Casson and Jerry

[2017] FCCA 3064

FEDERAL CIRCUIT COURT OF AUSTRALIA

CASSON & JERRY [2017] FCCA 3064

Catchwords:
FAMILY LAW – Settlement of de facto property matters – relationship of ten years in duration – one party high income earner during parties’ relationship – other party modest income earner – significance of initial contribution of capital relating to personal injury suffered by one party as a child – this contribution utilised to purchase real estate – significance of other contributions over length of relationship – assessment of section 90SM factors – assessment of home making contributions – construction of asset pool – add backs – how is a premature distribution of assets to be approached – monies now spent – Kennon issues – legal fees – assessment of section 90SF(3) factors – any other fact or circumstance – justice and equity.

Legislation:

Family Law Act 1975, ss.4(1); 75(2); 79; 90MC; 90RD; 90SF; 90SM;

Evidence Act 1995 (Cth), s.140

Cases cited:
Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143
Bevan & Bevan [2013] FamCAFC 116
Stanford v Stanford [2012] HCA 52
Ferraro & Ferraro (1992) 16 FamLR 1
Pierce & Pierce (1999) FLC 92-844
Kennon & Kennon (1997) FLC 92-757
In the Marriage of DJM and JLM (1998) 23 Fam LR 396
In the Marriage of Townsend (1994) 18 Fam LR 505
In the Marriage of Kowaliw (1981) FLC 91-092
Watson & Ling [2013] FamCA 57
NHC & RCH (2004) FLC 93-204
Waters & Jurek (1995) FLC 92-635
D & D [2003] FamCA 473
In re: Watson: ex parte Armstrong (1976) FLC 90-059
Mallett & Mallett (1984) FLC 91-507
Fox v Percy (2003) 214 CLR 118
C & C (2005) FLC 93-220
Clauson & Clauson (1995) FLC 92-595
Ferguson & Ferguson  (1978) FLC 90-500
Steinbrenner & Steinbrenner [2008] Fam CAFC 193

Applicant: MR CASSON

Respondent: MR JERRY

File Number: ADC 4417 of 2015

Judgment of: Judge Brown

Hearing dates: 12 & 13 April, 1 May and 21 July 2017

Date of Last Submission: 21 July 2017

Delivered at: Adelaide

Delivered on: 15 December 2017

REPRESENTATION

Counsel for the Applicant: Ms Lewis

Solicitors for the Applicant: All Family Law

Counsel for the Respondent: Ms Tinning

Solicitors for the Respondent: Tindall Gask Bentley

ORDERS

1. It is declared, pursuant to section 90RD(1) of the Family Law Act 1975 that a de facto relationship existed between Mr Casson (hereinafter referred to as “the applicant”) and Mr Jerry (hereinafter referred to as “the respondent”) between 2005 and 20016. 

In full and final settlement of all claims for settlement of de facto property claims between the applicant and the respondent it is ordered as follows:

1. Within forty-two (42) days of the date of these orders the applicant pay to the respondent the sum of $125,000.00. 

2. Contemporaneously with the payment referred to in order (2) above the respondent transfer to the applicant the whole of his right, title and interest in respect of the property known as Property C in the State of South Australia and being the whole of the land comprised in Certificate of Title Register Book Volume (omitted) Folio (omitted) (hereinafter referred to as “the parties’ former home”). 

3. Upon the transfer of the parties’ former home from the respondent to the applicant pursuant to order (2) the applicant and the respondent shall forthwith discharge the mortgage secured against the property and the applicant shall keep the respondent indemnified in respect of such mortgage and all other outgoings and liabilities in respect of the parties’ former home. 

4. The applicant retain all his estate and interest in the properties situate and known as:

   (a)Property A in the State of Queensland being the whole of the land contained in title reference number (omitted) together with all improvements thereon (hereinafter referred to as “the Queensland property”); and

   (b)Property B in the State of South Australia being the whole of the land comprised in Certificate of Title Register Book Volume (omitted) Folio (omitted) (hereinafter referred to as “the Property B property”).

5. The applicant do indemnify the respondent and keep him forever indemnified in respect of all mortgage payments secured against the Queensland property and the Property B property and pay all rates, taxes, insurance premiums and other outgoings in relation to both properties.

6. Including but without limiting the effect hereof, the applicant shall retain for his sole use and benefit absolutely free from any further claim or demand of the respondent the following items of property and superannuation:

   (a)The Jeep Wrangler motor vehicle currently in his possession;

   (b)Any interest held by him in the real property located in (country omitted);

   (c)The furniture, furnishings and personal effects currently in his possession;

   (d)Savings, shares and investments in his name;

   (e)Any superannuation entitlements, long service leave, annual leave or other work related effects; and

   (f)Any other real and/or personal property and/or financial resources of the applicant or in the applicant’s name and/or possession not otherwise specified herein.

7. Including but without limiting the effect hereof, the respondent shall retain for his sole use and benefit absolutely free from any further claim or demand of the applicant the following items of property and superannuation:

   (a)The (vehicle omitted) motor vehicle currently in his possession;

   (b)The furniture furnishings and personal effects currently in his possession, power and control;

   (c)Savings, shares and investments in his name;

   (d)Any superannuation entitlements, long service leave, annual leave or other work related effects; and

   (e)Any other real and/or personal property and/or financial resources of the respondent or in the respondent’s name and/or possession not otherwise specified herein.

8. All applications be otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4417 of 2015

MR CASSON

Applicant

And

MR JERRY

Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Casson and Mr Jerry were involved in a same sex de facto relationship, between 2005 and late October of 2015, when they finally separated, in difficult circumstances.  These proceedings relate to the resolution of property issues arising between them and are intended to end their financial relationship.

2. Mr Casson is a (occupation omitted).  He is employed by the (employer omitted) in Adelaide.  He also conducts a (business omitted).  He is highly skilled.  As such, he currently earns a high income and will continue to do so for the foreseeable future.

3. Mr Jerry is an (occupation omitted) by profession.  At the time of the hearing, he estimated his annual salary to be around $64,220.00 prior to tax.  On the other hand, Mr Casson’s tax return for the year ending 30 June 2015 indicated a taxable income of over $400,000.00. 

4. It is Mr Casson’s position that his financial and domestic contributions, during the parties’ relationship, greatly outweighed those of Mr Jerry.  In addition, he asserts that he brought significant assets into the relationship and these assets were the essential springboard, which enabled the parties to acquire three pieces of real property, which have significant value. 

5. In addition, Mr Casson asserts that his parents have assisted him financially, both prior to and during the parties’ relationship, particularly by advancing monies to him.  The status of the funds so advanced is highly controversial in these proceedings.  A related controversy arises in respect of a flat, which Mr Casson owns, with his brother, in (country omitted).

6. Mr Casson’s evidence is that his parents have loaned him two discrete sums, in amounts of firstly $152,500.00 and secondly $200,000.00 respectively, which he is required to repay, together with appropriate interest.  The first sum was utilised to purchase the parties’ former family home, located at Property C; whilst the second was made more recently, in 2017, after the litigation between the parties had commenced. 

7. Mr Jerry accepts the validity of the first loan to some extent but not the second, which he asserts was only recently disclosed and, as such, its probity should be regarded as being extremely doubtful by the court.  He asserts that the reality of the situation is that the alleged loan is in fact a sum which Mr Casson had earlier saved from his salary and it should therefore be regarded as a joint asset of the parties. 

8. The issue is complicated by the fact that, shortly prior to the trial commencing, Mr Casson provided a redacted copy of a bank statement relating to a (country omitted) bank account operated by his parents – Mr P and Ms N – to those advising Mr Jerry, in order to establish that he had paid regular instalments of interest in respect of the first loan.

9. This statement also evinced regular payments from Mr Casson, made in the period following the parties’ separation into his parents’ (country omitted) account.  The amounts total $132,500.00.  In his statement of financial circumstances, filed on 11 April 2017, Mr Casson discloses as an asset savings held by parents in an amount of $100,000.00.[1]  In any event, as this sum was accumulated by Mr Casson from his income in the period since the parties separated, he contends that it is irrelevant to these proceedings and should be excluded from them.

   [1] See Mr Casson’s financial statement filed 11 April 2017 at item 37

10. Given that the alleged loan of $200,000.00 occurred after the parties separated and involves close family relatives of Mr Casson, Mr Jerry is suspicious about it.  These suspicions are heightened by his recent discovery in respect of the monies being funnelled by Mr Casson through his parents’ (country omitted) bank account contemporaneously with the alleged loan. 

11. Mr Jerry does not accept that these are the actions of a candid litigant, who is transparent about his financial affairs, particularly in respect of his financial relationship with his parents.  In these circumstances, Mr Jerry asserts that Mr Casson may be concealing other assets from both him and the court to achieve his advantage and occasion detriment to Mr Jerry, particularly in respect of a discretionary family trust controlled by his parents. 

12. Mr Casson asserts otherwise, asserting that he has been saving monies to defray his legal expenses and secure a sum to payout Mr Jerry expeditiously.  In addition, he has deposed that he borrowed the sum of $200,000.00 in order to rationalise his mortgage borrowings in respect of the three real properties, which are subject to these proceedings, whilst at the same time being able to maximise his potential to keep two of the properties negatively geared for taxation purposes. 

13. This is one of the major evidentiary disputes between the parties.  It is also emblematic of a deep level of mistrust between them, which has been intensified by what can only be described as an emotionally fraught period since their separation.  During this period, Mr Casson alleges Mr Jerry removed the sum of $95,534.04, from the draw down facility attached to the parties’ joint home loan.

14. Mr Casson concedes that some of this sum can be traced into a portfolio of shares purchased by Mr Jerry.  However, he asserts that some $46,034.00 should be notionally added back into the parties’ pool of assets and credited to Mr Jerry.  Mr Jerry does not agree, contending it would be unfair to deal with the sum in this way.

15. These various controversies, particularly their disparate views in respect of the monies recently advanced by Mr Casson’s parents and the monies advanced by Mr Casson to his parents’ account has led to the parties having diametrically opposing notions as to what is the extent of the net asset pool available to be divided between them.

16. There is little formal evidence regarding the value of the (country omitted) flat.  It is Mr Casson’s position that his parents purchased the flat for his and his brother’s accommodation, whilst they were studying at university, in the 1990s, which was long before his relationship with Mr Jerry commenced. 

17. In his affidavit, Mr Casson has attributed a value of around (omitted) to the (country omitted) flat, of which he has a half share.  This equates to approximately $160,000.00.  Mr Jerry accepts this value and places it in the parties’ pool of assets as a credit for Mr Casson.

