CARRIE and APSLEY

[2018] FCWA 187

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: CARRIE and APSLEY [2018] FCWA 187

CORAM: THACKRAY CJ

HEARD: 3 & 4 SEPTEMBER 2018

DELIVERED : 28 SEPTEMBER 2018

FILE NO/S: PTW 5199 of 2005

BETWEEN: MS CARRIE

Applicant

AND

MR APSLEY

Respondent

Catchwords:

PROPERTY SETTLEMENT - De facto relationship - Just and equitable to make property orders - Held the husband’s known gambling losses should not be added back as the most likely source of money was income generated mainly after separation - Held not in the interests of justice for the party’s legal fees to be added back or deducted from the asset pool - Where the wife received compensation payments - Where the husband made greater initial contributions than the wife - Contributions assessed as having been made in proportions 57.5 per cent by the husband and 42.5 per cent by the wife - No adjustment made under s 205ZD(3) of the Family Court Act 1997 (WA).

Legislation:

Family Court Act 1997 (WA), s 205ZD(3), s 205ZG(1), s 205ZG(4)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr S
Respondent	:	Ms N

Solicitors:

Applicant	:	A Lawyers
Respondent	:	B Lawyers

Case(s) referred to in decision(s):

Hurst v Weber (2009) 233 FLR 337

Keehan and Keehan [2015] FamCAFC 122

Stanford v Stanford (2012) 247 CLR 108

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1[Ms Carrie] and [Mr Apsley] seek orders for division of property following the breakdown of their de facto relationship. Although they were not legally married, for convenience I will refer to them as “the wife” and “the husband”.

Background

2The wife is aged 51 and is a disability pensioner. She lives in rental accommodation in [Town A]. She was born in [City A], but was living in Perth when she met the husband.

3The husband is aged 55 and is self-employed. He now lives much of the time during the school terms in [Town B], but also spends time at the family home in [Street A], Town A (“[Property A]”). He comes from [Queensland], but was living in Perth when he met the wife. He moved to Town A permanently in 2001.

4The husband and wife commenced a relationship at some time in the 1990s, but did not cohabit until late 2000 when the wife went to live in Town A for a few months during which she became pregnant with their first child, [Alyce]. At the time, the wife was in a wheelchair recuperating from a serious accident in which she had been involved in 2000.

5The wife moved back to Perth prior to the arrival of Alyce, who was born [in] 2001. The husband continued living in Town A but came to Perth regularly to visit. Due to medical problems, the wife required help with Alyce and the husband met some of the cost.

6The wife and Alyce then moved to Town A in about September 2002. I am satisfied their de facto relationship commenced at that time. The husband had formally become the wife’s carer for Social Security purposes in August 2002, and, as a result, received a carer’s allowance until the parties separated in 2016. Initially, this obligation inhibited the husband’s capacity to undertake permanent paid employment as he was, inter alia, required to take the wife to her medical appointments and assist with work in the home.

7The parties’ second child, [Jane], was born [in] 2004. In September the following year, the family moved to Perth where they remained until December 2007. Although they lived in separate residences for much of this period, the husband continued to provide some care for the wife and children, although the wife also received additional help from other services. Notes made by representatives of one of those services suggest that the help the husband provided varied depending on the state of the relationship and that they also spent some time back in Town A during this period.

8The husband did not work while living in Perth from 2005 to 2007. I accept that he had insufficient funds to meet all of his expenses which included many of the outgoings on the two homes the parties kept for part of the time they were in Perth. During this time the husband borrowed a substantial amount from his brother, in the region of $100,000 – 110,000.

9In her trial affidavit, the wife said she would “like to know how [the husband] spent the amount of $100,000-$110,000”. The husband gave oral evidence that the monies were needed to meet a shortfall in living expenses including large mobile telephone bills run up by the wife. I accept this was a partial explanation. Although the husband claimed to be paying rent on two properties throughout the time he and the wife were not living together, I accept the wife’s evidence that at least when she was living in a property in [Suburb A] the only outgoing was for utilities, as rent was not charged for the home that was to be demolished.

10While denying he had ever borrowed to gamble, I do not accept that the husband’s gambling losses have occurred only since 2015. Although the evidence was flimsy and recognising that the inference was not put to him, I nevertheless consider it a reasonable inference even from the husband’s own evidence that some of the money he borrowed from his brother during the two years in Perth would have related to his long-term gambling habit.

11The purpose of the family moving to the city had been to allow the wife to focus on her claim for compensation arising out of the accident in 2000 and to have more treatment for her injuries. The family returned to Town A in late 2007 after the claim was settled and the parties had resolved differences that had led to their relationship breaking down while in Perth.

12The husband and wife thereafter lived at Property A until January 2016. The relationship was unhappy, and from about 2012 the husband slept in a caravan on the property. The wife claimed that from 2007 to 2012 the husband spent only between three and six months each year at Property A, as he often worked away and regularly went on “holidays, reunions and road trips”. The husband disputed this and I accepted his evidence. I note that the wife provided no corroborating evidence even though two of her witnesses were well placed to support her assertion.

