Chapman and Chapman
[2016] FCCA 732
•20 January 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHAPMAN & CHAPMAN | [2016] FCCA 732 |
| Catchwords: FAMILY LAW – Property proceedings. |
| Legislation: Family Law Act 1975 (Cth), ss.4AA, 75, 79, 105A, Part VII, Evidence Act 1995 (Cth), s.128 |
| Briginshaw & Briginshaw (1938) 60 CLR 336 Kennon (1997) 22 Fam LR 1 Stanford & Stanford (2012) 293 ALR 70 Hickey & Hickey (2003) FLC 93-143 Bevan & Bevan [2013] Fam CAFC 116 McLusky & McLusky [2014] FamCA 93 Todd & Todd [2014] FamCA 101 Adamson & Adamson [2014] FCCA 73 In the marriage of Lee-Steere (1985) FLC 91-626 In the marriage of Ferraro (1993) FLC 92-335 In the marriage of Clauson (1995) FLC 92-595 In Whinton & Whinton [2014] FamCA 102 Kowaliw (1981) FLC 91-092 Chang & Su (2002) FLC 93-117 Black & Kellner (1992) FLC 92-287 Giunti & Giunti (1986) FLC 91-759 Weir & Weir (1993) FLC 92-338 Pierce & Pierce (1999) FLC 92-844 Robb & Robb [1994] FamCA 136; (1995) FLC 92-555 Esposito & Costa [2012] Fam CAFC 118 |
| Applicant: | MS CHAPMAN |
| Respondent: | MR CHAPMAN |
| File Number: | NCC 2379 of 2013 |
| Judgment of: | Judge Myers |
| Hearing date: | 11 and 12 December 2014 |
| Date of Last Submission: | 1 September 2015 |
| Delivered at: | Newcastle |
| Delivered on: | 20 January 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Mark Graham Solicitor |
| Solicitors for the Respondent: | Brennan Garrick Lawyers |
THE COURT ORDERS THAT:
All previous orders be discharged.
The husband pay to the wife within 42 days the sum of $17,200.13.
A base amount of $5,652.88 is allocated as is required pursuant to s.79MT(4) of the Family Law Act 1975 to the wife out of the interest of the husband’s interest in (omitted) Super Member number (omitted).
In accordance with paragraph s.90MT(1)(a) Family Law Act 1975 the wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and the entitlement of the husband and the entitlement of such other person to whom a splittable payment may be made to payments out of the interest of the husband in (employer omitted) Super is correspondingly reduced by force of this order.
The Trustee of (employer omitted) Super (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to calculate in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement for the wife created by these orders and pay the entitlement whenever the Trustee makes a splittable payment out of the interest of the husband in (employer omitted) Super.
These orders have effect from the operative time and the operative time is four business days after service of a sealed copy of these orders on the Trustee.
After service of the payment split notice pursuant to r.7A03 of the Superannuation Industry (Supervision) Regulations 1994 the wife shall do all such things and sign all such documents as may be necessary including but not limited to exercising her request pursuant to r.7A06(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer the transferable benefits out of the husband’s interest in (employer omitted) Super to a fund of the wife’s choosing in accordance with r.7A12 of the Superannuation Industry (Supervision) Regulations 1994.
IT IS NOTED that publication of this judgment under the pseudonym Chapman & Chapman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2376 of 2013
| MS CHAPMAN |
Applicant
And
| MR CHAPMAN |
Respondents
EX TEMPORE` REASONS FOR JUDGMENT
This is a matter in which the applicant wife, Ms Chapman, referred to as the wife, makes application for a property settlement pursuant to section 79 of the Family Law Act1975. The applicant wife caused to be filed her initiating application in the Newcastle registry of the Family Court of Australia on 24 September 2013 seeking orders for property settlement and interim spousal maintenance.
On 24 October 2013 Austin J, sitting in the Newcastle registry of the Family Court of Australia, made interim orders that the respondent husband, Mr Chapman, herein after referred to as the husband, pay to the wife spousal maintenance in the sum of $450 per week. On 12 March 2014 Registrar McFadden made orders transferring the proceedings to the Federal Circuit Court of Australia.