18. In his statement of financial circumstances, Mr Casson has included, under the heading other personal property items of property characterised as follows: “property owned in (country omitted) from prior to relationship; trust with parents in (country omitted); (omitted) artwork $25k”.  The property so detailed is allocated an estimated value of $25,000.00.[2]

    [2] Ibid at item 43

19. Much time during the trial was devoted to the issue of the (omitted), which more accurately can be described as a limited edition print of a work entitled (omitted) by the anonymous (omitted) artist, who styles himself (omitted).  The print has been valued at $20,000.00.[3]  Mr Casson has deposed that Mr Jerry surreptitiously removed the print from its frame and replaced it with a worthless photocopy.

    [3] See exhibit D

20. Mr Casson graduated from (school omitted) in 2000 and left (country omitted) permanently in 2003.  Thereafter, it is his evidence that he has had nothing to do with the (country omitted) flat, which has been utilised and maintained by his parents, who use it as a pied-a-terre, when they visit (country omitted). 

21. In these circumstances, although he concedes that he has a half interest in the property in a legal sense, in moral terms he regards the property as belonging to his parents.  As such, he does not believe that his ownership of the (country omitted) flat is relevant to the court’s deliberations.  Mr Jerry does not agree.

22. Mr Casson characterises Mr Jerry as a violent and reactive person, whose conduct during the parties’ relationship made his life very difficult indeed and therefore rendered it significantly more arduous for him to render his significant domestic contributions.  In addition, in the aftermath of the parties’ separation, he alleged Mr Jerry has attempted maliciously to damage his professional reputation, as well as having actually destroyed some items of shared property. 

23. Mr Casson also asserts that Mr Jerry utilised joint funds for his sole benefit in this difficult period.  The sum in question being around $95,000.00, which was removed from a joint account at the time of separation.  Again, Mr Casson contends that these are factors to which the court must have regard in its assessment of how the asset pool is to be both constructed and divided.

24. Mr Jerry is not in a position to refute Mr Casson’s evidence that his (Mr Casson’s) financial contributions, during the parties’ relationship, were markedly superior to his.  However, he asserts that he played an integral role in supporting his then partner, whilst he acquired his (omitted) qualifications, both in Brisbane and Adelaide, which involved significant personal sacrifices on his part.

25. In addition, he contends that Mr Casson has under estimated his very significant domestic contributions made during the parties’ long relationship of ten years, during which Mr Casson worked long hours, leaving home responsibilities to him.  Finally, he does not refute Mr Casson’s evidence that his behaviour at the end of the parties’ relationship was far from being beyond reproach.

26. In this context, he would categorise himself as a sensitive and vulnerable person, who reacted badly to the end of the parties’ relationship, which in turn caused him to behave poorly.  He also points to the fact that he has a significant history of compromised mental health, which has implications for his future employability. 

27. In all these circumstances, it is Mr Jerry’s position that he faces an uncertain financial future, as he has limited skills and a modest income earning capacity, which is in marked contrast to Mr Casson, whose financial security is assured.  During final submissions, I was told by Mr Jerry’s counsel that he had recently resigned his position as an (occupation omitted) and was planning to travel overseas when the outcome of these proceedings is known.

28. As a consequence of these various controversies, the parties have very different views, not only as to how their asset pool is to be divided but what it actually comprises.  In net terms, Mr Casson asserts the pool is around $500,000.00; whilst Mr Jerry asserts it is over $900,000.00. 

29. This very significant discrepancy relates to Mr Jerry including Mr Casson’s interest in the (country omitted) flat in an amount of $150,000.00.  In addition, Mr Casson has included the disputed loan to his parents, in the sum of $152,500.00, as a liability.  He asserts the sum was utilised to reduce the parties’ mortgage liabilities and as such is a joint debt of the parties. 

30. On the other hand, Mr Jerry has categorised a sum of around $132,000.00, which was advanced to Mr Casson from his parents’ bank account as having its original provenance in Mr Casson’s savings and therefore should be regarded as a joint asset, as it originated during the parties’ relationship.

31. During their respective careers to date, both parties have been largely employed by (employers omitted) in both Queensland and South Australia.  As such, their respective superannuation entitlements are readily ascertainable and cannot be subject to controversy.  In total, the parties hold superannuation amounting to $442,202.00. 

32. By dint of his superior income, Mr Casson holds markedly more superannuation than does Mr Jerry.  He holds approximately 72% of the total amount.  Given the circumstances of the case, it is Mr Casson’s position that it would be equitable for there to be no adjustment in respect of superannuation matters.  On the other hand, Mr Jerry contends that there should be a sufficient split, in his favour, out of Mr Casson’s superannuation to ensure an equalisation of the parties’ superannuation. 

33. Clearly, the first major task for the court will be to resolve evidentiary issues regarding the construction of the parties’ pool of assets.  This will focus primarily on the (country omitted) flat and the actual provenance of the monies, which came from Mr Casson’s parents in 2017, as well as some other subsidiary matters relating to a loan made to the parties’ mutual friend Mr M and small amounts held in bank accounts at separation.  A major issue arises in respect of the significant sum of money withdrawn by Mr Jerry from the parties’ joint account and what he did with it.

34. As previously indicated, the parties have diametrically opposing views in respect of these various issues.  As such, it is somewhat trite to speak of issues relating to the division of this uncertain pool of assets, in percentage terms.  For both the court and the parties themselves, what is important is what such a division means in dollar terms. 

35. However, in this context, it is Mr Casson’s position that the parties respective contributions should be assessed as being 75/25 percent in his favour, in respect of an asset pool, which is significantly smaller than that advanced by Mr Jerry. 

36. In addition, Mr Casson proposes a further adjustment of 5% in Mr Jerry’s favour, in recognition of the significant discrepancy in income earning capacity between the parties.  This would lead to an overall division of 70/30% in his favour, which is roughly the same distribution of their superannuation holdings.  From Mr Casson’s perspective this would represent a just and equitable outcome.

37. On the other hand, Mr Jerry would assess the parties’ contributions as being 60/40% in Mr Casson’s favour.  He further asserts that an appropriate adjustment in his favour, because of the disparity in the prospective circumstances of the parties, would be a further 10%, leading to an equalisation of assets.  He proposes that the same approach be taken to the parties’ superannuation assets. 

1. These proceedings are directed to resolving these various issues between the parties in order to arrive at a division of their property which is just and equitable in all the circumstances.  It will also be directed at finalising the financial relationship between them.

The Legal Principles Applicable

1. Part VIIIAB of the Family Law Act “the Act” is the part of the Act dealing with financial matters relating to de facto relationships. The major provisions, relating to de facto property division, are contained in sections 90SM(1); 90SM(3); 90SM(4); & 90SF(3) of the Act.

2. The operation of these provisions is dependent upon the existence of a de facto relationship, between the parties concerned, which in term is subject to satisfaction of criteria related to temporal factors and geographical considerations.

3. In this case there is no dispute that the relationship, between the parties, largely occurred within a participating jurisdiction (South Australia) and is amenable to the Commonwealth legislation because of the date on which it ended (late 2015) and is therefore to be characterised as a de facto relationship, as defined by the relevant provisions of the Act and therefore one which is subject to its operation. 

4. In addition, there is no controversy as to when that relationship began and when it formally broke down.  It is clearly one which is greater than two years in duration and therefore amenable to the provisions of Part VIIIAB.

5. In these circumstances, neither party has sought that the court should formally make a declaration pursuant to section 90RD(1) of the Act that a de facto relationship existed between them. Pursuant to the section the court has a discretion to make a declaration as to the existence or otherwise of a de facto relationship. Although it is implicit in the respective positions of each of the parties that such a de facto relationship existed, for the sake of completeness, I will make such a declaration.

6. Section 90SM authorises the court, following the breakdown of a de facto relationship, to make the orders for the alteration of property interests as it considers appropriate.  The provisions of section 90SM are analogous to the provisions applicable to matters relating to the division of property and spousal maintenance of married individuals contained in Part VIII of the Act, particularly section 79.  Accordingly, the same jurisprudence is applicable to be both sets of provisions, in a general sense.

7. The expression “property” is defined in section 4(1) in relation to the parties to a de facto relationship as meaning “…property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.”

8. Pursuant to section 90SM(3) the court is actively prevented from making an order altering proprietorial interests, unless it is satisfied that it is just and equitable to do so in all the circumstances prevailing.  This follows from the use of the prohibitive words “shall not” in the relevant section.

9. Section 90SM(4) provides the mechanics of how a court is to make an order altering de facto property interests.  It provides seven matters [in paragraphs (a) – (g)] to be considered, as relevant.

10. Paragraphs (a); (b); and (c); categorise contributions made by de facto partners, which are relevant.  Paragraph (d) directs the court to take into account the effect of any order upon the earning capacity of either party to the de facto relationship concerned. 

11. Paragraph (e) directs the court to consider a list of matters contained in section 90SF(3), which are germane to maintenance or the prospective positions of the parties concerned by reference to their respective financial resources, means and needs.

12. Finally, Paragraphs (f) and (g) apply to child support and previously made parenting orders, as relevant.  There is some overlap between these various provisions and not all will be applicable in every case.  These provisions are not relevant in the present case.

13. Until recently, the position in respect of the process to be applied to the resolution of both de facto and matrimonial property cases was said to be well settled, as it required the application of a preferred approach.  This approach entailed a four step process, described by the Full Court as follows:

    ·       identification and valuation of the property of the parties;

    ·       identification and evaluation of contributions to the property (including property no longer owned by the parties) – the contribution phase – section 90SM(4) (a) to (c) or section 79(4) (a) to (c);

    · identification and assessment of the various matters in section 90SM(4) (d) to (g) or 79(4)(d) to (g) including to the extent they are relevant, the matters in either section 90SF(3) or 75(2), as applicable – the prospective needs phase;

    ·       considerations of justice and equity.[4]

    [4]  See Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 at 78,386 [39] and Bevan & Bevan [2013] FamCAFC 116 at [60]

14. The general applicability of this four step process has been recast, to some extent, in the light of what has been said recently by the High Court in the matter of Stanford v Stanford.[5]  In the case, the majority stated that:

    “It will be recalled that s 79(2) provides that [t]he 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". Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.