13Following an incident between the wife and Alyce in January 2016, the husband obtained a Violence Restraining Order. Since then, the wife has lived in rental premises in Town A and the husband, initially at least, remained primarily living at Property A. Alyce commenced boarding in Town B when she started high school in 2015. She was joined by Jane in 2016. In order to avoid the girls having to board, in 2017 the husband bought a modest residence in Town B (“the Town B home”), while continuing to travel to Town A to oversee his business interests.

14A parenting dispute concerning the teenage daughters of the parties was resolved just before the trial. Pursuant to the terms of the orders, the husband has sole parental responsibility for the girls who will continue to live with him and only see the wife if they elect to do so. The children have not seen the wife since January 2016, although she has telephone communication with the eldest child.

Credibility

15I was not persuaded either party was an accurate historian. They had an acrimonious relationship and I gained the impression that each was strongly inclined to understate any contribution made by the other and overstate their own contributions. I am not suggesting either of them set out to mislead the Court as it seemed each had convinced themselves that their recollection was correct. However, I was far from satisfied at the end of the trial that I had a clear understanding of all that had occurred in the course of their relationship. Counsel for the husband was quite right in pointing out that “cross examination did little to clarify any of the matters in dispute in this case”.

16The wife’s evidence stands to be considered in light of her residual injuries and long‑term consumption of strong medication and marijuana. There is no reason to think these factors enhanced her ability to recall and process information accurately. Ultimately, I did not have confidence that all she said in her evidence could be relied upon.

17I was also not persuaded that I had been given the full “picture” by the husband, especially concerning his income and resources. At the very least, it seems he improperly claimed the cost of improvements to Property A as a deduction against his income. When the husband was asked to explain his stated low level of income at around the time of the extension to Property A he recalled that the cost had been offset against the income of the business on the basis that the new space was potentially an office space, although up to that point it had been spoken of as a family room and bedroom.

18Given the husband’s stated net income, no adequate explanation was forthcoming as to how in the last few years he was able to meet his living costs while at the same time losing around $116,000 in gambling and meeting all his legal bills.

19For these reasons, the facts as I have found them may only be a rough approximation of what actually transpired in the relationship. I was, however, assisted by the evidence of the witnesses who were not required for cross-examination, and also by [Ms C] and the husband’s brother, both of whom were cross-examined. I felt they generally endeavoured to give truthful evidence although I was not entirely sure that Ms C gave a complete answer about the sources of marijuana in Town A.

Orders sought by the wife

20The orders sought by the wife were set out in a Minute provided at the end of the trial. Overall, she seeks a division of assets in proportions 65:35 in her favour. She proposes:

•the husband retain all three pieces of real estate in which he has an interest (Property A, the Town B home and a jointly owned property at [Town C]);

•she retain her vehicle and other assets in her possession;

•she receive a number of other chattels and items in the husband’s possession;

•the husband indemnify her if she is required to repay any Social Security payments she has received in the period from 2002 until 2016; and

•other incidental orders which I will discuss later.

21The wife had proposed that monies in a scholarship fund be held on trust for the children’s educational needs. This proposal was omitted from her final Minute, but I gained the impression she nevertheless intended that the funds be used for the children.

Orders sought by the husband

22The orders sought by the husband were also set out in a Minute provided at the end of the trial. Overall, he seeks a division in proportions 65:35 in his favour. He seeks:

•he keep Property A and the Town B home and their contents (save for some of the items the wife seeks);

•he retain his vehicles and all the other assets in his possession;

•the Town C property be sold and the net proceeds be paid to the wife, with him to be responsible for the outgoings pending sale;

•he pay the wife, within 60 days of settlement of the sale of the Town C property, such amount as is required to give her 35 per cent of the assets, failing which he must sell Property A to provide the required funds;

•the wife retain her vehicle and all other assets in her possession; and

•he hold the scholarship funds on trust for the children’s education.

23The husband had originally proposed that the wife retain the Town C property and receive the scholarship funds as part of her settlement but, probably as a result of remarks I made during the trial, he had moved away from that position by the time the trial concluded.

Property settlement approach

24As the parties were never married, the proceedings fall to be determined under the provisions of the Family Court Act1997 (WA) (“the Act”). The wide discretion conferred by s 205ZG(1) of the Act to adjust property interests must be exercised in accordance with legal principle, and without assuming that the parties’ interests in the assets are or should be different from those determined by common law and equity: Stanford v Stanford (2012) 247 CLR 108 at [39]–[40]. In determining what orders will be just and equitable, a court will satisfy the legislative requirements if it does the following:

•identify and value the assets, resources and liabilities of the parties;

•assess each party’s contributions to the assets, including any assets which have ceased to be owned by the parties;

•assess the factors in s 205ZG(4)(d) to (g), which also pick up the long list of factors in s 205ZD(3) to the extent they are relevant; and

•consider whether the proposed orders are just and equitable.

25However, as Murphy J pointed out in Keehan & Keehan [2015] FamCAFC 122 at [118] (original emphasis):

The court’s power is not confined by any “steps” or “stages”, nor is it exhausted by reason of the consideration of any or all of the so-called “steps” or “stages”. Having without error determined that it is just and equitable to make some orders altering existing interests in property, and having considered the matters required to be considered by reason of s 79(4), the court has a “very wide” discretion to make such orders as are considered appropriate provided that any such order is just and equitable.

