CASEY & CASEY

[2016] FCCA 1998

FEDERAL CIRCUIT COURT OF AUSTRALIA

CASEY & CASEY [2016] FCCA 1998

Catchwords:
FAMILY LAW – Property dispute – around 20 years cohabitation – husband made greater initial contribution – wife has greater needs – wife’s poor health – husband has greater income earning capacity – wife unlikely to earn a significant income, unlike the husband – wife has overwhelming needs.

Legislation:

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

Cases cited:

Stanford v Stanford (2012) 87 ALJR 74

Jewel v Jewel [2013] FCWA 81

Applicant: MS CASEY

Respondent: MR CASEY

File Number: MLC 1756 of 2015

Judgment of: Judge Curtain

Hearing dates: 30 and 31 May 2016

Date of Last Submission: 31 May 2016

Delivered at: Melbourne

Delivered on: 15 August 2016

ORDERS

1. The net proceeds from the sale of the former matrimonial home of $327,052 plus interest, less the interim payment of $90,000 to the parties, leaving $237,052 plus interest be distributed as follows:

   (a)60% to the wife plus $2,750 from the husband’s share for unpaid costs; and

   (b)40% to the husband less $2,750 to be paid to the wife for the outstanding costs.

2. The husband have the sole title and interest in the Mazda and Daihatsu motor vehicles and all tools currently in his possession.

3. The wife have the sole title and interest in the Suzuki motor vehicle currently in her possession.

4. The wife have the sole right and title in the chattels including all photographs in her possession or control, save for:

   (a)Z’s television;

   (b)The bar refrigerator;

   (c)2 televisions not required by the wife;

   (d)The outdoor timber setting;

   (e)The “daughter’s” desk;

   (f)The beach wind break; and

   (g)The table and chairs

   currently located in storage, under the control of the wife, to be collected by the husband’s agent (in the absence of the husband) on a day and time agreed to by the parties.

5. The wife shall at her earliest convenience attend a business that creates copy photographs and shall:

   (a)obtain a written quote for reproduction of family photographs in her possession;

   (b)forward the quote to the husband who shall pay same within 21 days of receipt if he wishes to have the copy photographs and advise the wife accordingly; and

   (c)the wife shall then obtain the copy reproductions and forward them to the husband.

6. The husband is hereby restrained from obtaining, removing or possessing any original family photographs that are currently in the possession of the wife and are her property pursuant to these orders.

7. That 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) in the possession of such party as at the date of these orders;

   (b)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

   (c)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1756 of 2015

MS CASEY

Applicant

And

MR CASEY

Respondent

REASONS FOR JUDGMENT

Background

1. The applicant wife Ms Casey was born on (omitted) 1974 and is aged 41 years. She would not disclose her address because she alleged she may suffer further family violence at the hands of the husband. She has poor health, suffering from depression.

2. The husband Mr Casey was born on (omitted) 1969 and is aged 47 years. He was formally trained and worked in the (omitted) industry until mid-2000 when the wife had an “emotional breakdown”. Thereafter he left his employment and was caring for the children and the wife when she was ill. The wife had regular stable health from around 2005 until recently, when she was hospitalised apparently due to the stress of these and other proceedings.

3. The parties were married on (omitted) 1994 being the 20^th birthday of the wife. The husband was then aged 25 years. At the time of their marriage the husband was the sole registered proprietor of land and improvements situate at Property G which he had purchased in May of 1994. He paid a deposit of $45,000 plus stamp duty and borrowed the balance of around $65,000 by way of a mortgage loan. It was subsequently transferred into the parties’ joint names in September, 1995.

4. The parties have three children, as follows:

   a)X born (omitted) 1996 aged 20 years;

   b)Y born (omitted) 1997 aged 18 years; and

   c)Z born (omitted) 1999 aged 16 years.

5. It is common ground that from marriage in 1994 to mid-2000 the husband was employed outside the home whilst the wife was the homemaker and primary carer. She cared for X following her birth in 1996, Y following her birth in 1997 and then Z in (omitted) 1999; the wife was the primary carer of three children then aged under four years by mid-2000 when she had what is colloquially known as “a breakdown”. She was suffering from depression to the extent that the then Department of Human Services intervened and removed the children temporarily from her care. To the husband’s credit he resigned from his employment and became their carer together with overseeing the wife when she was ill. She was placed on a Disability Benefit and he obtained the Carer’s Pension.

