote further dispute and litigation and will best separate the financial interests of the parties. The items that the Wife seeks, and that the Husband agrees she should retain, can be readily ascertained and made available for her collection.
I am satisfied that to provide the other multitude of items as is required in the Wife's $218,000 bundle, will cause trouble and distress to the Husband and the Wife, friends, family, likely their solicitors, and likely the local Court with allegations and competing allegations of contraventions of intervention orders, and, indeed, likely cause trouble in this Court.
The most practical outcome is that the Wife retains the now agreed $33,600 further bundle of items, together with those items that she already has. I also take into account that many of the items are either a complete, or part of, an evolving complete collection of motor vehicles. To the Husband, having the collection or line of motor vehicles makes them more valuable to him, and he is intensely interested in the change or progression of one model of motor vehicle to the next, or with the same model of motor vehicle, the progression or changes made by the manufacturer from one time to the next.
I am also concerned that the Wife's approach to the $218,000 bundle may well pick the eyes out of the bundle of assets of those items. The Husband retaining those items will take the benefits and disadvantages of retaining those items at the value put on them. If sold, some items will achieve, or are likely to achieve, a bit more and some a bit less. The Husband will have the rough with the smooth of the majority of those items. I am not satisfied that it is necessary to break up the collection to do justice and equity in the division of property between the Husband and Wife.
The Wife's case for seeking what became of the $218,000 bundle only came about late in the proceedings, and arose after I had ordered that she set out a list of what items she sought to retain so that the Husband could ascertain what items he agreed with. Nonetheless, I regard her seeking those items as genuine. I am satisfied that in all of the circumstances of all of the evidence, it is just and equitable that the Husband retain the bulk of those items as I have set out.
Conclusion as to calculations
I now turn to the calculations. The non-super pool is $1,278,293, as set out in the table included in these reasons, and 50% of that is $639,146.50. That amount less the Wife's “keep” as set out above (including that set out in exhibit H3) that totals $191,653, means that the Husband will have to make a payment to the Wife of $447,493.50.[43]
[43] $1,278,293 at 50% = $639,146.50 less $191,653 leaves a payment of $447,493.50.
In this case, I am satisfied it is appropriate that the Husband have longer than the usual 120 days of time to make that payment. I am also satisfied that it is appropriate that in the event of default, rather than the property being sold forthwith, that the much longer than usual period of 120 days to prepare the property for sale should be ordered.
Clearing out machinery and presenting the property most advantageously for sale will take considerable time. No party pressed for further details in default orders in that regard and any such controversy or need for further orders would be machinery orders and not substantive orders under section 79. The settled orders will set out the property each party will retain and the payment required for the overall division of property, and I note that the parties will end up with half of the not insignificant amount of superannuation that they have put together.
The Husband will retain:
Description Value 1 Town G property $660,000 2 Resource licence- sought to be retained by Husband $8,200 3 Money in T Trust account (rounded) 4 Part property settlement (Wife) 5 Part property settlement (Husband) $40,000 6 Plant & Equipment owned by Husband in possession of Husband
$378,505[44] less that to be retained by Wife Annexure ‘A’- $33,600$344,905
7 Asset 178 Wife now concedes is owned by Ms AA NK 8 Husband’s Plant & Equipment jointly owned with his parents $29,285[45] 9 Increased value of P&E: Not included 10 Farming equipment– in shed $2,750 11 Shares (about) $1,500[46] Payment to the Wife ($447,493.50) Total to Husband $639,146.50 Superannuation Husband’s super’n $331,694 less payment split $162,889- $168,805 [44] I have relied upon the figure in the Husband’s outline of case that was not controversial as to the actual arithmetic.