26The requirement for the court to be satisfied it is just and equitable to make orders adjusting existing property interests will be readily satisfied in most cases for reasons the High Court mentioned in Stanford at [42]. In the present matter, both parties agree that it would be just and equitable to make such orders. Clearly orders are needed to allow the parties to separate their financial affairs and get on with their lives.

The assets and liabilities

27I find that the parties have the following assets and liabilities.

Wife $	Husband $
Assets
[Property A]	295,000
[Town B home]	295,000
[Town C property]	57,500	57,500
[Vehicle A]	6,500
[Vehicle B]	3,200
Savings, shares and other minor items (roughly)	29,000
[Business A]	Nominal
Total assets	60,700	683,000
Liabilities
Various debts, excluding legal bills and disbursements (roughly)	10,000	9,700
Loan from brother	100,000
Home loan on the [Town B] home	207,000
Total liabilities	10,000	316,700
Net Assets	50,700	366,300

28The total of assets less liabilities is $417,000. In constructing the table, I have ignored some items of minor value. Otherwise the values of items in the table were largely agreed (save for Business A). The only findings I need to make are set out below.

Business A

29The husband commenced this business around the time he moved down to live in Town A. Its operations have been wound back in recent years as the husband is no longer able to undertake the physical work required. It operates from leased premises and there is no basis on which I could conclude that it has any value, save for the equipment used in the operation which I assume are amongst the items in the table above.

Household furniture and effects

30I have excluded the value of furniture given there ended up being some agreement about division of the items without there being any evidence about the value of what is to change hands. I recognise the likelihood that the husband is keeping more in value than the wife, but I recognise he also has the responsibility for housing the children.

31The affidavit of [Mr N] was not challenged. I therefore accept that the husband does not own the Public Address system.

Addback of gambling losses

32It became common ground that the husband had lost about $116,000 gambling since 2015. The wife argued that these monies should be “added back”. Each party kept their financial resources largely separate during the relationship and it was not established that the husband actually had $116,000 or anything like that amount at the time the parties separated. While the evidence is unclear, the most likely source of the gambling money was income generated by the husband through his business activities mainly after the separation. I do not propose to “addback” these funds but in looking at contributions I will take into account the fact that in just the last few years the husband wasted $116,000 of the money he earned.

Addback of assets

33The husband has disposed of some assets of relatively modest value since the parties separated. As he received payment for these, and as I have included in the table of assets various monies held by him in bank accounts, it would be inappropriate to add back the value of these items. I did not understand this issue to be strongly pressed in any event.

Legal fees

34According to the husband’s costs notification letter he has paid $32,633 in legal fees and valuation expenses. The husband says these were all paid from his income and there is no evidence to the contrary. It was expected that by the conclusion of the trial the husband would have expended a further $18,000. His legal fees largely relate to the property aspect of the dispute (as he was in receipt of legal aid in relation to the parenting matter and otherwise represented himself in that part of the proceedings). The husband is required to repay $1,905 plus a Landgate registration fee for the withdrawal of the caveat registered by Legal Aid over his interest in the property at Town C.

35The wife is indebted to her former solicitors ([AB Legal]) in an amount of $43,583. This debt is secured over the Town C property. The wife has been advised by her solicitors to expect that her costs to the end of the trial would be in the region of a further $40,000. The costs she has incurred covered both the parenting and property proceedings, but there is no evidence to help determine the breakdown between the two sets of proceedings. The wife will be required to pay $1,574 plus a Landgate registration fee for the withdrawal of the caveat registered by Legal Aid over her interest in the property at Town C.

36I am not persuaded it is in the interests of justice in the circumstances of this case for the husband’s paid legal fees to be added back into the asset “pool” or for the parties’ liabilities relating to legal fees to be deducted from the value of the assets. The Act provides that each party should generally meet their own costs. As Warnick and Boland JJ said in Hurst v Weber (2009) 233 FLR 337 at [34], the various ways in which the court attempts to deal with the issue of legal fees are “designed to avoid one party effectively bearing a proportion of the other party’s legal costs”. There will be opportunity after judgment is delivered for the parties to determine whether or not to seek an order for costs against the other party. I may have taken a different approach in the event that I was persuaded that the husband had paid his legal costs from monies that were available to him at the time the parties separated or if the wife had been making any contribution to the assets or to the welfare of the family in the period after separation.

The scholarship funds

37The husband originally sought to include in the “asset pool” an amount said to be the value of the [scholarship funds] for the girls. These scholarship funds were set up initially with a lump sum payment made by the wife from her compensation entitlements. The husband paid half‑yearly contributions into the funds for each of the girls with the last payment of $668 being made in 2014 for Alyce and $721 paid in 2016 for Jane. The wife also claimed to have made annual contributions to the scholarship funds. To date, the parties have received about $4,487 back from the fund. The unchallenged evidence is that the wife has received all the payments since January 2016 although it is unclear whether any funds were paid prior to that date.

38The evidence as to how these funds could be accessed and in what circumstances was unclear. Obviously the funds were set up with a view to meeting costs associated with the girls’ education and in my view it would be proper for that intention to be realised. Although the girls are presently being educated, the evidence suggested that part of the funds could not be accessed until such time as they commenced some other form of education.