    The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.” [6]

    [5]  Stanford v Stanford [2012] HCA 52

    [6] Ibid at [35] – [36]

15. In Stanton the High Court indicated that, in the vast majority of matrimonial property cases (and by necessary implication de facto matters), the requirements of section 79(2) (and by necessary implication section 90SM(3)) will be readily satisfied, largely as a result of a consideration of the circumstances of the parties concerned, particularly the nature of their separation.  The majority said as follows:

    “In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of the choice 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 wife.  No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship.  That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship.  And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end.  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 section 79(4).” [7]

    [7] Ibid at [42]

16. In Bevan the Full Court noted that the above paragraph was likely to encapsulate the vast majority of cases coming before courts, such as this one, namely that the circumstances of the parties concerned, following the end of the marriage (or de facto relationship) between them, made it readily apparent that it was just and equitable to make a property order and therefore it would be open to the court concerned to adopt the multi-stepped process endorsed by cases such as Hickey.

17. In Bevan the majority of the Full Court (Bryant CJ and Thackeray J) said as follows:

    “Although the High Court did not disapprove the four step process, we accept it did not approve it either... However, the High Court’s decision serves to refocus attention on the obligation not to make an order adjusting property interests unless it is just and equitable to do so.

    …

    Stanford will also serve as a reminder that the four step process ‘merely illuminates the path to the ultimate result’.”[8]

    [8]  See Bevan (supra) at [65] and [71]

18. From this, I take it, the four step process remains a valid approach in the vast majority of cases, provided care is taken not to overlook the requirement that all orders, altering property interests, in proceedings arising under the Act, be just and equitable.

19. In this case, it is abundantly clear that, firstly there was a de facto relationship between the parties and it has now incontrovertibly come to an end and, as such, there is no longer any logical justification for them holding any joint community of property together.   Thus, in my view, it is clearly just and equitable that orders be made altering their proprietorial interests, pursuant to the mechanisms provided by section 90SM(4).

20. In these circumstances, I am satisfied that it is appropriate to adopt the four step process in this case and it is in accordance with notions of justice and equity that the court proceeds to make orders pursuant to section 90SM of the Act, in respect of the parties’ various proprietorial interests.

21. As was discussed by the Full Court in Bevan, whether it is just and equitable to make any particular property order is invariably inextricably interwoven with questions of contribution arising under either section 90SM(4) or 79(4) and the parties’ financial and relationship history with one another. 

22. Although the court must be careful not to combine issues arising under section 90SM(3)/79(2), with the exercise arising under section 90SM(4)/79(4), it is artificial to divorce them from each other.  Section 90SM(3)/79(2) does not, however, represent a formal threshold to be crossed prior to the undertaking of the section 90SM(4)/79(4) exercise. 

23. Rather, the overall task is a holistic one, to be informed by the idiosyncratic circumstances of each case concerned.  However, in most cases, it will be readily apparent that it is just and equitable to make an order altering the property interests of the parties concerned because of their circumstances or the manner in which each has presented their case and the orders sought.

24. In Stanton, the High Court, in its first proposition, indicated that, in determining whether it was just and equitable to make any particular property order, it was necessary to identify the existing legal and equitable interests of the parties in the property.  The High Court itself emphasised the word existing. 

Issues arising under the four step process

1. The first orthodox step is for the court to identify the assets and liabilities of the parties concerned.  Ordinarily, this exercise should involve the identification of assets at the time of the hearing.  However, in some circumstances, considerations of justice and equity may dictate that other assets should be either included or deleted.  As outlined above, this first step is controversial in the following areas:

   ·Should the (country omitted) flat be included in the parties’ pool of assets?  If so, what is its value;

   ·Does Mr Casson have any interest in the discretionary family trust operated by his parents;

   ·Are the parties jointly liable to Mr Casson’s parents in respect of two loans of $152,500.00 and $200,000.00 respectively;

   ·What approach is to be taken in respect of the monies advanced by Mr Casson to his parents in the period since the parties separated;

   ·How are the funds repaid ($16,000.00) and interest thereon ($2,000.00) by Mr M to Mr Casson, a mutual friend of the parties, to be treated;

   ·What sums, if any, are to be added back into the asset pool?  In this category arise the following sums:

   Ø$5,671.00 standing to Mr Casson’s name in a cheque account as at separation and utilised by him;

   Ø$6,521.00 withdrawn by Mr Jerry from the parties’ joint account relating to the Property A rent account post separation in 2016 and utilised by him;

   ØThe monies withdrawn by Mr Jerry from the parties’ joint account ($95,534.04), which he utilised in part to pay car loan payments, purchase shares and to re-equip himself with furniture and effects, leaving a balance of $46,034.00.

2. The second orthodox step involves the court ascertaining and evaluating the various contributions which each party has made towards the items of property identified following the first step.

3. These contributions arising pursuant to section 90SM(4)(a)(b) & (c) can be broadly categorised under two headings.  The first kind is contributions to the property: financial contributions and non-financial contributions, made directly or indirectly, by or on behalf of a party to the de facto relationship to the acquisition, conservation or improvement of any of the property.  

4. The second kind is contributions to the welfare of the family: in the words of the section, “the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship, including any contribution made in the capacity of home maker or parent.”[9] 

   [9]  See Family Law Act s 90SM(4)(c)

5. It is clear from the authorities that this second kind of contribution must be given appropriate weight and is not to be treated as a token matter or as a contribution, which is inherently less valuable or important than a financial contribution to property.[10]

   [10]  See Ferraro & Ferraro (1992) 16 FamLR 1 at 38

6. Section 90SM(4) requires that the court look at the entirety of the contributions, both financial and non-financial, as they relate to the welfare of the family as well as to the acquisition, conservation and improvement of those assets. Contributions are not required to be tied to the acquisition, conservation or improvement of a particular asset and are to be taken into account generally as contributions in a total sense.

7. The following issues arise under the second step:

   ·It is Mr Casson’s contention that his direct financial contributions have been overwhelmingly superior to those of Mr Jerry, particularly in terms of the value of property he brought into the relationship at its outset and as such demand special recognition by the court in its assessment of contribution;[11]

   ·In addition, Mr Casson contends that as he earned significantly more than Mr Jerry during the relationship, he contributed more from his recurrent income to the maintenance of assets;

   ·The parties also disagree in respect of the extent of their respective homemaking contributions – Mr Casson contends that he performed the vast majority of household tasks, including tending to the parties’ two dogs; on the other hand Mr Jerry asserts that he pulled his weight in this regard, particularly in terms of developing the garden at their former family home;

   ·Mr Casson contends that Mr Jerry’s labile personality rendered it significantly more arduous for him to provide his significant homemaking contributions during the parties’ relationship;[12]

   ·Mr Casson contends Mr Jerry has wasted joint assets, particularly when he destroyed the blinds ($5,500.00)[13] at the parties’ former home and poisoned some of the trees in the garden ($1,320.00)[14] in the period around the parties’ separation.

   [11] See Pierce & Pierce (1999) FLC 92-844

   [12] See Kennon & Kennon (1997) FLC 92-757

   [13] See Exhibit F

   [14] See Exhibit G

8. The third orthodox step involves the assessment of the parties’ prospective needs by reference to a list of factors set out in section 90SF(3) of the Family Law Act 1975. Pursuant to section 90SF(3)(r), the court is entitled to take into account “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”.  

9. A number of Full Court authorities have utilised this provision to ensure that proper regard is had to a variety of considerations in order to ensure a just and equitable outcome in property proceedings. In particular, under the rubric of section 90SF(3)(r), the court is provided with a discretion to deal with property, which it is convenient to describe as being notional in nature, in the sense that the property in question no longer exists or is no longer accessible by the parties. 

10. Such property usually is confined to one of three categories – money spent in paying legal fees, which unfairly diminishes the matrimonial asset pool;[15] the premature distribution of matrimonial assets;[16] and money or assets wasted through reckless conduct. ^[17]

    [15]  See In the Marriage of DJM and JLM (1998) 23 Fam LR 396

    [16]  See In the Marriage of Townsend (1994) 18 Fam LR 505

    [17]  See In the Marriage of Kowaliw (1981) FLC 91-092 at 76,644

11. In this particular case, the parties have each provided me with memoranda regarding their respective legal costs.  Mr Casson has incurred fees of $27,638.00.  Due to his superior level of income, he has paid all but $2,937.00 of this sum.  He has outstanding disbursement, particularly counsel’s fees of about $18,000.00.

12. Mr Jerry’s legal fees are significantly more that Mr Casson’s.  He has unpaid legal fees of $26,259.10; paid legal fees of $20,881.70; and disbursements of $6,257.76 of which $3,208.03 is unpaid.  He has borrowed $12,000.00 from his mother to defray part of this cost.  The anticipated costs of the hearing, including counsel’s fees, were calculated to be a further $20,900.00.  In total, the estimated costs of the proceedings for Mr Jerry are $74,298.56.

13. It is Mr Jerry’s case that a number of factors arising under section 90SF(3) greatly favour him as follows:

    ·He has few professional qualifications, in marked contrast to Mr Casson, as a consequence his likely level of income, for the foreseeable future, will only be a fraction of that enjoyed by Mr Casson;

    ·During the parties’ relationship, he was able to enjoy a comfortable standard of living, which is not likely to be available to him in future;

    ·He holds significantly less superannuation than does Mr Casson and is less able to add to it.  Accordingly he is likely to be less well provisioned for retirement than Mr Casson.

14. Other more specific issues arise under section 90SF(3)(r), namely:

    ·Does the differential in respect of the parties’ legal fees require adjustment, particularly given Mr Casson has, by dint of his superior income, largely been able to pay his, as he has gone along;

    ·How should the court approach the significant sum withdrawn by Mr Jerry at separation, which has largely been utilised to re-equip his home and on some of his recurrent living expenses;

    ·How should the court approach other sums, standing in bank accounts at separation, which have been used by each of the parties in the period since;

    ·How should the court approach the issue of the costs incurred by Mr Casson in respect of the blinds and plants damaged by Mr Jerry at separation;

    ·How should the court approach the allegation of Mr Casson that Mr Jerry’s labile personality made it significantly more difficult for him to perform his household tasks, during the parties’ relationship;

    ·What relevance, if any, does Mr Jerry’s post separation conduct have to these proceedings.

15. In this case, each party wishes the court to notionally add back, into the parties’ pool of assets, items of property which have been spent or utilised.  The authorities indicate that this issue can be approached in a number of ways and is not necessarily to be approached on a strict dollar for dollar basis. 

1. Rather the issues must be approached on an idiosyncratic basis, depending on the overall circumstances of the case concerned, within the overarching consideration of what is just and equitable.  The ultimate rationale for any add back to avoid unfairness being occasioned to a party.