[45] Ibidem (or as above)
[46] Accept Wife’s rounding not Husband’s figure of $1,493.94
The Wife will retain:
Description Value 1 Payment from Husband $447,493.50 2 Resource licence – 1 and 2 $93,330 3 Money in T Trust account (rounded) $6,933 4 Part property settlement $40,000 5 Annexure A Plant & Equipment to be retained by Wife $33,600 6 Chattels in possession of Wife inc Motor Vehicle 2 $17,790 Total to Wife $639,146.50 Superannuation Wife’s super’n $5,916 + $162,889 split $168,805 Mr E’s items
In regard to the application to Mr E's items, this was not addressed save for being pressed in an order in the Husband's outline of case. It was not disputed that the Wife has in her possession items that could or may be regarded as being Mr E's items. Some care has been taken on the Husband's part not to include those items in the items that the Wife would otherwise retain. I do not have satisfactory evidence that the Wife actually has all of those items, but it was not asserted that she did not.
In those circumstances, I am satisfied that the appropriate order should be that she make diligent search for the list of items as contained in annexure E, and, when located, make them available to the Husband's solicitors for collection by him, to be provided to Mr E.
Although not addressed at all, and not disputed, I am satisfied that I have the jurisdiction to deal with property orders in regard to Mr E's property, or what is described as Mr E's property, because of the provisions of section 79 of the Family Law Act and, in particular, the part of section 79(1)(d) that provides:
for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
I make that finding because of the reference to settling property of a child of the marriage. The decision of Dougherty[47] many years ago demonstrates that the child of the marriage in that section includes an adult child of the marriage. Because of the obligation on me under the Federal Circuit and Family Court of Australia Act (2021)[48] to deal with all of the controversies in the proceedings (notwithstanding that Mr E has turned 18), I am satisfied that it is appropriate and just and equitable to make that order.
[47] See the High Court of Australia in Dougherty and Dougherty v Dougherty (1987) FLC 91-823 (‘Dougherty’) at 76,194. I was satisfied the controversy arose from the matrimonial dispute between the child’s parents and that the child should be regarded as contributing to the conservation of those personal items.
[48] See section 139 recited in appendix 2.
I further am satisfied that the strict legal title of the items described as annexure E, as Mr E's, would vest in the Husband and the Wife. I am not satisfied that it is just and equitable to simply not deal with that item and leave that dispute as a festering sore to be pressed by the Husband on Mr E's behalf, or Mr E on his own behalf, and for those reasons I will make that order.
I am satisfied that the Wife will comply with orders that she make diligent search for those items, and it is appropriate to so order because the evidence does not satisfactorily demonstrate to me that the Wife has each and every one of those items.
Those are my reasons.
I certify that the preceding one hundred and seventy-one (171) numbered paragraphs are a true copy of the res tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 17 April 2024
APPENDIX 1
ASSET NUMBER MOTOR VEHICLE[49]
Valuation Report
Below are details from the Valuation Report with the original valuation of $500 and revised value of $1,000 if in condition as alleged by the Wife:
…
Allegations by Wife
The Wife has made the following allegations in relation to this asset in paragraph 6 of her Affidavit filed 9 December 2022: At separation this [motor vehicle] was intact. All parts, including the radiator were attached. The [motor vehicle] needed more work. At the time the valuer attended at the property all items around the engine had been removed and it looked like a complete wreck. The photo taken for the valuation…, shows that the [motor vehicle] was pulled apart. The pieces appear to be on the ground.
My response to Wife's allegations
This motor vehicle came from a property at Town EE. The family there had used this type of motor vehicle for many years. Dad & I had purchased some motor vehicles from this family beforehand, and this particular one was sitting in a paddock surrounded by bush on its own, in the current condition it is now, but didn't have any wheels on it or a front axle, and had the engine pulled apart and radiator and other parts etc all removed. There were 2 brothers that lived on the property and the brother that owned this motor vehicle wouldn't sell it in the past, but when the whole property was eventually sold, the remaining scrap metal laying around in old cars and machinery was cleaned up by a local scrap dealer at the time and he also got the motor vehicle, which when back at his scrap yard, I saw it and knowing him well and that I collected motor vehicles, sold it on to myself, I went back to the property it came from, & knowing one of the brothers that mostly owned the property, let me gather up a few remaining parts that were in an old shed belonging to this motor vehicle, that were removed from it years earlier, in poor condition, but still worth getting instead of being scrapped. It was not a complete motor vehicle or even close to complete when I bought it. This would be around late 1992 that this occurred, and the motor vehicle sat at my parents' farm until I built the shed on my property.