39I propose not to include the scholarship funds in the “asset pool” but rather to make an order along the lines proposed by the husband. He will continue to hold the scholarship monies on trust for the girls. Making him solely responsible for the funds will hopefully ensure there is no dispute between the parties about the modest amount of money involved.

Contributions

40In dealing with the parties’ contributions I will set out first the findings that can be made regarding specific items of property.

Property A

41The husband purchased the block at Street A in 1992 for $16,000, funded with a bank loan which has subsequently been paid out. In 1998, he commenced constructing what was originally a two bedroom home on the property. He was living in Perth at the time and travelled to Town A from time to time to undertake the work. He did not borrow any additional money for the purpose and did most of the building himself. The home, although habitable, was far from finished at the time the parties commenced their de facto relationship. The husband’s own witness described it as a “shell”, as did the wife. After the wife received a compensation payment in 2006, she used about $20,000 of the money to meet the costs of plastering and painting the home. The husband did some more plastering and painted the bedrooms, but most of the work was done by contractors.

42In 2013, the husband arranged, as an owner builder, an extension to Property A comprising a family room and an additional bedroom. The cost was about $70,000. The husband organised the subcontractors, but did some work himself as described at [212] of his trial affidavit. The home has still not been finished. For example, some of the wet areas need tiling, flooring and painting. The valuer describes the property as providing “a somewhat basic level of accommodation with a rustic appearance”. The block is heavily bushed – in other words little has been done to “improve” the grounds, which “have a poor presentation” according to the valuer.

Drive B, Suburb B

43In October 1995, the husband purchased a half interest in a vacant block of land in [Drive B], [Suburb B]. The other half interest was held by his business partner.

44The property cost $60,000. The wife’s contention that the husband owed $30,000 on the property was not contested, which would suggest he borrowed all of the cost of his share. In any event, in January 2004 the other half-owner sold his share to the husband’s cousin and his wife for $45,000. Then, in June 2006, the entire property was sold for $425,000. No explanation was forthcoming in the evidence (albeit none was sought) for how the property increased in value so astronomically in the period it was owned. I was told in submissions that the husband was fortunate to have sold at the top of the market before the “GFC” struck.

45The husband ended up receiving about $150,000 net on sale of the Suburb B block. This would suggest that he had secured other borrowings on the property apart from the original loan of $30,000 but there was no evidence about this either. In any event, the husband used his share of the proceeds to repay his brother about $100,000 – $110,000 being the money lent while the family was living in Perth, even though the brother did not expect to be repaid. The husband recalls that there was a Capital Gains Tax liability upon sale but no evidence was given as to the amount or how it was paid. It presumably would have been a significant amount given the size of the gain. I accept that this obligation may have been factored into the husband’s recollection that he cleared $150,000 on sale, even though the CGT debt would not have crystallised until he lodged his next tax return.

46The wife asserts that when the husband could not afford to make the monthly loan repayments on the Suburb B property, she would give him $300 to cover them, but she did not seek to quantify the total amount that she paid. The husband accepts that the wife occasionally paid some money towards the loan on the Suburb B property.

Town C property

47In 2007, the husband and wife purchased a vacant industrial block of land at Town C at a cost of $10,000 using monies received from the wife’s compensation payment. During 2009/2010 the parties built a shed on the block at a cost of at least $106,000, with the husband being the owner builder. I accept that the husband undertook the work as described in [217] of his trial affidavit. After completion, the shed was rented at $330 per month.

48The wife claimed, and she was not challenged, that the husband as owner builder failed to obtain the necessary approval for building the shed and that the Shire threatened to pull it down. The wife gave evidence of having meetings with Shire officers ending in a negotiated outcome that the shed did not need to be pulled down. I accept her evidence.

49The Town C property has been vacant since the middle of 2017 when the tenant left. The husband has been meeting all outgoings since January 2016 although the wife had the benefit of the modest rent up until the tenant left.

50The tenant made an offer to purchase the property for $110,000 including GST in December 2016, but the offer was withdrawn in April 2017. The wife was not willing to sell at the price offered, which was somewhat less than the valuation. In closing, counsel for the husband said it was not proposed that there be any deduction in the event the property sold for less than the amount previously offered but she submitted, in effect, that the wife’s refusal to go ahead with the sale means she has only herself to blame if she has no ready money until such time as the property is sold (assuming orders are made as the husband proposes).

Town B Home

51The husband acquired his home in Town B in September 2017 for $295,000. He borrowed $215,500 from a bank and a further $100,000 from his brother to cover the balance of the purchase price, stamp duty and costs. The husband has since painted the interior and tidied up the property but I do not take this into account since the home has been valued for the purposes of these proceedings by reference only to the purchase price. The husband acquired the home in order to have accommodation in Town B so the girls no longer have to board. The home loan repayments are about $500 per fortnight.

52The acquisition of this property has effectively reduced the value of assets to be divided since the amount now owing on the two loans is $12,000 more than the agreed value of the property.