2. In Watson & Ling Murphy J said as follows:

   “Where the Court has determined that it is just and equitable to make an order pursuant to s 79(2) or s 90SM(3) and there is clear evidence that one party has engaged in conduct and, but for that conduct, the legal and equitable interests of a party or the parties (or the value of those interests) would have be significantly greater, justice and equity may require recognition of the unfairness inherent in those circumstances in the terms of the orders to be made.

   How might that be recognised? First, consistent with existing authority, it can be recognised pursuant to s 75(2)(o) (cf s 90SF(3)(r)) (see, for example, Omacini & Omacini (2005) FLC 93-218, Browne & Green (1999) FLC 92-873 and Cerini). Secondly, it might be contended that it might be recognised within the assessment of contributions. This Court has long eschewed the notion of “negative contributions” (see, for example, Antmann & Antmann (1980) FLC 90-908). Nevertheless, it might be argued that the “non-dissipating party” can be seen to have made a disproportionally greater indirect contribution to the existing legal and equitable interests (for example to their preservation) if it is established that, but for the other party’s unilateral dissipation, those existing legal and equitable interests would have been greater or had a greater value.

   The assessment of the circumstance under discussion is, ultimately, a matter of discretion (see, for example, Cerini at [46] and Townsend at 81,654). Equally, however, authority dictates that it will be “the exception rather than the rule” (Cerini at [46]) that a direct dollar adjustment equivalent to the amount of the alleged dissipation of the pool is made to the otherwise entitlement of a party. It may be that aspects of the erstwhile treatment of legal fees pre-Stanford (see, for example, NHC & RCH (2004) FLC 93-204) will require further consideration in an appropriate case. 

   Importantly, of course, as has been emphasised in many authorities including those cited above, not every dissipation by a party can be seen to involve an affront to justice and equity; again the circumstances of the individual relationship must be assessed.”[18]

   [18] Watson & Ling [2013] FamCA 57 at [33] – [34]

3. However, parties to a de facto relationship are entitled to continue to utilise joint relationship assets for their own financial support post separation.  There is no principle arising under the Act that the parties to such a relationship are required to adopt some form of suspended economic animation once their relationship breaks down, pending the resolution of their financial arrangements. 

4. Parties must necessarily continue to provide for their economic support in the changes circumstances arising since separation.  Whether such utilisation is either unfair or unreasonable is a matter for the court to determine within the overall evidential context of the case.[19]

   [19]  See NHC & RCH (2004) FLC 93-204

5. The “overriding requirement” of section 90SM is that considerations of justice and equity should inform the process envisaged therein.  The exercise I must undertake is not a “process of social engineering”[20] or of equalisation of assets or financial resources.  Considerations of this type inform the so-called fourth step, as well as providing the determination as to how the court should approach issues such as notional property.  The court must make the orders it considers just and equitable.

   [20]  See Waters & Jurek (1995) FLC 92-635

6. As such, I am at pains to point out to the parties that the task I must undertake is not a simple accounting or arithmetical task.  In the jargon of the times, I cannot “crunch the numbers” to come up with a division of their property, which is not open to challenge or incapable of different interpretation.  My responsibility is to exercise the discretion reposing in me according to considerations of justice and equity.

7. De facto relationships, such as the one between the parties in this case, which is many years in duration, must be regarded as being in the nature of a joint enterprise.  How much buffer partners in such a relationship, must give one another, when financial setbacks occur, must depend on the degree of consultation and acquiescence in their relationship.[21]

   [21]  See D & D [2003] FamCA 473 at paragraph 49

8. The task, set out for me in this case, requires me to balance and compare contributions, which are by their nature different, within the framework of the de facto relationship concerned.  Many contributions in a lengthy de facto relationship, such as being a homemaker, do not result in the direct acquisition of assets.  They are also difficult to value, but they add significantly to the nature and quality of the relationship under consideration in the case concerned.  The discretion I have is a wide one.  It is however not an exercise in “palm tree justice”.[22]

   [22]  See In re: Watson: ex parte Armstrong (1976) FLC 90-059 at 75,270

9. In this context, the following comments of Gibbs CJ in Mallett & Mallett [23] are apposite:

   “Decisions in particular cases of that kind can, however, do no more than provide a guide; they cannot put fetters on the discretionary power which the Parliament has left largely unfettered.  It is necessary for the Court, in each case, after having had regard to the matters which the Act requires it to consider, to do what is just and equitable in all the circumstances of the particular case.”

   [23]  Mallett & Mallett (1984) FLC 91-507

The evidence

1. The parties themselves were the only witnesses in these proceedings.  The applicant relies on the following documents:

   i)His affidavit filed on 21 March 2017;

   ii)Statement of his financial circumstances filed on 11 April 2017;

   The respondent relied on the following documents:

   i)      His affidavit filed on 5 April 2017;

   ii)Statement of his financial circumstances filed on 5 April 2017.

2. The parties have a different view in respect of significant issues arising in the case.  My impression of Mr Casson is that he is a methodical and careful person, particularly in respect of financial matters.  I found him to be an honest and credible witness.  In general terms, I accept his evidence as being, on balance, more likely to be reliable than that of Mr Jerry.

3. Mr Jerry concedes that he behaved extremely poorly around about the time of the parties’ separation.  Regrettably it will be necessary for me to outline, in more detail, the particulars of this behaviour, which included some aspects of deceit, including in regards to the (omitted) print. 

4. Whilst I accept that Mr Jerry was very hurt by the circumstances surrounding the parties’ separation, and undoubtedly reacted poorly to it, it is still necessary for me to make some assessment of his overall credibility, particularly in regards to his assertion that Mr Casson has behaved dishonestly in attempting to conceal monies from him by placing them in his parents’ bank account.   

5. In this context, I acknowledge that, for any person, the breakdown of a long term relationship is an extremely stressful situation and, when stressed, individuals are likely to be more prone to lapses in their behaviour, which are not necessarily indicative of their long term reliability, honesty or conduct generally. 

6. However, notwithstanding these strictures, it remains necessary for me to make an assessment of Mr Jerry’s credibility.  He was an extremely emotional witness, who was frequently driven to tears during his evidence.  He did make concessions, from time to time and, to his great credit, apologised publicly to Mr Casson for some examples of his behaviour, including in respect of the (omitted) print, which was ultimately returned to Mr Casson, during the trial, in an undamaged condition. 

7. The evidence clearly indicates that Mr Jerry behaved cavalierly in respect of withdrawing significant sums from the parties’ jointly held accounts.  He did so without prior reference to Mr Casson and did not subsequently account to him for the monies utilised by him.  As a consequence, throughout these proceedings, it has been necessary to attempt to reconstruct what he did with the monies.  It has not always been an easy task and, in my assessment, has rendered these proceedings more problematic.

8. Against this background, which has included Mr Jerry making extreme and outlandish allegations against Mr Casson’s character and personal predilections, Mr Casson has felt compelled to behave in a protective fashion in respect of his financial affairs.  It is in this context, in my view, his unusual behaviour in forwarding funds to his parents in (country omitted) and subsequently borrowing a significant sum from them must be viewed.

9. For reasons upon which I will expand, I can find nothing sinister in how Mr Casson has chosen to deal with his recurrent salary in the turbulent period since the parties separated.  In addition, in my view, it was understandable that he would borrow money from his parents with whom he enjoys a close relationship. 

10. In my assessment, it is Mr Jerry’s behaviour, including his ability to spend relatively large sums of money very quickly, which has made the forensic task required in these proceedings more rather than less difficult.  In my view, Mr Casson has done his best, in difficult circumstances, to stay on top of what has occurred in the parties’ financial relationship. 

11. In addition, since the parties finally separated, Mr Casson has acted in a financially defensive position.  This is because he has been fearful that Mr Jerry would behave in an unpredictable and unscrupulous fashion, which would have had the potential to cause him to be at risk of suffering significant financial prejudice. 

12. In my view, given Mr Jerry’s behaviour, Mr Casson had ample justification for acting as he did.  However, this has also added to the difficulty in the case, particularly in respect of the issue of the funds sent off shore, by Mr Casson, in the period following separation.

13. In contrast to Mr Casson, Mr Jerry is not careful in respect of financial matters.  As such, he did not appear to me to be a particularly adept financial historian.  In marked contrast to Mr Casson, Mr Jerry is profligate in his attitude to money. 

14. In these circumstances, it seems more likely to me than not that it was Mr Casson rather than Mr Jerry who managed the parties’ funds and financial arrangements, during their relationship, and, as a consequence, he knows far more about them than does Mr Jerry.  I also consider Mr Casson to be a scrupulously honest person, which is not necessarily my view in respect of Mr Jerry.  I recognise however, that Mr Jerry did acknowledge much of his previous poor behaviour during the course of his evidence, which is to his credit.

15. In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observation of the demeanour of each of the witnesses concerned.[24]  I have tried to reach my conclusions on credibility and reliability on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events.[25]

    [24]  See Evidence Act1995 (Cth) at section 140

    [25]  See Fox v Percy (2003) 214 CLR 118 at 129 [31] per Gleeson CJ, Gummow and Kirby JJ

16. In addition, I bear in mind section 140(2) of the Evidence Act, which indicates that in applying this standard of proof, I am entitled to consider the nature of the subject-matter of the proceedings and the gravity of the matters alleged.

    a)Background

17. Mr Casson was born in (country omitted) on (omitted) 1976.  He graduated in (qualifications omitted), from the (omitted) University in 2000.  Between 2000 and 2005, he worked as a (occupation omitted) in (country omitted) and the (country omitted).  In 2005, he moved to Brisbane, where he began training as a (occupation omitted) at the (employer omitted). 

18. Mr Jerry was born in (omitted), Queensland, on (omitted) 1983.  In late 2004, he completed a (qualifications omitted), which he utilised to take up a position as an (occupation omitted) at the (employer omitted). 

19. The parties met in Brisbane in (omitted) 2005 and began to live together at Mr Casson’s rented accommodation shortly thereafter.  The parties lived in this accommodation until 2007, when their first major piece of real property was purchased.

20. At this time, both parties were members of the (omitted) Employees Superannuation Scheme.  Mr Casson had only been in the fund for a matter of months and had less than $5,000.00 accumulated in superannuation; Mr Jerry had been a member since late 2002 and had funds approaching $9,000.00. 