6. Thereafter the husband never returned to full time employment. The evidence discloses that by 2005 or thereabouts the wife’s health was stable but she did require to be medicated to ensure she could function properly as a parent and a person. It appears that during the next few years both parents were involved in the care of the children but I note that the husband from time to time took on employment as a casual (occupation omitted) which indicates to me that the wife was well enough to free him for this and to allow her to care for the children without the need for assistance or oversight.  

7. The parties separated under one roof on 3 December 2014 and the husband physically left the former matrimonial home on 30 December 2014 after the wife obtained an Intervention Order.

The evidence

A. Applicant wife’s material:

a)An Outline of Case filed 24 May 2016;

b)Amended Initiating Application filed 23 May 2016;

c)The Applicant wife’s affidavit sworn 4 March 2015 and filed 5 March 2015;

d)The Applicant wife’s Affidavit sworn 10 March 2015 and filed 12 March 2015;

e)Affidavit sworn by Ms M on 1 April 2015 and filed 1 April 2015;

f)The Applicant wife’s Affidavit sworn and filed 4 November 2015;

g)The Applicant Wife’s Affidavit sworn 23 May 2016 and filed 24 May 2016; and

h)Amended Financial Statement sworn 23 May 2016 and filed 24 May 2016.

B. Respondent husband’s material:

a)An Outline of Case filed 27 May 2016;

b)Response to Initiating Application filed on 26 May 2016 ;

c)Affidavit of the Respondent husband sworn and filed on 4 June 2015;

d)Affidavit sworn 18 May 2016 and filed 19 May 2016; and

e)Financial Statement sworn and filed 6 May 2016.

The applicant’s evidence

1. Whilst the wife filed a number of affidavits which detailed her case, there was no expert evidence called to detail the current circumstances of her depressive illness. There was no prognosis in terms of her future capacity to care for herself and seek employment. It was common ground that she suffered a serious depressive episode in 2000 and she did not undertake any work outside the home save for a brief period in 1997 when she helped her uncle in a (omitted) business. I note that this was before her “breakdown.” I will comment further on her work capacity and health.

2. She presented as being very anxious and in fact at one stage I was so troubled by her nervous style of speech in the witness box I had the following conversation with her:

   Can I – can I just stop you there.  You’ve got an interesting style of speaking?‑‑‑Yes.

   You go “ah” a lot –Is that just something that you ‑ ‑ ‑?‑‑‑No.  This because of all – it’s the stress.

   Is it?‑‑‑Yes.

   If you were stress-free, you wouldn’t speak like that?‑‑‑Not as bad.

3. I accept that her unusual speech impairment was a physical representation of her anxiety. I was satisfied that when she gave evidence that she tried to give the best detail she could. I felt she was truthful, although her memory of some events was hazy.

The respondent’s evidence

1. The respondent husband also relied on affidavits setting out his allegations. After hearing his evidence and observing him in the witness box and in the court over two days, I formed the view that he was seeking to make a very good impression of himself and sometimes told me what he thought I should hear rather than the probable truth.

2. Where the evidence of the husband and the wife came into conflict, I preferred the evidence of the wife.

Approach to property proceedings

1. There is a general approach to hearing property applications that has been established over time by the decisions in this area by the Full Court of the Family Court of Australia. This in part was recently refined following the High Court decision of Stanford v Stanford (2012) 87 ALJR 74.

2. I adopt the approach detailed by the Honourable Justice Walters at paragraph 72 of his decision in Jewel v Jewel [2013] FCWA 81 which in my view summarises well the steps required when applying the Family Law Act 1975 (Cth) he said:

   72. Assuming a step-based approach to the determination of an application brought pursuant to the provisions of FLA s 79 is still appropriate, it is arguable that the effect of the High Court’s decision in Stanford is as follows:

   a) The first “step” in the property settlement exercise is to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in their property.

   b) The second “step” involves ascertaining whether it is just and equitable to make an order altering the interests of the parties in their property. In most cases – relevantly, where the parties have separated and are no longer living in a marital relationship – the underlying assumptions that the parties had to the effect that the existing property ownership arrangements were functional (or perhaps irrelevant) and could be varied by agreement between them, no longer apply. That fact alone should ordinarily persuade the court that it is just and equitable to make orders altering the parties’ interests in their property. It is only after the Court has concluded that it is just and equitable to make such orders that it should proceed to take what might be regarded as the third and fourth steps.

   c) In the third “step”, the court should identify and assess the contributions of the parties within the meaning of ss 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties.

   d) In the fourth “step”, the court should identify and assess the relevant matters referred to in ss 79(4)(d), (e), (f) and (g), including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established as a consequence of the previous step.

   e) Finally, the court should consider the effect of the various findings and assessments it has made and make such orders as it considers are just and equitable in all the circumstances. As I have recorded above, my view is that this process does not amount to an opportunity to make a further adjustment; it is an opportunity for the judicial officer to determine finally how, in reality, just and equitable orders might be achieved having regard to all the circumstances of the case.