Wife’s compensation payments

53The wife had two accidents in 1986 and a third in 2000. She is unsure of how much compensation she received for the first two accidents but believes it was about $80,000 – $90,000. In about May 2006, the wife received a damages payment of about $170,000 gross for her accident in 2000. The payment comprised:

•general damages – $70,000;

•travelling expenses – $5,000;

•future medical expenses – $45,000; and

•gratuitous service allowance for carer – $50,000.

54From the damages, an HIC deduction of $3,761 was made, along with $9,021 for legal fees and reimbursements. The net amount was therefore $157,216. The husband accepts the following amounts were paid from the damages:

•$10,000 toward the block at Town C;

•$18,000 to purchase Vehicle B;

•at least $20,000 towards work on Property A;

•purchase of some furniture; and

•$13,000 placed in the scholarship fund for the children.

55Although the husband was unable to account for the balance of the compensation monies, I accept that the wife used:

•$12,000 in payment of outstanding medical debts;

•$20,000 to repay a loan for funds to cover her living costs pending receipt of her compensation payment;

•$16,940 to purchase a [Club] membership (which does not feature in the current list of assets);

•$6,830 to purchase educational products for the girls;

•an amount (perhaps as much as $27,000) on furniture for Property A.

56I accept that the balance of the money would have been spent on general costs of living and otherwise for the benefit of the family. I am not persuaded that the wife spent money on her marijuana use while living with the husband. A more likely explanation is the one she gave, namely that the husband grew and supplied marijuana. I hasten to add that the quality of the evidence was such as to make it inappropriate to find as a fact that this is actually what occurred, given the husband’s denial and the lack of corroboration.

Initial contributions

57The husband claimed he had $200,000 in assets at the time the de facto relationship commenced. He says this was made up of:

•Property A, which he claims was worth $130,000. There was no evidence to support this estimate, which the wife disputes, given that the block had cost only $16,000 and the dwelling was only a “shell”. What is known is that the property is now worth $295,000 but there is no evidence to establish to what extent the value of the property was increased by the improvements made to the property during the relationship.

•the half interest in the property at Drive B, Suburb B, which the husband claims was worth $100,000. Again the wife challenges the estimate, noting that the entire property cost $60,000 in October 1995 and that the husband’s business partner sold his half interest in the property for $45,000 in January 2004. That sale would suggest the husband’s half interest in the property would have been worth not more than $45,000 in 2002 when the parties commenced their de facto relationship; of significance however is the fact that without any improvements being made to the property, it increased very greatly in value prior to its sale.

•motor vehicles, chattels and the husband’s business all of which he accepts were of nominal value.

58It appears not to be in dispute that there was a liability of about $30,000 relating to the Suburb B property at the time the de facto relationship commenced. The amount owing on Property A at the time is not known.

59The husband claims that at the commencement of the de facto relationship the wife had only a car and her disability allowance. I accept she also had furniture and appliances. There is no evidence that the wife had any of her original compensation money left. The wife says her father was repaying her $95 per week in discharge of a $27,000 loan made to him from her damages; however, she did not say how much of the $27,000 had been repaid prior to the parties commencing their de facto relationship.

Contributions during the relationship

60The wife did not have paid employment during the relationship. She claimed that she had significant responsibility for running Business A in the husband’s absence, but I was not persuaded that the contribution was as extensive as she attempted to make out in her trial affidavit.

61The wife was in regular receipt of the disability pension which I accept she expended on meeting household expenses, which were also funded with Family Tax Benefit payments to which the parties were entitled. The wife asserted that the pension payment “averaged approximately $485 per fortnight”. I accept that the wife’s status as a pensioner entitled the family to a number of financial rebates and discounts on services and utilities.

62The husband worked at various stages although there were lengthy periods when he did not work. He worked in the business [providing services]. He undertook a variety of other types of employment, including landscaping and horticultural activities on a contract basis for local groups, businesses and instrumentalities. In the later years of the relationship he had a substantial gross income, but it is unclear how much he really netted after payment of wages and expenses. He appears to have dealt at times in cash money (for example in paying the wages of Ms C). The husband disclosed only a modest taxable in the last few years. Overall, it was impossible to determine how much the husband actually earned.

63The husband was in receipt of a carer’s payment throughout the relationship. This income was mingled with other income coming into the home in order to meet expenses. The wife claims the husband spent his income on “gambling, cars, overseas and interstate holidays, camping equipment, [comics] and music equipment”. While I accept that the husband spent some of his income on his own pursuits, I also accept his income was expended on purposes that were for the benefit of the family as a whole as outlined at [11] of his supplementary trial affidavit. It is unclear to what extent the husband’s income was wasted on gambling but there is no reason to assume his earlier years of gambling were any more successful than those over the last few years.

64The wife says the husband has supplemented his income by cultivating and selling marijuana. She said with some conviction that all of her marijuana needs were supplied by him and that she had no other source of marijuana in Town A. The husband denies the allegation. Given the state of the evidence, I am not prepared to make a positive finding but I am by no means prepared to rule out the possibility that the allegations are true.