21. When Mr Casson was a child in (country omitted), he suffered a significant injury to his right eye, which resulted in him losing sight in this eye.  The eye itself was removed in 1995 for cosmetic reasons.  He has had to undergo many operations since his initial accident.  Due to the provisions of (country omitted)’s compulsory system of accident insurance, Mr Casson received a sum of compensation, which was invested on his behalf until he reached his majority.  The amount in question grew to a sum of roughly $90,000.00, when it was accessed.

22. Whilst I accept that Mr Jerry owned some furniture and items of household equipment when the parties began their relationship, in my finding, apart from Mr Casson’s accident trust monies, the parties had few items of property of significant value at this time.  It is also Mr Casson’s evidence that he essentially financed the furnishing of and paid the bond on the parties’ rented property.

23. In the early period of the parties’ relationship, there was a disparity in the parties’ income.  Mr Jerry earned around $40,000.00 per annum, which increased to around $50,000.00; Mr Casson earned significantly more.  In 2009, he was earning $110,000.00 per annum, which included a significant component of overtime in the (employer omitted).  

24. It is Mr Casson’s evidence that he felt compelled to work additional hours to keep up with Mr Jerry’s spending, which he regarded as somewhat profligate.  It is also his evidence that he performed the majority of the domestic tasks required to keep the parties’ household running satisfactorily.

b)     The purchase of Property A

1. The parties purchased Property A “the Property A property” in (omitted) 2007.  The purchase price was $540,000.00.  This sum was financed through Mr Casson accessing the monies held in trust, on his behalf, as a result of his eye injury, together with some of his savings.  Mr Casson asserts that he provided a sum of $110,726.32 from these sources, with the remaining funds coming from a mortgage loan.

2. Mr Casson has provided a trust account receipt in this sum, which in my view corroborates his assertion that he advanced the necessary funds, which enabled the parties to acquire the Property A property.[26]  It is further Mr Casson’s evidence that he agreed to the property being registered in the parties’ joint names, against his better judgment, and because he wished to mollify Mr Jerry’s feelings.

   [26] See Annexure C 1 to the applicant’s affidavit filed 21 March 2017

3. It is Mr Casson’s evidence that the parties experienced some difficulties in obtaining a joint mortgagee for the purchase because of Mr Jerry’s poor credit record and level of consumer debt.  In this context, Mr Casson asserts that he paid out Mr Jerry’s credit card debt, which then stood in an amount of around $6,000.00.  Mr Jerry does not accept that this was the case. 

4. In my view, it is not necessary for the court to resolve this controversy in any definitive way.  I accept however that without Mr Casson’s funds, the parties would not have been in a position to purchase the Property A property.  At the time of the property’s purchase, he contributed approximately 20% of its value.  The parties agree that the property is currently worth $700,000.00.  Without this contribution, which emanated solely from Mr Casson, the parties would not have been in a position to purchase the Property A property.

5. After its purchase, the Property A property was the parties’ home.  From time to time they shared the property with members of Mr Jerry’s family, particularly his sister and brother, who only paid nominal rent.  In 2010, Mr Casson took up a position as a (occupation omitted) at the (employer omitted) in Melbourne for twelve months in order to advance his (omitted) qualifications.  His salary was approximately $90,000.00 per annum.  During this period, he rented accommodation in Melbourne and returned to Brisbane on approximately thirty weekends, staying at the Property A property with Mr Jerry.

c)      The purchase of Property C

1. In early 2011, Mr Casson was offered a (omitted) position in Adelaide.  Against this background, Mr Jerry resigned his position in Brisbane and moved, in tandem, with Mr Casson to Adelaide.  The Property A property was rented, with the rent received used to defray the mortgage expenses.  I accept Mr Casson was generally responsible for the leasing arrangements and the mortgage.

2. When Mr Jerry left Brisbane, he resigned his position, which paid him approximately $60,000.00 per annum.  It is Mr Casson’s evidence, which I accept and which is supported by documentary evidence, that thereafter Mr Jerry has experienced difficulties in holding down jobs for any extended periods and this has left him (Mr Casson) to provide the majority of the financial support required to maintain the parties’ household.

3. It is Mr Casson’s evidence that there were tensions in the parties’ relationship from its earliest stages.  He was concerned at Mr Jerry’s profligate spending and felt that he (Mr Casson) performed the vast majority of household tasks.  As observed earlier, it is my impression, from observing each of the parties in court, that they have different personalities.  Given Mr Casson’s fastidious nature, I accept his characterisation of the situation is likely to be accurate. 

4. Of particular concern to Mr Casson was the fact that Mr Jerry sold a modest share portfolio worth around $10,000.00 to fund a weekend holiday to Melbourne.  Mr Jerry does not dispute that this occurred and the money was largely dissipated.  Mr Casson was concerned about Mr Jerry’s mental health and arranged for him to see a psychologist.  I also accept Mr Casson’s evidence that he was generous towards various members of Mr Jerry’s family.

5. In (omitted) 2011, the parties purchased a home for themselves at Property C (“the Property C property”) to be their Adelaide home.  The purchase price was $595,000.00.  There is no dispute that Mr Casson borrowed the sum of $152,500.00 (omitted) from his parents to finance the purchase, although Mr Jerry now complains that he was not privy to the arrangement and would have preferred that Mr Casson’s parents not be involved in the matter.[27]  A formal loan agreement was drawn up to memorialise the transaction.[28]

   [27] See Mr Jerry’s affidavit filed 5 April 2017 at paragraph 25.1

   [28]  See exhibit C2 to the affidavit of Mr Casson filed 21 March 2017

6. The loan attracted interest of 6% and required interest to be paid, in the sum of $2,287.00 every quarter.  The first payment was due on 1 March 2011.  The principle was to be paid on or before 30 November 2020.  Mr Casson has provided evidence that he regularly paid the recurrent interest payments to his parents from March of 2011 onwards.[29]  In addition, I have been provided with extracts from the bank account of Mr Casson’s parents, which also confirm regular interest payments.[30]

   [29]  See exhibit B

   [30]  See exhibit A

7. Accordingly, in my view, there can be no doubt that the loan between Mr Casson and his parents, which was utilised to purchase the Property C property, is a legitimate one and therefore should be accounted as a joint liability of the parties.  The remainder of the funds required to finalise the purchase of the Property C property was secured by way of a mortgage from the (omitted) Bank.  Accordingly, in direct financial terms, Mr Jerry made no contributions towards the acquisition of this property. 

1. As indicated above, Mr Casson is a methodical and fastidious person.  One example of this was his regular practice of tabulating the parties’ financial resources, during their relationship, in a spreadsheet, which he would email to Mr Jerry, for his completion.  This spreadsheet included details of the level of the parties’ indebtedness in respect of their various home loans, including a loan, which was referred to as the mum and dad loan.  This is noted as being $151,000.00.[31]

   [31]  See exhibit C

d)     The purchase of Property B

1. In 2013, the parties purchased an investment property located at Property B “the Property B property” as an investment.  The purchase price was $380,000.00.  It was tenanted at a rent of $380.00 per week.

2. The parties utilised their equity in the Property A and Property C properties to secure Property B.  Accordingly, no direct capital sums were required to purchase it.  In order to maximise the negative gearing benefits, the property was registered solely in Mr Casson’s name.  

e)     The (country omitted) flat and the family trust

1. Mr Casson acknowledges that his parents have a family trust entitled the Casson Family Trust.  I accept that Mr Casson is neither a settlor nor a trustee of the trust, but both he and his brother, Mr B are beneficiaries of it.  In cross-examination, Mr Casson deposed that he had not received any income from the trust.  I have not been provided with a trust deed in respect of the trust.

2. Mr Casson’s evidence, which I accept, is that the (country omitted) flat was purchased by his parents in 1997.  He lived in the premises whilst he attended (omitted) School.  His parents now use it as a second home.  Mr Casson deposes that he pays none of the outgoings in respect of the property and rarely stays there. 

3. Accordingly, I accept that however Mr Casson’s interest in the property is characterised, it was acquired prior to the commencement of his relationship with Mr Jerry and during that relationship neither he nor Mr Jerry made any direct financial contributions towards its upkeep.

4. I accept that whilst his parents are alive and he continues to live in Australia, Mr Casson has no plans to use the property and his parents will not call upon him to make any financial contributions towards its upkeep.  I also accept that other members of his family resident in (country omitted), also use the property from time to time.  In these circumstances, it is Mr Casson’s position that although he has a half share in its legal ownership, in moral terms, the property belongs to his parents and brother.

5. It seems probable that, in some indeterminate time in the future, after Mr Casson’s parents have died, this moral interest will be extinguished and he and his brother, if they wish, will be able to realise their interest in the (country omitted) flat.  At this stage, Mr Casson will potentially come into funds, if he and his brother elect to sell the property or let it.

6. However, what will be the extent of this sum and when it will arise are matters which are hedged in uncertainty.  In these circumstances, I do not propose to include Mr Casson’s interest in the property directly in the parties’ table of assets. 

7. Rather, in my view, it is more appropriate that reference be had to this expectancy under the matters arising for the court’s consideration as a consequence of section 90SF(3), particularly those arising under placita (b), which focus on the income, property and financial resources of the parties concerned.

f)      Contributions during the relationship

1. Mr Casson was employed throughout the relationship.  As he acquired his (omitted) qualifications, necessarily his salary increased.  It took hard work and dedication on his part to become a (occupation omitted).  From time to time he worked long hours, particularly in the (employer omitted) in Brisbane. 

2. I accept throughout this process Mr Jerry provided him with some level of emotional support.  Mr Jerry was also prepared to move from Brisbane to Adelaide so that Mr Casson could pursue career opportunities in South Australia.  Undoubtedly, the parties’ relationship was, from time to time, a turbulent one.  However, notwithstanding the relationship’s ups and downs, I accept that each provided the other with the emotional support that comes from being part of a couple. 

3. Mr Casson’s salary was superior to that of Mr Jerry throughout the relationship.  I accept that he utilised his salary for joint purposes, during the relationship and this enabled him and Mr Jerry to enjoy a comfortable lifestyle together.  The parties made significant financial decisions, including the purchase of their various pieces of real property, jointly.

4. Mr Jerry’s paid employment, during the relationship, has been more periodic than has Mr Casson’s.  It has included periods of part-time employment and tertiary study.  At the time of the parties’ separation, he was working part-time.  His taxable income for the year ending 30 June 2015 was $26,172.00.  This compared to Mr Casson’s taxable income, for the same period, which was $409,441.00.