The pool

Assets

ASSETS

Asset

Value determined on the evidence

(rounded to nearest dollar)

a)           Net proceeds from sale of former matrimonial home

$ 327,052.00  plus interest

b)           Husband’s Mazda motor vehicle

$1,750.00 (c)

c)           Husband’s Daihatsu motor vehicle

$1,500.00 (c)

d)           Wife’s Suzuki motor vehicle

$9,050.00 (c)

e)           Husband’s tools

$NK

Liabilities

LIABILITY

Liability

Agreed

(rounded to nearest dollar)

f)           Credit card

$1,427.00*

g)           Electricity account

$400.00*

h)           Husband’s unpaid legal costs orders

$2,750

SUPERANNUATION

Superannuation

Agreed value (currently)

(rounded to nearest dollar)

i)           Husband’s superannuation

$1,076.00 (as at 30 June 2015)

j)           Wife’s superannuation

NONE

* During the hearing these two debts were found to have been paid and therefore the parties consequently did not seek orders in relation to same.

Section 79(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.

1. Both parties seek a different division of the major asset, being the net proceeds of sale of the former matrimonial home. It is therefore, in my view, just and equitable that these proceedings were commenced and further that there is a hearing to determine an appropriate outcome between competing proposals.

Contributions

Section 79(4)(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

1. The wife conceded in cross-examination that the former matrimonial home was purchased by the husband in his sole name some months before cohabitation. He paid $45,000 deposit, being the proceeds of a claim in relation to a car accident. He also paid the stamp duty on the purchase.

2. He says that he borrowed the balance of $65,000 by way of a mortgage loan in his sole name. The wife could not challenge this and said …“I’m not sure how much the mortgage was because he had control of all its money”…

3. The former matrimonial home is the major asset of the parties and the wife lived in that property from marriage until it was recently sold. She brought no significant assets into the marriage.

4. From late 1994 to mid-2000, the husband worked outside the home when he was employed full-time as an (occupation omitted). Thereafter, he was in receipt of the Carer’s Pension or Benefit, plus some unstated income he received when he worked part-time or casually on some occasions.

5. The wife never worked outside the home, save for a short period assisting her uncle in 1997 and otherwise was on a Disability Benefit from 2000 and post-separation.

6. It appears that the husband was the money-manager for the family. The wife gave unchallenged evidence that he banked not only his pension but also the wife’s and he alleged he used those monies for their mutual benefit. The wife said some monies were used otherwise. However, given the wife had no evidence to support her claim, in my view, the evidence on balance showed that their income was generally used to benefit the family unit. Clearly the husband made the far greater contribution under this sub-heading.

Section 79(4)(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

1. There was little evidence on this topic. The wife claimed in cross-examination she was the person who did the bulk of the home duties but also conceded she would only be able to perform tasks when feeling well; when ill, the husband undertook those jobs. However, there is no or little evidence about the frequency of this.

2. She said that by 2005, or thereabouts, her health was stable and she was therefore free to undertake the home duties role.

3. Therefore I find that from marriage in 1994 to mid-2000 and from around 2005 to separation in 2014, the wife undertook the bulk of the household chores.

4. The evidence also shows that the husband did some improvements around the home in terms of some renovations and undertaking painting. Both parties appeared to maintain the garden and other outside areas.

5. Overall, it would appear that their contributions under this subheading were similar but favour the wife.

Section 79(4)(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

1. In my view, the evidence disclosed that the wife was the primary carer of the children and also primary home-maker and parent subject to her health. There were clear periods where her health was poor which required the husband to undertake the abovementioned roles. In my assessment of the evidence from marriage in late 1994 to mid-2000 when the wife had her breakdown, she clearly was the primary homemaker and parent as the husband worked full time outside the home and they had 3 children in 1996, 1997 and 1999 which must have been challenging for the wife when the husband was absent.