65The husband claims he was the primary carer of the girls since they were born as well as being the wife’s carer since August 2002. The wife claims that she was the girls’ primary carer. It was very difficult to make any reliable finding in relation to the sharing of household duties and child caring. It is apparent that both parties contributed to some extent, but I accept that the wife led a somewhat nocturnal existence, going to bed in the early hours of the morning and remaining there well into the day unless she had a meeting or some other commitment. The husband cooked almost all of the evening meals and attended to the children’s needs in the mornings. He also took the girls to almost all of their sporting events and training, which often involved travelling long distances, given the isolation of Town A. I accept that the wife did more work in caring for the children in the period when they were all living in Perth, although the evidence was unclear as to precisely what help the husband provided. Not all the slack was taken up by the wife however since she needed assistance from her mother and various agencies who provided regular services.

66I accept that the wife was often aggressive (perhaps as a result of her injuries) and that the husband’s contributions in assisting around the home were made more difficult as a result. I accept that the wife consumed marijuana regularly but I am not persuaded that she drank as much alcohol as the husband suggested. I accept that the husband probably spent quite a lot of time on the computer following his interest in horses and gambling, but not as much time as the wife asserted. Similarly, I am not persuaded that the husband drank as much as the wife asserted.

67Overall, I was not persuaded by the husband’s claim that he undertook as much as 80 per cent of the housework. I accept that he did a lot around the home but I think it is likely the wife did more of the work than he was prepared to acknowledge. I do accept that he was generally the “mainstay” in that he was there to do the routine jobs, especially with the children, that always needed doing and the wife assisted to the extent her health and inclination permitted. This varied from time to time. For example, in 2012 she [was diagnosed with various medical conditions] . This would have been very debilitating and would have impacted on her ability to help around the home.

68I accept that the wife undertook significant work in arranging things for the children including laying out school clothing and the other tasks described at [95] of her trial affidavit. She was also heavily involved in the children’s school and the local community, and did her share of the shopping, both locally and in Town B.

Contributions after the separation

69The wife has not worked since the separation and has largely supported herself from her disability pension. She received the Family Tax Benefit payments from January to May 2016. She also received some modest amounts from the scholarship funds and withdrew $12,320 from savings in accounts held in the girls’ names. In addition to receiving monies from the scholarship funds, the wife has had the benefit of $4,967 from the parties’ joint bank account that was funded with deposits by the husband. She also received the rent on the shed at Town C until the end of March 2017. The husband has also paid her mobile phone account, but she has otherwise received no support from the husband. The wife has made no contribution to the welfare of the family since separation as she has not spent any time with the children, although she has kept up some communication with Alyce.

70The husband has continued to work since separation, but the only year in which he disclosed having an income above $21,000 was in 2017 when he said he earned $50,929. He has also been entirely responsible for the care and support of the two children since the separation. Alyce lived in a residential college in Town B from 2015 – 2017, while Jane lived there during 2016 and 2017. The husband’s care of the children would therefore have been restricted to the times they spent away from the boarding house. He has met all the expenses for the children including $7,250 for Alyce’s [medical] treatment. He has received the Family Tax Benefits and other government support for the girls’ education.

71The husband has also received funds from his brother over the last few years apart from the $100,000 loaned to assist with the purchase of the Town B home in 2017. His brother paid him $6,000 in 2015, $33,500 in 2016, an additional $19,000 in 2017 and $20,000 in 2018. No explanation was given in the evidence of either the husband or his brother about any of these payments but counsel for the husband advised that her instructions were that the money not needed to acquire the Town B house had not been used and had been repaid.

Overall assessment of contributions

72The husband asserts that his contributions should be assessed at somewhere between 57.5 per cent and 62.5 per cent. The wife assets her contributions should be assessed at between 55 per cent and 60 per cent. Her counsel advised that this was based upon the assumption that all of the various addbacks proposed by the wife were included in “the pool” (i.e. the gambling losses, the assets sold and the paid legal fees).

73Doing the best I can with the evidence, I have decided that contributions should be assessed as having been made in proportions 57.5 per cent by the husband and 42.5 per cent by the wife. I place particular weight on the contribution of the properties at Street A and Suburb B, while not overlooking the significance of the wife’s damages payment. In taking into account the Suburb B property I acknowledge the proceeds of sale were used to repay the money advanced by the husband’s brother, but also recognise that the money from the brother was used in part to fund joint expenses. I place emphasis also on the husband’s income earning activity and his work in caring for the wife, the home and the children, both before and after the separation. His support of the wife and children in Perth from 2005 to 2007, limited as it may have been at times, also needs to be considered in assessing the significance of the damages claim, as does the fact that a not insignificant proportion of the claim related to an allowance for the husband as the carer and for the reimbursement of expenses. I also take into account the fact that the husband wasted a lot of money on gambling, and that there were times when the wife was looking after the children while the husband was not living in the home with them.

Section 205ZD(3) and other factors

74The assessment of contributions, if not adjusted, will leave the husband with more of the assets than the wife will receive. The husband seeks an adjustment of between 5 – 10 per cent in his favour “as he has sole responsibility for the children and the net value of the pool of assets is modest”. The wife seeks an adjustment of 5 – 10 per cent in her favour “in light of her significant financial contributions and in light of her limited future earnings”. The fact the pool of assets is of modest value has, of course, only indirect relevance to s 205ZD(3) and the wife’s “significant financial contributions” have already been considered.