5. In addition, Mr Jerry has provided his tax returns for the financial years from 2012 until 2014.[32]  These include his taxable income for each year as well as that of Mr Casson, as his spouse.  The respective incomes are as follows:

   [32] See Exhibit 7

Mr Jerry	Mr Casson
$9,165.00	$277,201.00
$26,907.00	$330,047.00
$29,557.00	$388,010.00

1. I accept that, from time to time, Mr Jerry’s income was utilised for joint living expenses and assisted with the payment of the parties various recurrent mortgage liabilities.  Accordingly, Mr Jerry made significant financial contributions towards the parties greater good given his financial and employment circumstances.  I accept that these contributions were particularly marked, whilst Mr Casson was working away in Melbourne during 2011.  However, Mr Casson was the family’s primary breadwinner for the majority of the relationship. 

2. The parties have very different views regarding their various non-financial contributions, during their lengthy relationship.  Mr Casson deposes as follows:

   “During the entire relationship I was responsible for all of the cooking, grocery shopping and nearly all of the cleaning.  Mr Casson looked after the gardens but I mowed the lawns, took care of the pool and looked after some of the plants.”[33]

   [33]  See applicant’s affidavit filed 21 March 2017 at paragraph 121

3. Mr Jerry has deposed that he and Mr Casson did what we needed to do in order to ensure that their mutual household was maintained.  He concedes that Mr Casson was a better cook than him, but asserts that he prepared meals regularly.  In addition, he asserts that he did much of the routine housework, whilst Mr Casson did the laundry. 

4. One of the motivations for the parties acquiring the Property C property was that it had a large garden.  Both parties seem to have an interest in gardening – Mr Jerry described it as being his passion.  It is his case that he spent many hours landscaping and attending to the gardens at both the Property A property and at Property C, which Mr Casson appears to accept, whilst asserting he was also involved in more mundane acts of garden and pool maintenance.

5. In the absence of independent corroborating evidence, it is difficult, if not impossible, for the court to conduct some form of post-mortem into how the parties divided their household tasks and determine whether one of them did significantly more domestically than the other.  What is clear to me is that the parties operated a joint household and shared tasks to some extent.  It is clear to me that they were a couple who shared and enjoyed their home together, which included their two pet dogs. 

6. In all these circumstances, I am unable to conclude that one parties’ domestic contributions were decisively greater than the others.  Rather, each performed the tasks for which he had the greater aptitude and interest so that their shared household was maintained.  Both seem to have shared a pride in their home’s appearance, particularly its garden.

7. In retrospect both Mr Casson and Mr Jerry are likely to have a better recollection of the tasks performed individually and a jaundiced recollection of the domestic performance of the other.  This is a common phenomenon, in proceedings such as these, where the parties concerned have separated in poor and mistrustful circumstances.

8. One of the major factors, which has led to the parties now having very different views as to the domestic nature of their relationship is that it was deeply unhappy in its later stages.  In particular, Mr Casson asserts that Mr Jerry tormented him, both before and after their separation, a state of affairs, which rendered his performance of household tasks significantly more difficult. 

9. It is not necessary for me to outline the matters, which Mr Casson has alleged caused him to feel depressed and of little worth during the latter years of the parties’ relationship, given their sensitive and personal nature other than to quote the following passage from his affidavit.

   “[Mr Jerry] is a very emotional person with a very strong personality.  He was very controlling of my relationships with friends and family.  I tried to deal with this as best as I could by providing him as much emotional security as possible but it was just too much.

   For at least the last 5 years of the relationship, I had discussed how I was unhappy and wanted to leave the relationship.  Each time I brought this up, the respondent would threaten self harm.  Saying ‘If things don’t work out with you, then I have no hope with anyone else’.  ‘I will kill myself if you leave me.’”[34]

   [34]  See Mr Casson’s affidavit filed 21 March 2017 at paragraph 69-70

10. These are sensitive and emotional issues for both parties.  It is not my role to allocate responsibility as to why the relationship between them failed, however these matters have some relevance in order to place into context Mr Jerry’s behaviour around the time of the parties’ separation.  I accept that Mr Casson wished to leave the relationship for several years, prior to its ultimate demise, but felt unable to do so because of his fears of its impact upon Mr Jerry.

11. In order to establish that Mr Jerry’s behaviour is a relative factor in respect of the quantification of the parties’ respective domestic contributions, it will be necessary for Mr Casson to demonstrate that it had a “discernible impact” upon his contributions.  The Full Court has indicated that it will only be in a “relatively narrow band of cases” that any such adjustment should be considered on this basis.[35]

    [35]  See Kennon & Kennon (1997) FLC 92-757 at 84,294-5

12. In all the difficult circumstances of this case, I do not propose to differentiate between the respective home making contributions of the parties during their lengthy ten year relationship.  In particular, although I accept that the relationship was frequently conflicted and unhappy, I do not consider that there is sufficient evidence available to me to allow a conclusion that Mr Casson’s various and extensive domestic contributions were rendered consistently more difficult during the relationship. 

g)     The circumstances surrounding the parties’ separation

1. The parties’ relationship fell into terminal decline in late 2015.  Mr Jerry did not react well.  He threw Mr Casson’s laptop into the swimming pool, rendering it inoperative.  Mr Casson was compelled to purchase a new computer, at a cost of approximately $2,000.00, although his employer seems to have provided this sum.

2. More significantly, on 28 October 2015, Mr Jerry withdrew the sum of $95,534.04 from the parties’ joint bank account, drawing down on the home loan secured against the Property C property.  This altered the parties’ level of indebtedness to the (omitted) bank, from $316,398.97 to $411,933.01.[36]  On the same day, Mr Jerry resigned from his employment. 

   [36]  See annexure J 20 to Mr Jerry’s affidavit filed 5 April 2017

3. In November 2015, Mr Jerry damaged other items of property at the Property C property, including the back door; and the skimmer box on the swimming pool.  More significantly, he secretly and methodically poisoned a number of trees in the garden and cut panels out of a set of blinds, rendering them useless. 

4. I accept that at a minimum, it cost Mr Casson the sum of $6,820.00 to rectify this damage.  In addition, Mr Casson deposes that he has been informed that it will cost him approximately $4,000.00 to replace a number of large ornamental trees, which are slowly dying as a result of having been clandestinely poisoned by Mr Jerry.[37]

   [37]  See exhibit M

5. Throughout 2016, I am satisfied that Mr Jerry has waged a social media and email vendetta against Mr Casson.  In particular, he has sent electronic messages to professional bodies associated with Mr Casson and to other individuals alleging that he (Mr Casson) is a paedophile and user of child pornography. 

6. Needless to say, this conduct has been highly embarrassing to Mr Casson and has had the potential to do his professional reputation irreparable harm.  In my view, it is conduct which does no credit to Mr Jerry and which the court should condemn in the strongest terms. 

7. It was in this context that Mr Jerry clandestinely removed the (omitted) print, which he then arranged to be professionally photocopied.  The photocopy was then placed in the frame, which had contained the original (omitted) and returned to the wall at the Property C property.  The only conclusion that can be drawn from this behaviour is that Mr Jerry wished to deceive Mr Casson and retain a valuable item of property without his knowledge.  Mr Jerry concedes that the (omitted) has significant sentimental value for Mr Casson. 

8. Against this background, Mr Casson felt compelled to seek an injunction from the court restraining Mr Jerry from publishing on any social media, or by correspondence, any allegation regarding Mr Casson’s conduct or any reference to the parties generally.  Such an order was made by consent on 6 May 2016.

9. At separation, the parties operated a joint account.  It is common ground that in early January and February of 2016, immediately after the parties had separated, Mr Jerry withdrew a sum of $6,521.00, in three distinct withdrawals from this account, which he utilised for his own purposes.[38]  It is his case that the sum has largely been utilised in satisfying his living expenses.  Given his situation, at the time, this would appear to be more likely than not correct.

   [38] See Exhibit 5

10. It was around about this time that Mr Jerry elected to leave Adelaide and return to Brisbane.  The import of Mr Jerry’s evidence is that he had to leave Adelaide because of the emotional turmoil he was suffering at the time and accordingly had an urgent need to re-house himself.  In these circumstances, although the parties did not agree on the withdrawal, I do not propose to add back the sum into the parties’ pool of assets.  I do not think that it would be fair to do so, given the sum is long since gone.

h)     The parties’ major assets and level of indebtedness at separation – post separation conduct

1. The parties agree on the value of their three pieces of real property, which form the major portion of the asset pool;

   i)The Property A property  $700,000.00

   ii)The Property C property  $725,000.00

   iii)The Property B property   $450,000.00

   Total  $1,875,000.00

2. Documentary evidence has been provided by Mr Jerry as to the amount of mortgages secured against these properties as at the period October/November 2015, which is broadly congruent with the date of the parties’ final separation.[39]  The figures are as follows:

   i)Property C   $411,933.01[40]

   ii)Property A No 1  $428,700.00

   iii)Property B  $400,000.00

   iv)Property A No 2   $137,000.00

   Total  $1,477,633.01

   [39]  See annexures J 20 – 23 to Mr Jerry’s affidavit filed 5 April 2017

   [40]  As indicated above, this figure is somewhat misleading as it does not include the sum of $95,534.04, which Mr Jerry withdrew on 26 October 2015

3. Accordingly, at the time of the parties’ separation, putting aside the monies recently withdrawn by Mr Jerry, the parties had equity amounting to $397,366.99 in the three pieces of real property.  If Mr Jerry had not made the withdrawal of 26 October 2015, the amount would have been $492,901.03.

4. As previously indicated, the Property A property was rented out, both before and after the parties separated, at a weekly rental of $560.00 per week.  The lease in question expired on 22 September 2016 and the tenants concerned indicated that they did not wish to extend the lease.

5. Regrettably, this issue lead to further conflict between the parties, which they were unable to resolve without the court’s intervention.  Mr Casson wished to instruct an agent to find a new tenant for the property.  Mr Jerry did not agree.  In these circumstances, Mr Casson was fearful that Mr Jerry might resume occupation of the property but would not be in a position to pay the necessary mortgage repayments required. 

6. Against this background, on 28 September 2016, orders were made that, by way of interim property settlement, Mr Jerry would transfer his interests in the Property A property to Mr Casson, who would discharge the joint mortgage secured against the property.  It is in this context that Mr Casson deposes that he borrowed $200,000.00, from his parents, in order to assist him with the refinancing of the relevant property portfolio.