2. From mid-2000 to mid-2005 she clearly was often unwell with depression and the husband contributed as carer of the children and the wife. From mid-2005 the evidence discloses she was stable and probably again the primary homemaker and parent until separation in 2014. It was during this period that from time to time the husband returned to casual employment as a (occupation omitted) which would suggest to me that the mother’s health was then stable.

Section 79(4)(d) the effect of any proposed order upon the earning capacity of either party to the marriage

1. Pursuant to the order, the husband will be in funds to undertake a course or courses which should improve his income-earning capacity in the future. In my view, the mother has a very limited working capacity (if any) and any order is unlikely to improve her earning capacity given her poor mental health.

Section 79(4)(e) the matters referred to in subsection 75(2) so far as they are relevant

(a) the age and state of health of each of the parties

1. The husband is aged 46 years and complained of some anxiety and depression; however I do not accept, that if it did exist, it was so severe that it affected his income-earning capacity. There was no medical evidence at all called to support his allegation, nor was it common ground between the parties that he suffered from any form of depression or anxiety as it was with the wife’s condition. It is my view, given his age that his state of health is adequate for him to be in the workforce for up to the next 20 years. This is in contrast to the wife, who is 41 years old and who in my view has very poor health and is very unlikely to find any regular, stable employment. I had the following conversation with her at one stage when giving evidence:

   You said earlier in your evidence that with your depression, from time to time the husband had to care for you when it was really bad.  How often was it really bad, perhaps around 2000?‑‑‑2000?

   The year 2000.  That was the time that DHS moved in and removed the children because your depression was at its worst, I gather?‑‑‑Yes.

   You then subsequently saw a psychiatrist and you were given medication ‑ ‑ ‑?‑‑‑Yes.

   …

   Do you take medication now?‑‑‑Yes, I do.

   What is it?‑‑‑They’ve changed it.  Olanzapine.

   How often do you take it?‑‑‑I have to take it every day.

   …

   You take half a tablet in the morning and that’s the only medication you’re on?‑‑‑Yes.

   All right.  And what does it do to you?‑‑‑It calms your – my anxiety.

   All right?‑‑‑It calms me down.

   All right.  Okay?‑‑‑They haven’t gave me a whole heap.  They only gave me a couple to see how I cope with court.

   …

   Do you suffer now from depressive episodes?‑‑‑Yes, I do.  With him dragging courts all the time, yes.

   …

   Apart from that, can you function normally?‑‑‑Lately, no, because I had – the doctor has come out and seen me a couple of times last week.

   …

   You can look after yourself?  You can cook, clean and do all of those household tasks?‑‑‑Yes.  But – yes, mental health have been calling me to see how I’ve been going.

   …

   Now, when there are no court proceedings, say last year, you’re functioning all right.  You’re stable on your medication, is that correct?‑‑‑I was still feeling depressed.

   Okay.  But you still would be able to function and work at those times, is that correct?‑‑‑No.

   …

   What counsel is basically putting to you is say 12 months ahead, 2017.  Say there’s no court going on.  Do you think you could apply for and hold down a job?‑‑‑I don’t know with him because he has always got something coming up in court.  So I don’t know.

   Counsel for the husband:

   MR LEVINE:   Let me put it to you this way.  If it isn’t for any stresses, you should be able to hold down a job.  Do you agree with that?‑‑‑I don’t know because my depression goes up and down so I don’t know.

(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

1. As indicated above, the husband has an income-earning capacity which possibly could be exercised for up to 20 years. He conceded in the witness box that he had been offered an (employment omitted) job that paid $80,000 per year but said he “…could not get due to false criminal convictions made against me”… by the applicant. To my mind, this showed that there was work available for him to undertake and I accept that he could work again in the (omitted) industry as well as a (occupation omitted), which he said he did during cohabitation.

2. The evidence is clear in relation to the wife that she has very poor capacity to obtain any appropriate, gainful employment. She presents poorly, has no formal training or relevant work experience save as a (occupation omitted) and suffers from a long-term depressive illness.

3. I explored her capacity with her when in the witness box as follows:

   At what stage did you leave school?‑‑‑I think year 10.

   Year 10.  How old were you?‑‑‑I was 16 going on 17.

   Did you finish year 10?‑‑‑Halfway through.

   …

   …how did you go at school?‑‑‑Fighting all the time, yeah.

   I gather you weren’t a particularly good student?‑‑‑No.