75The wife is 51 years old. She has many ongoing health issues as described at [108] of her trial affidavit. She was lucky to survive a cardiac arrest [in] 2015, but there was no evidence of her life expectancy. She has been on a disability pension for a very long time and there is no suggestion she has any capacity to work. Her pension entitlement is $918 a fortnight. I accept it is very difficult for her to meet her expenses from her income.

76The husband is aged 55 years. He has lower back pain associated with damage to his spinal discs, which limits his capacity to engage in physical labour. He is awaiting an appointment with a neurosurgeon, but the wife accepts that he has “ongoing back problems”. The husband has some entrepreneurial ability and is likely to continue to earn income by gaining contracts and engaging others to undertake the required work on his behalf. His current [services] contract with the local Shire is due to end in mid-2019 but may be extended. He has had a similar contract with the Shire since 2013. He estimates his current income from the business at $1,000 per week. He also sometimes lets a space in Property A at a rent of $150 per week although it is not approved for accommodation purposes. I am not sure it is rented as infrequently as the husband asserted.

77The husband has full financial responsibility for the two girls who continue to attend [Town B Senior High School], where they are in years 11 and 9. Given the nature of the girls’ relationships with the wife, it is likely the husband will continue to have full responsibility for them in the future. The wife does not pay child support and will not do so in future. The husband is in receipt of Family Tax Benefits in an amount of $464 per fortnight. He also receives an Education Supplement of $480 per fortnight for the girls as they are unable to attend school in Town A. The supplement is only a little less than the $500 per fortnight which the husband pays on the loan on his home in Town B.

78Neither of the parties has re-partnered and neither has responsibility to support any other person. They have been accustomed to living a modest lifestyle and there is insufficient income and property available for distribution to provide them with anything other than a similarly modest lifestyle in future. It is not suggested either party wishes to undertake a course of training or education. Neither party has contributed to the earning capacity of the other. The relationship impacted on the husband’s capacity to earn a living, especially when the children were younger, as he had responsibilities for the care of the wife and children. The relationship did not impact on the wife’s capacity to earn a living as there is no suggestion she would have been able to work even if she did not have the children.

79The husband denies that he has any significant or regular income from Business A. The wife claims that he is paid in cash for a number of his income earning activities including from sale of marijuana, that he does not disclose his entire income for tax purposes and that he routinely pays for goods and services using cash. I have already stated I am not sure I have the full picture concerning the husband’s finances. Putting to one side the possibility he might earn income from growing marijuana, I have the impression the husband would be able to earn a good enough income to support himself and the girls at a decent but modest standard, especially if he would refrain from gambling.

80Overall, I consider the various factors I have discussed effectively cancel each other out. In particular, I take account of the fact that the wife’s financial prospects are poor, especially when regard is had to the legal fees she will undoubtedly be required to meet in relation to the parenting dispute. The husband’s prospects are somewhat better, but he has full responsibility for the children and will continue to do so for a number of years.

Just and equitable?

81The final stage of the process of property adjustment is to step back and consider whether the overall outcome (i.e. a division of assets 57.5 per cent to the husband and 42.5 per cent to the wife) is just and equitable, having regard to the findings made concerning contributions and the s 205ZD(3) adjustment. The outcome I propose involves the wife receiving a payment of $69,025 from the husband as well as the net proceeds of sale of the Town C property which hopefully will be in the region of $115,000 gross. After allowing for her vehicle and her debts (which exclude her legal fees) the wife will receive assets worth $177,225 net and the husband will have $239,775. I consider this to be just and equitable.

Orders

82I need to provide brief reasons for some of the orders I propose to make.

•I recognise there is a possibility Property A will need to be sold for the wife to receive what I regard as her entitlement. I recognise also that this may be upsetting for the girls who still regard it as their primary home.

•The wife has the duplicate Certificate of Title for Property A in her possession and the husband seeks its delivery to him. This is appropriate in circumstances where the wife no longer lives at the property, does not seek to retain it and has a caveat registered against the title.

•I propose to make an injunction making clear that the husband is permitted to borrow against Property A in order to pay the wife her entitlements under the proposed orders, but not otherwise.

•The parties need to sign the necessary documents to separate their telephone accounts.

•The husband has agreed to deliver up some chattels to the wife. Although she sought more, there was nothing in the evidence that would support the making of an order for her to receive more than the husband agreed to give.

•For the reasons advanced by the husband’s solicitor in argument, I do not propose to make the order sought by the wife relating to possible repayment of social security entitlements.

83These reasons will be provided to the parties’ solicitors at least 24 hours before the formal delivery of judgment. Subject to hearing further from counsel at that time, I propose to make the following orders:

1.Within 90 days the husband, [MR APSLEY], pay the wife, [MS CARRIE], the sum of $69,025 (“the balancing amount”), such sum to be paid into the trust account of the solicitors who represented the wife at trial.

2.Contemporaneously with payment of the balancing amount the wife shall cause her solicitors to hand to the husband’s solicitors a Withdrawal of Caveat [A] in registrable form together with the Landgate lodgement fee for the Withdrawal of Caveat [A].