7. Again, Mr Casson and his parents executed a formal loan agreement in respect of the sum concerned.  The agreement is dated 29 January 2017 and required the repayment of the principle on or before 29 January 2027.  The loan attracted an annual interest rate of 5%, which was to be repaid quarterly in instalments of $2,500.00.[41]

   [41]  See annexure C 14 to Mr Casson’s affidavit filed 21 March 2017

8. As previously indicated, Mr Casson has provided a copy of his parent’s (omitted) bank account, which has been heavily redacted.[42]  Mr Casson has indicated that he personally performed the various redactions to the document concerned on the basis that he did not believe Mr Jerry was entitled to read the account in its entirety, given that it pertained to his parents’ financial affairs. 

   [42]  See exhibit A

9. The document indicates that on 7 February 2015, $200,005.00 was withdrawn from the account.  I have not been provided with any actual statement to indicate what occurred to this sum, particularly into which account it was banked.  It is however Mr Casson’s evidence that the sum was utilised by him to refinance the Property A property mortgage.[43]

   [43]  See transcript at page 24

10. During the course of the hearing, I asked Mr Casson to bring in a variety of documents relating to his financial affairs, which I believed would be of assistance to me.  These included a recent payslip;[44] recent business activity statements, related to his (business omitted);[45] an up to date statement of his superannuation;[46] and relevantly, in the context of the issue currently under discussion, copies of his loan statements, in respect of the three real properties.[47]

    [44]  See exhibit H

    [45]  See exhibit I

    [46]  See exhibits J & K

    [47]  See exhibit L

11. The loan documents indicate the following amounts owing, as at April 2017:

    i)Property C   $389,954.84

    ii)Property A No 1  $228,825.[48]

    iii)Property B  $400,000.00

    iv)Property A No 2  $137,000.00

    Total  $1,155,779.84

    [48]  The relevant statement indicates that the original loan amount was $429,000.00 with the thirty year term commencing on (omitted) 2017

12. Accordingly, the level of indebtedness in respect of the four mortgage loans concerned has reduced by approximately $321,000.00, in the period between the parties’ separation and the date of trial.  In these circumstances, I accept that Mr Casson received an advance of $200,000.00, which both he and his parents regarded to be a loan.  The money was clearly applied to the larger mortgage applying to the Property A property.  Otherwise, it would also appear to be the case that Mr Casson has been able to reduce the other mortgage debts by a sum of around $120,000.00.

1. The rationale behind the majority’s reasoning in C & C appears to be that, by reason of its special nature, it is often appropriate to assess contributions to superannuation interests separately to contributions made towards other more “conventional” assets. 

2. As the superannuation currently stands, Mr Casson holds $319,805.50 and Mr Jerry holds $122,438.41.  These sums represent 72.3% and 27.7% of the total superannuation respectively.  Clearly, in direct financial terms, Mr Casson solely contributed to the accumulation of his funds, which arise as a consequence of the length of his employment and the rate of his remuneration.  The same is true of Mr Jerry.  As a consequence of these matters, Mr Casson’s superannuation is appreciably larger than that of Mr Jerry – he has worked more regularly and for more money than has Mr Jerry.

3. The question for the court, at this second stage of deliberations, is whether other issues relating to contribution, which are indicative that there should be some alteration of these percentages.  I am not persuaded that there is any such issue. 

4. This is not a case in which issues to do with Mr Jerry’s domestic responsibilities dictated that he should curtail his hours of work.  Rather, I am satisfied that it was a matter of personal preference, which led him to work the hours which he did. 

5. As such, I am not persuaded that it would be just and equitable to alter the parties’ superannuation holding.  Different issues arise in respect of the prospective needs of the parties within this context, particularly given the scope of section 90SF(3)(f).

Step Three – section 90SF(3) – the prospective needs of the parties

1. I am now required to consider the various matters set out in section 90SF(3) and in particular to consider whether any further adjustment should be made in favour of either party. The section 90SF(3) factors are mainly, but not only, prospective in nature. They are as follows:

2. The matters to be so taken into account are:

   (a)the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship ); 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 de facto relationship 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)a 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 (4), 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)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

   (i)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 de facto relationship 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 90SM in relation to:

   (i)     the property of the parties; or

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

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

   (i)a party to the subject de facto relationship (in relation to another de facto relationship); or

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

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

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

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

   (i)     a party to the subject de facto relationship; or

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

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

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

   (q)any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and

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

   (s)the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and

   (t)the terms of any financial agreement that is binding on a party to the subject de facto relationship.

3. Paragraph (a) – the applicant is forty-one years of age.  The evidence available to me indicates that he enjoys good health.  As such, it does not seem unreasonable to assume that, all things being equal, he will be able to pursue his career for at least the next twenty years and possibly much longer. 

4. Mr Jerry is thirty-four years of age.  I accept that he is a psychologically vulnerable person.  I reach this conclusion on the basis of Mr Casson’s evidence and the fact that, in the past, Mr Jerry has been referred for psychological and psychiatric treatment.  However, I have not been provided with any formal diagnosis in respect of Mr Jerry and so have little evidence of the impact of these matters, if any, on his income earning capacity. 

5. It is clear that Mr Jerry did not react well to the parties’ separation.  In the circumstances, it was perhaps prudent of him to have returned to Brisbane when he did as he does not appear to have been coping well in Adelaide.  I would hope that he will be able to adjust to his changed circumstances in due course.  In addition, at least initially, he was able to regroup, to some extent, and resume his old position at (employer omitted).

6. One of the issues arising in this case is how readily Mr Jerry will be able to adjust to his changed circumstances, particularly in terms of returning to either the workplace or to full time study.  My impression of him is of an emotional person who reacts to difficult situations impetuously.  One example of this is his recent decision to cease his employment in Brisbane and travel overseas.  I have not been provided with any details whatsoever of what are the likely implications of such a move in terms of his future career opportunities. 

7. My impression of Mr Casson is of a conscientious and reliable professional person who is dedicated to his career.  Mr Jerry does not share these personality traits.  He has not had the same amount of professional success or employment stability enjoyed by Mr Casson.  Although Mr Jerry has indicated a desire to complete tertiary studies, it remains uncertain to me whether he will be likely to complete his studies.  In addition, although Mr Jerry has some technical qualifications for which there is likely to be a demand in the (omitted) sector, I do not know whether he will be minded to utilise these skills or extend them in the short to medium term.

8. For these reasons, Mr Jerry’s future prospects remain more clouded than those of Mr Casson.  In general terms, it is difficult to prognosticate about his future, particularly how robust his emotional health is likely to be.  However, the fact remains that he has not provided any definitive prognosis in respect of these issues.  Accordingly, in generic terms, I expect that he is likely to be able to pursue some form of employment for the next thirty odd years, particularly as an (occupation omitted). 

9. Paragraph (b) – this is the most important consideration arising under the section.  Mr Casson by dint of his (omitted) qualifications is able to earn a salary in excess of $400,000.00 per annum.  His employment is secure.  On the other hand, at best, Mr Jerry is able to earn approximately $70,000.00 per annum as an (occupation omitted). 

10. During the course of the parties’ relationship, Mr Jerry has attempted to obtain skills in other areas and embark upon more advanced areas of tertiary study.  As yet, these efforts have not paid dividends for him.  As such, I am satisfied that there are some shadows falling over his future employment prospects. 

11. Mr Casson does not face any such challenge.  His financial security seems assured.  At present, there is a marked discrepancy between the employment and financial prospects of the parties, which is unlikely ever to be bridged.  In addition, Mr Casson’s interest in the (country omitted) flat will most likely crystallise at some stage in the future.

12. It has been said, by the Full Court, that the most valuable “asset” a party can take out of a marriage (and by necessary implication a de facto relationship) is “a substantial, reliable income-earning capacity”.[62]  In this case, the evidence is unequivocal that Mr Casson has such an asset in spades, but Mr Jerry does not.  In my view, this is a most significant factor, which favours Mr Jerry at this stage of the court’s deliberations.  Mr Casson does not seriously demur. 

    [62]  See Clauson & Clauson (1995) FLC 92-595 at 81,911

13. Mr Casson will leave these proceedings with the three pieces of real property, which the parties acquired during their relationship.  The reality is that Mr Jerry has no means of servicing any of the relevant mortgages associated with those properties.  All things being equal, the properties will appreciate in value. 

14. The investment properties will yield either income or some form of tax relief for Mr Casson.  In addition, Mr Casson enjoys the benefit of being able to borrow significant sums from his parents on favourable terms.  He has the financial resource of the (country omitted) flat.  In all these circumstances, his financial future appears to be rosy.

15. As a consequence of these matters and the manner in which the parties have presented their respective cases, the court will, in due course, calculate an amount of cash, which Mr Casson must pay to Mr Jerry to acquire his interests in the three properties concerned.  The evidence indicates that Mr Jerry is not particularly adept at managing money, particularly significant sums.  To utilise the phraseology of Ms Lewis, counsel for Mr Casson, money slips through his fingers.

16. It seems unlikely that Mr Jerry will utilise his entitlements to safe-guard his future financial security.  On the other hand, Mr Casson will retain assets which have the potential to appreciate in value, over time, whilst he pays down his debt.  For all these reasons, Mr Casson’s financial future is more or less assured, whilst Mr Jerry’s is not necessarily so.  This is a reflection of both Mr Casson’s personality and his professional skills.

17. Paragraph (c) – this is not a relevant consideration.

18. Paragraphs (d) & (e) – during the course of his evidence, Mr Casson indicated that he had commenced a serious relationship with another person who had recently moved into his home.  This person is employed as a (occupation omitted) earning an annual salary, as estimated by Mr Casson, of somewhere between $50,000.00 and $60,000.00. 

19. The person does not pay board to Mr Casson but contributes 50% towards the cost of utilities.  He does not pay any sums referable to the mortgage on the Property C property.  It was Mr Casson’s evidence that he and the person concerned were proceeding cautiously with their relationship.  Mr Jerry has not re-partnered.  As such, he has no responsibility to support any other person.  Nor, it would seem, does Mr Casson at this early stage of his relationship. 

20. As previously indicated, Mr Casson’s statement of financial circumstances and his evidence generally, indicates that he is able to garner a significant surplus from his income each week after his necessary recurrent expenses have been paid.  Mr Jerry is not in the same fortuitous position.  His expenditure exceeds his income.  Although I have not been provided with any contemporaneous evidence arising from his recent resignation, his financial situation may well have deteriorated. 