   And I gather you didn’t have a particularly good education?‑‑‑No.

   What’s your reading and writing like?‑‑‑Not bad.

   But not good?‑‑‑No.

   Big words confuse you, don’t help?‑‑‑Yes.

   …

   Once you left school about 16, what did you do if you didn’t work?‑‑‑Just stayed home.

   …your parents’ home?‑‑‑Yes, my parents.

   And you lived there till you got married?‑‑‑Yes.

   And over that time, did you just help out ‑ ‑ ‑?‑‑‑Yes.

   ‑ ‑ ‑ your mother with housework?‑‑‑Yes. 

   …

   So you had no training for work?‑‑‑No.

   You don’t have a good education?‑‑‑No.

   And you’ve got depression?‑‑‑Yes.

   And when you’re really nervous ‑ 

   ‑ ‑ ‑ you have a speech problem that’s worse?

   But you have a speech problem anyway?‑‑‑I did but now it’s coming more –

   …

   I think you’ve told the court that you worked as a (occupation omitted) for about six weeks?‑‑‑Mmm.

   Was that for a relative?‑‑‑Yes.

   Who was that?‑‑‑My uncle.

   …

   And how many days of work was that each week?‑‑‑It was only probably about three hours a day.

   Three hours a day?‑‑‑Three hours, two hours.

   …

   For how many days a week?‑‑‑I think it was from Monday to Thursday.

   …

   Yes.  Where was he (business omitted)?  Was it a (omitted) or ‑ ‑ ‑?‑‑‑No.  Just (omitted).

   …  How many days a week was it again?‑‑‑Four.

   Four days per week over six weeks?‑‑‑Yes.

   You didn’t try and get work other than that work?‑‑‑No.

   …

   Why not?‑‑‑Yes.  My depression wasn’t as bad when I had my first one.  It’s more towards when I had – yes, my second one.

   When you say your first one and your second one, are you talking about children?‑‑‑Yes.

   …  And when did you actually work for your uncle?  What year?‑‑‑When my first daughter was about six months old.

   X?‑‑‑Yes.

   When she was six months old you worked for your uncle for six weeks?‑‑‑Yes.

   She’s 19 now?‑‑‑Mmm.

(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years

1. There is one child under 18 years, Z who has resided with the husband from January this year. She will be aged 17 in (omitted) this year. The husband gave evidence that she is currently a student undertaking a (omitted) course until the end of the year. The husband gave very little evidence of her dependency, which is likely to be for a short period, given in around 16 months she will be turning 18 years of age.

(d) commitments of each of the parties that are necessary to enable the party to support:

(i) himself or herself; and

1. Both have the need to support themselves but the wife probably cannot do it without government benefits.

(ii) a child or another person that the party has a duty to maintain

1. The wife currently pays token Child Support for Z and the father must contribute to his daughter’s support but to what extent is unclear given he did not complete page 11 of his Financial Statement.

(e) the responsibilities of either party to support any other person

1. Same as (d)(ii), above.

(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

1. Both are currently receiving government benefits but I expect the husband’s will be short-term. He gave evidence he had some superannuation benefits but exhausted these monies in supporting the family. The wife has no superannuation fund or scheme.

(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable

1. I will attempt to achieve this when drafting the orders.

(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

1. This is not relevant. Neither party sought spousal maintenance.

(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

1. Not relevant.

(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

1. Not relevant.

(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

1. Not relevant.

(l) the need to protect a party who wishes to continue that party's role as a parent

1. Although inferred in the husband’s case, it was not argued before me.

(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation

1. It was alleged the wife may have had such a relationship with Mr M but this was not established. This was not relevant in relation to the husband.

(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

1. See (g) above.

(ii) vested bankruptcy property in relation to a bankrupt party;

1. Not relevant.

(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:

(i) a party to the marriage; or

1. Not relevant.

(ii) a person who is a party to a de facto relationship with a party to the marriage; or

1. Not relevant.

(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

1. Not relevant.

(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii);

1. Not relevant.

(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

1. The wife is paying $7 a week for Z who will be 18 years of age in about 16 months.

(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account

1. Following the cross-examination of the wife I asked her the following:

   And you just mentioned then you’ve been in hospital.  What was that about?‑‑‑I had to go in in August last year.

   What for?‑‑‑Due to stress and going through all this court.

   What hospital was it?‑‑‑(omitted).

   (omitted) what?‑‑‑Mental Health.

   And you were an in-patient there?‑‑‑Yes.