When I got the motor vehicle home to parents' farm initially, I fitted a set of wheels to it to enable it to be shifted around by towing it, supporting the front of another motor vehicle. Whilst sitting in my shed in its current location, it had a radiator just sitting on the front of the motor vehicle chassis, not bolted from underneath, & the motor vehicles bonnet on top with a rusted out fuel tank underneath the bonnet held in place with wire. The reason the old rusted fuel tank was put inside the underside of the bonnet is the rear support for the bonnet rests against the bottom of the fuel tank which the support is bolted to the top of the housing. The bonnet gave support at the other radiator end to help hold the radiator vertical in position and looked a bit better in the shed and had these larger parts off the shed floor…
(a further 9 pages of information is omitted)[49] Found at page 199 of the Husbands affidavit of 26 July 2023
ASSET NUMBER MOTOR VEHICLE[50]
Valuation Report
Below are details from the Valuation Report with the original valuation of $2,000 and revised value of $5,000 if in condition as alleged by the Wife:
…
Allegations by Wife
The Wife has made the following allegations in relation to this asset in paragraph 7 of her Affidavit filed 9 December 2022: When the valuer attended the property some of the panel work was missing. The motor vehicle at separation was in good running order a complete. It had not been started for at least 12 months, but all the parts were on the motor vehicle. Attached hereto and marked with the letters ‘MRC-4' is a photo of a similar motor vehicle taken from the internet. We had all the panels for this motor vehicle, the same as in the photo. There is a collector from overseas who has visited our property every 2 or 3 years just to look at this motor vehicle and hear it run. He has said that he wants to buy it and take it back to his country. It should be valued as 100% complete and in running order
My response to Wife's allegations
This motor vehicle is not in running condition. Below are pictures of the motor vehicle taken at different times from 1989 not long after first purchased until about 2002 approx as there is no concrete floor in shed in background. In all these pictures, it is evident that this motor vehicle was never complete with certain parts and also shows it has not got another part All these parts are extremely rare. You cannot buy these parts second hand even overseas. One part is available overseas without attachments fitted, just basically a shell for around $750.00 plus shipping. Then you need special material to purchase on top of that. Another item has to be hand made and are around $4000.00 for the pair plus shipping, expensive also due to weight. The correct radiator caps are special to this model only, and unless you can get someone to use theirs as a pattern and get one cast up for you, there is then still the closing mechanism to be fabricated and made up. Prices to acquire these parts are all reproductions a couple of years ago when the Aussie dollar was about 0.72 cent and overseas currency was just over $10,000.00 plus all the shipping cost on top. Unfortunately this motor vehicle never had those parts fitted when the previous owner bought it back in the day to use it. Dad and I certainly asked him at the time because of how unique they are to this model only and would be very lucky to find some in Australia. When this motor vehicle was purchased, it was half pulled apart sitting under a tree. The bonnet had been flattened out and used as a sheet of tin, the fuel tank was laying out in a paddock and various other parts lying in the dirt….[50] Page 211 of the Husbands Trial affidavit of 26 June 2023.
(proceeds for another page of information)
APPENDIX 2
Section 139 Determination of matter completely and finally
In every matter before the Federal Circuit and Family Court of Australia (Division 2), the Court must grant, either:(a) absolutely; or
(b) on such terms and conditions as the Court thinks just;
all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by a party in the matter, so that, as far as possible:
(c)all matters in controversy between the parties may be completely and finally determined; and
(d) all multiplicity of proceedings concerning any of those matters may be avoided.
14
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