21. Both parties face significant legal costs.  Mr Jerry’s are more significant than those of Mr Casson, but he has less capacity to pay them.  Mr Casson has been able to pay a significant component of his fees as he has gone along.  As a consequence of these matters, in my view, Mr Jerry faces an uncertain financial future. 

22. On the other hand, Mr Casson has been able to save, from resources accumulated since separation, a six figure sum, which he intends to utilise to pay out both his legal fees and the sum calculated by the court to pay out Mr Jerry.  As such, he hopes to be in a position which will not require him to borrow further or sell any of the real properties.

23. Paragraph (f) – both Mr Casson and Mr Jerry are many years away from permanent retirement from the workforce.  As a consequence, both have time to add to their respective stores of superannuation and make provision for their financial support in retirement.  However, Mr Casson faces that prospective task from a far more secure position than does Mr Jerry.

24. Mr Casson has a reasonable nest egg in superannuation and is able to contribute more to it periodically than Mr Jerry.  As such, due to the forces of compound interest, his superannuation will grow exponentially faster than that of Mr Jerry.  Over the ten years of the parties’ relationship, these factors have ensured Mr Casson’s superannuation accumulation has outpaced that of Mr Jerry.  This trend will obviously become more enhanced as time unfolds.  These are all factors which favour Mr Jerry.

25. Paragraph (g) – it is inevitable that the end of the parties’ relationship, given the substantial discrepancy in their income earning capacity, dictates that there will be a significant decline in Mr Jerry’s standard of living.  The import of this paragraph is to ensure that the financial privations, arising at the end of the relationship, do not fall disproportionately or unfairly, on one party more than the other. 

26. Up to this stage, Mr Jerry has enjoyed a comfortable lifestyle, in a well-appointed home.  Mr Casson is likely to continue to enjoy a high standard of living for the foreseeable future.  The same cannot be said for Mr Jerry, whose financial future is beset with uncertainty.

27. This was particularly so in the period following the parties’ separation.  Mr Jerry left Adelaide, returning to Brisbane.  It was necessary for him to re-accommodate himself.  He was not disposed to live with his mother.  Rather, he preferred to find accommodation for himself.  Given the nature of his lifestyle prior to the parties’ separation, this does not seem to me to be an unreasonable attitude to take. 

28. More open to criticism is Mr Jerry’s conduct in unilaterally removing a significant sum of money from the parties’ re-draw facility to fund his removal and related costs.  As previously indicated, the effect of this withdrawal was for Mr Casson, in effect, to subsidise Mr Jerry’s living expenses in the period following separation.  Again, Mr Jerry is potentially open to criticism for not utilising that sum particularly prudently. 

29. Mr Jerry’s future plans are hedged with uncertainty.  He has not indicated what he will do with any monetary judgment received by him as a consequence of these proceedings.  On the other hand, Mr Casson is likely to pay down debt and otherwise maintain his property portfolio.  Accordingly, Mr Casson is far better placed to put the financial vicissitudes arising from the end of the parties’ relationship, behind him far quicker than is Mr Jerry, who is likely to struggle financially at least in the short to medium term. 

30. The purpose of these proceedings is not to equalise the parties’ financial situations but rather to divide assets and resources between them, according to both contributions and considerations of what is equitable, in all the circumstances prevailing.  It would not be fair for one party to live in penury, whilst the other is secure and comfortable, particularly after a relationship of reasonable length.  Mr Jerry has an entitlement to a reasonable standard of living.  Accordingly, this is a factor which favours him, to some degree. 

31. Paragraphs (h), (i), (j), (k), (l) & (m) – the considerations arising under these various paragraphs are not particularly relevant to this case.  I do not consider that the relationship between the parties has unduly affected the earning capacity of either of them.  Rather, Mr Jerry is able to return to his employment as an (occupation omitted), which was the position he had when the parties met. 

32. I have already discussed the circumstances surrounding Mr Casson’s re-partnering.  Mr Jerry has not presented his case on the basis that he requires some form of maintenance to pursue additional qualifications for himself. 

33. Paragraph (n) – as a consequence of these proceedings, Mr Jerry will receive an award of relationship capital.  Mr Casson, depending on the extent of this sum, will not have to sell any of the real property concerned and is likely to be able to raise the sum required without undue difficulty.  As such, he is likely to be able to recover from the financial vicissitudes arising from these proceedings relatively quickly.

34. How Mr Jerry deals with his settlement monies is, of course, a matter for him.  The sum in question is likely to provide him with some measure of financial security, particularly if he is able to maintain some form of employment.  If he elects to return to tertiary studies, it will also provide him with some form of nest egg for future exigencies.

35. Paragraph (o), (p) & (q) – these provisions are not relevant.

36. Paragraph (r) – in Ferguson & Ferguson[63] the Full Court of the Family Court held that section 75(2)(o) [the equivalent of section 90SF(3)(r)] was to be read ejusdem generis with the other matters listed in the section 75(2) [the equivalent of section 90SF(3)], which enabled the court to bring into account “conduct which has an economic significance in the parties’ dealing with each other or the property in dispute.”

    [63]  See Ferguson & Ferguson (1978) FLC 90-500 at 77,607

37. As previously discussed, there are several issues arising in the case, which hold economic significance for the parties now, as a consequence of their past conduct towards one another.  Considerations of justice and equity require that they be taken into account in some way. 

1. Mr Jerry’s actions, in the period immediate post separation, had the effect of reducing the parties’ pool of assets by a significant amount – somewhere slightly in excess of $100,000.00.  I accept that the money is largely spent.  It has not been traced accurately into other assets, which have been valued for the sake of these proceedings, particularly given that household items retained by Mr Casson have also not been subject to valuation.

2. As indicated above, I do not think that it would be fair to approach these matters on a strict dollar for dollar basis, given the disparity in the parties’ personal financial circumstances and the fact that the sums in question are now notional in nature – in the sense that Mr Jerry has utilised them for his own benefit in the circumstances of austerity arising since the parties separated.  However, the sums are of such magnitude that some reference must be made to them in the court’s deliberation.

3. In addition, Mr Jerry has damaged some items of property to be retained by Mr Casson and put him to expense.  The purpose of these proceedings is not to punish Mr Jerry for his past failings, which arose when he was at a low emotional ebb.  However, given his actions have a financial import, they cannot be overlooked.

4. I have already made reference to the (country omitted) flat.  Mr Jerry has made no direct or indirect contribution towards its acquisition.  Mr Casson currently does not benefit from it.  At some indeterminate time in the future he may.

5. For reasons, chiefly his qualifications and level of remuneration, Mr Casson will always be better off financially than Mr Jerry.  The (country omitted) flat is one further example of this.  I have attempted to take all these matters into account.  However, as previously indicated, my role is to divide relationship assets fairly not necessarily equally.  More factors are at play in this exercise.

6. Finally, it is necessary for the court to be mindful of the extent of Mr Jerry’s unpaid legal fees, which will have to be paid by him sooner rather than later.  The only source of the funds for the satisfaction of these fees is the monies likely to be received by him from Mr Casson. 

7. In these circumstances, the court must be cautious about the potential for any lump sum payment made in Mr Jerry’s favour to be diminished because it will be eaten away in legal costs.  This concern is heightened by the fact that Mr Casson, by virtue of his superior income and frugal disposition has been largely able to pay his legal fees as they have arisen.

Conclusion on section 90SF(3) factors

1. Overall these factors favour Mr Jerry, particularly in respect of the disparity in the parties’ income earning capacity.  However, Mr Jerry does have an income earning capacity, which is essentially unaffected by the parties’ relationship.  He remains able to work as an (occupation omitted), which was his position when the parties met.  I assess him as being entitled to receive a further 10% by way of adjustment as a result of these factors.

2. However, I propose to reduce this allowance by 5% as a consequence of issues relating to the premature distribution of assets occasioned by his withdrawal of joint monies at separation and his sole utilisation of them, together with his waste of assets.  I appreciate that such an allowance represents a small proportion of the asset pool as I have calculated it.

Conclusions

1. In Steinbrenner & Steinbrenner,[64] Coleman J observed that in proceedings dealing with the exercise of discretion, whether in relation to the assessment of disparate contributions in a de facto property case or assessment of damages in a personal injury case, there comes a point at which it is necessary for the court to make a leap from words to figures.

   [64]  See Steinbrenner & Steinbrenner [2008] Fam CAFC 193 at [234]

2. It is now the point of the proceedings at which the court must make such a leap and turn to the tin tacks of what each party will receive, as a consequence of these deliberations, particularly how and in what form.  This leap from abstraction to the concrete must be undertaken in terms of what is just and equitable to each of the parties concerned.

3. I appreciate the artificiality, which must arise from the court talking in percentage terms.  After all what matters to the parties is not percentages per se but what orders actually mean in terms of dollars and cents and what items of property are retained and what has to be realised.

4. Mr Casson wishes to retain all the parties’ real estate and the debt associated with them, including the debts owed to his parents.  Apart from his car and the debt related to it, Mr Jerry takes no specified assets from the relationship. 

5. In generic terms, I have reached the conclusion that Mr Jerry is entitled to 30% of the value of what is to be characterised as a modest pool of property.  As I have already reflected, the parties do not seem to have been able to translate Mr Casson’s significant wage into concrete assets.

6. 30% of the net assets is represented by the sum of $124,956.16 – a sum not far removed from the amount Mr Casson has been able to save in the period since the parties separated.  In all the circumstances of this case, including when I bear in mind the sums already received by Mr Jerry, this seems to me to represent a fair and equitable outcome for both him and Mr Casson. 

7. When I perform a mental calculation involving a property pool expanded by the premature distribution of assets in Mr Jerry’s favour, with the application of a larger percentage, with Mr Jerry’s entitlements then reduced by the amounts already received by him, it results in him receiving a much lesser sum.  Bearing in mind the uncertainty framing his financial future and the erosion of the figure by legal fees, I do not consider this opposing scenario to be fair.

8. At the end of the case, what is glaringly obvious is that Mr Casson leaves the lengthy and significant relationship between the parties in good shape financially.  He has assets and above all a reliable and significant source of income for the remainder of his professional life.  Mr Jerry is not so well placed. 

9. However, if he chooses, $125,000.00 will enable him to put a significant deposit on a home or enable him to fund a course of advanced study to up-grade his skills and so enhance his income earning capacity.  In the short term, it provides him with a measure of economic security.

10. Given the current proportion of the parties’ respective superannuation holdings, I do not consider that it would be just to further alter those holdings, given the findings I have made about the parties’ respective prospective needs.

11. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding two hundred and eighty-one (281) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:     15 December 2017