   In August.  How long?‑‑‑I was in there for two weeks.

   Two weeks?‑‑‑Yes.  The ambulance came and transferred me to (omitted).

   …

   Now, while you were in hospital for two weeks in August last year ‑ ‑ ‑?‑‑‑Yes.

   ‑ ‑ ‑ did you undertake any tests?‑‑‑What kind of tests?

   About your mental health?‑‑‑I had – it’s the doctors coming to see me.  I think it was – yes, once a week, but they said this is all to do with court and all that.

   Because that was based on what you told them because they haven’t been to court?‑‑‑No.  But they told me, what’s this, you know, why are you so down and I told them because he keeps taking me to court all the time.

2. On this same topic, the father was cross-examined by the wife’s counsel as follows:

   And she suffers, as you know, depression and anxiety?‑‑‑Well, my diagnosis is borderline personality disorder.

   …

   … Borderline personality disorder.  As well as depression or?‑‑‑Well, back when DHS was involved it was depression, schizophrenia, anxiety, yes.  But they narrowed it down.  It was brought down to borderline personality disorder.

   …

   You would agree that she suffers depression and anxiety, though, wouldn’t you?‑‑‑Yes.

   Yes.  Along with some other issues that you say – that you would say she also has personality disorder and schizophrenia.  Is that right?‑‑‑That was the diagnosis.

   …

   She’s not likely to be able to obtain meaningful employment with that sort of diagnosis, is she?‑‑‑I don’t believe so.

   No?‑‑‑I believe that she can work.

   You believe she can work?‑‑‑Yes.

   …

   At what?‑‑‑(omitted) duties.

3. I note the husband conceded that the wife could not obtain meaningful employment but did suggest that an employer will consider the wife is an attractive proposition as a (occupation omitted) but I have real doubts about that given her presentation. Her anxiety was palpable, her demeanour one of a very anxious person that had a significant speech impediment and I find in all the circumstances after hearing from her and observing her in court for two days that she would probably not pass any interview for a job or present as a realistic option for an employer looking for a (occupation omitted).

(p) the terms of any financial agreement that is binding on the parties to the marriage

1. Not relevant.

(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

1. Not relevant.

Section 79(4)(f) any other order made under this Act affecting a party to the marriage or a child of the marriage

1. Not relevant save for the cost orders against the husband which I shall adjust in my final orders.

Section 79(4)(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.

1. See (na) above.

Just and equitable conclusion

1. This was an unusual case given the greater contribution overall by the husband but the overwhelming s.75(2) factors of depression and poor employment potential of the wife. The pool of assets is relatively small which makes my task even more difficult.

2. The first issue I should address is the payment of costs by the husband. These are orders I made previously and made by the Full Court. The husband said he did not pay the costs because he did not agree with the orders being made. I find that a strange attitude. Court Orders must be obeyed and the husband must recognise it is not optional. Moreover, given he will be in funds from the property order, these earlier orders for costs must be met by him from his share of those monies.

3. I note that he told the court he was looking for full-time employment and he was recently offered a job as a (occupation omitted) earning $80,000 per annum. I find that he has a clear income earning capacity that will provide him with financial security and over time, assuming he is prudent, it will give him the opportunity to accumulate monies and assets. He is aged 47 years which is nearly 20 years away from traditional retirement and I observe that he presents as having adequate health for his age.

4. I also note that the husband post-separation established a (omitted) business with the name “(omitted)” and previously operated a similar business titled “(omitted)” prior to separation. Moreover, he was employed as a part-time (occupation omitted) in 2013. Counsel for the husband in his final address quite properly conceded that the husband “… has a capacity to earn income at this stage.”

5. This is in stark contrast to the wife who in my assessment of her presentation and evidence would not obtain consistent and regular full-time work. She would be fortunate to obtain regular part-time or casual work which, in my view, is unlikely given today employers seek people with good presentation, solid qualifications and appropriate training and experience. The wife has none of these and is not a young woman. She has a history of serious depression and this may not be cured.

6. On a contribution basis, I would assess the husband being entitled to slightly more of the assets than the wife. However when one then looks at the s.75(2) factors and the question of equity and justice, my judgment is that the wife’s overwhelming incapacity and needs in the unusual circumstances of this case requires the final assessment to one of 60/40 in favour of the wife, particularly given the relatively small size of the pool where a percentage difference is not so significant.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Curtain

Date: 15 August 2016