3.In the event the husband fails to pay the balancing amount within 90 days, then the husband and wife shall be appointed as trustees for sale of the property at [Street A] [Town A] (“[Property A]”), and the proceeds of sale shall be disbursed as follows:

(a)in payment of the agent’s commission and costs of sale and in adjustment of rates and taxes;

(b)the balance to be divided between the husband and the wife so as to bring about a division of assets (by reference to the table of assets and liabilities set out in the reasons for judgment) in proportions 57.5 per cent to the husband and 42.5 percent to the wife.

4.At the time of settlement of the sale contemplated by Order 3, the wife cause the Withdrawal of Caveat [A] registered against the title to [Property A].

5.The husband and the wife forthwith do all acts and things and sign all necessary documents to effect a sale of the [Town C property].

6.Upon settlement of the sale of [the Town C property] the proceeds be applied as follows:

(a)to pay all costs, commissions and expenses of sale and to pay any council and water rates outstanding in respect of [the Town C property]; and

(b)to pay the balance to the wife.

7.Prior to or contemporaneously with settlement of the sale of [the Town C property] the husband cause the withdrawal of Caveat [B] registered by Legal Aid WA against the title to [the Town C property].

8.Prior to or contemporaneously with settlement of the sale of [the Town C property] the wife cause the withdrawal of Caveat [C] registered by Legal Aid WA against the title to [the Town C property].

9.Prior to or contemporaneously with settlement of the sale of [the Town C property] the wife cause the withdrawal of Caveat [D] registered by [AB Legal] against the title to [the Town C property].

10.There be liberty to both parties to apply in relation to the terms and conditions of sale of [the Town C property].

11.In the event that [the Town C property] is let pending its sale, the rental monies shall be applied as follows:

(a)in payment of outgoings on the said property; and

(b)in payment of the balance to the wife.

12.Subject to the preceding order, and pending settlement of the sale of [the Town C property], the husband be responsible for and indemnify the wife with respect to outgoings on the said property.

13.In the event the net proceeds of sale of [the Town C property] (i.e. the gross price less the agent’s commission and any other costs of sale agreed in writing by the husband and wife) are less than $115,000 the husband pay the wife 42.5 per cent of that shortfall.

14.In the event the net proceeds of sale of [the Town C property] (i.e. the gross price less the agent’s commission and any other costs of sale agreed in writing by the husband and wife) are more than $115,000 the wife pay the husband 57.5 per cent of that excess.

15.Within 28 days of the date of these orders the wife shall hand to the husband’s solicitors the following:

(a)duplicate Certificate of Title for [Property A];

(b)current Australian passports for the children, [ALYCE] born [in] 2001 and [JANE] born [in] 2004;

(c)Birth certificates for the children;

(d)[Alyce]’s mobile phone;

(e)the husband’s original birth certificate;

(f)other personal documents and financial documents relating to the husband.

16.The wife and the husband do all acts and sign all documents necessary to transfer into the husband’s name the [scholarship funds] and the husband shall hold them in trust for the children on the basis that such funds are to be used for the benefit of the children’s education.

17.Within 28 days of the date of the orders the parties do all acts and things and sign all necessary documents to effect separation of the wife’s mobile telephone, Internet and BigPond services from the husband’s Telstra Account.

18.Subject to the orders above, any interest the wife may have in [Property A] shall vest in the husband and the husband be responsible for and indemnify the wife for all encumbrances and outgoings for [Property A].

19.The husband shall retain [the Town B home].

20.Within 28 days of the date of the orders the husband deliver to an address in [Town A] nominated by the wife:

(a)the dining table and 8 dining chairs and matching covers;

(b)day bed;

(c)2 x filing cabinets;

(d)footstools;

(e)steam mop and accessories;

(f)wall art x 2;

(g)artwork;

(h)[musical instrument];

(i)stool;

(j)white trestle table; and

(k)such personal property of the wife listed in Attachment 1 to these orders as the husband is able to locate.

21.That any interest the wife may have in:

(a)the home contents currently in the possession of the husband other than the items referred to in the previous paragraph;

(b)musical equipment;

(c)caravan;

(d)trailer;

(e)motor vehicles registered in the husband’s name;

(f)any bank accounts in the husband’s sole name;

(g)any superannuation accrued or accruing to the husband’s benefit

forthwith vest in the husband.

22.That any interest the husband may have in:

(a)the home contents currently in the possession of the wife;

(b)[Vehicle B] registered in the wife’s name;

(c)any bank accounts in the wife’s sole name;

(d)any superannuation accrued or accruing to the wife’s benefit

forthwith vest in the wife.

23.Unless otherwise specified:

(a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders;

(b)insurance policies remain the sole property of the named owner; and

(c)each party be solely liable for and indemnify the other against any liability in their sole name encumbering any item of property to which that party is entitled pursuant to these orders.

24.Save for the purpose of complying with Order 1, until further order the husband is restrained and an injunction is granted restraining him from borrowing further funds on the security of [the] Mortgage registered against the title to [Property A] or from otherwise encumbering [Property A] until the wife has received her entitlement pursuant to Order 1 or Order 3(b) as the case may be.

25.The application and response be otherwise dismissed.

Costs

84I will hear from counsel about any applications for costs at the same time as these reasons are formally delivered. As the hearing will be by telephone, any offers of settlement to be relied upon should be provided in advance to my chambers.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM

ASSOCIATE

28 SEPTEMBER 2018