On 24 June 2014 the husband caused to be filed an Application in a Case document that sought orders in the following terms: that the order for spousal maintenance made by the Family Court of Australia at Newcastle on 24 October 2013 be discharged from that date to which it currently stands paid. The Application in a Case came before the Court on 18 August 2014. On that date parties entered into the following orders by consent:
a)that the order for spousal maintenance made in the Family Court of Australia at Newcastle on 24 October 2013 be suspended from the date to which it currently stands paid until such time as the husband commences full time employment being not less than 38 hours per week;
b)that the husband on obtaining full time employment being not less than 38 hours per week notify the wife in writing of the name and address of his employment, commencement of the employment, nature of the employment and his gross salary within seven days of commencing employment;
c)No order as to costs.
On 28 October 2014 the wife caused to be filed an application for divorce. The application for divorce came before Registrar Carney for hearing in the Federal Circuit Court of Australia on 11 November 2014. On that day a divorce ordered was granted to be effective within one month. At the final hearing the wife relied upon the following documents in support of her case:
a)An initiating application filed 24 September 2013;
b)Financial Statement filed 9 October 2014;
c)Affidavit sworn by the wife on 20 September 2013 and filed 24 September 2013;
d)Affidavit sworn by the wife filed on 9 October 2014;
e)Affidavit of Dr S;
f)Outline of case document;
g)Amended submissions for the wife received 6 July 2015;
h)Submissions in reply for the wife received 1 September 2015.
A summary of the final orders the wife seeks, as contained in her amended submissions, are set out as follows:
(1)that the husband pay to the wife within two months the sum of $105,920 by way of property settlement;
(2)Orders providing that should the husband fail to make the payment to the wife, the husband to sell a home owned by him at Property O and from the proceeds the sum of $105,000 be paid to the wife and the balance to the husband;
(3)that the husband pay to the wife, by way of splitting order, from the husband’s superannuation entitlements with the (employer omitted) Super, member number (omitted), the sum of $45,000;
(4)that the parties otherwise retain all other property, chattels and the like that are in that parties’ name or that parties’ possession.
And, essentially, what might be described as orders pursuant to section 105A of the Family Law Act1975.
At the hearing the husband relied upon the following documents in support of his case:
a)A response to initiating application filed 6 November 2013;
b)Financial statement sworn by the husband and filed 5 November 2014;
c)Affidavit affirmed by the husband and filed 5 November 2014;
d)Case outline document for the husband;
e)Written submissions for the husband e-filed 14 August 2015.
The husband seeks final orders as is set out in his outline of case document that provide;
a)there be no adjustment of assets between the parties and that each party retain their respective assets and liabilities and the husband retain his superannuation.
The Court has heard and considered the evidence-in-chief and cross-examination of the parties and has considered the exhibits tendered into evidence during the course of the hearing.
By way of background, the wife was born on (omitted) 1968 and is 48 years of age. The husband was born on (omitted) 1950 and is 66 years of age. It is agreed between the parties that the parties met face to face for the first time in (country omitted) in the (country omitted), (known as the (country omitted)), shortly after the husband’s arrival into the (country omitted) in or on about (omitted) 2007.
At paragraph 3 of the husband’s affidavit sworn 15 November 2014 he deposes that in (omitted) 2007 he met with the wife and that they had dinner together. The husband states that the wife advised him she was working in a (employer omitted) in (country omitted). The husband states at paragraph 3 of his affidavit:
I did not see Ms Chapman again until she moved to (country omitted) in (omitted) 2007.
At paragraph 4 of the husband’s affidavit he states:
We commenced a de facto relationship in (omitted) 2011 in (omitted) and married on (omitted) 2012 in (omitted), a suburb some 35 minutes south of (omitted).
By contrast, the wife states in her affidavit sworn 20 September 2013, at paragraph 5, that:
Mr Chapman and I began a relationship on (omitted) 2007.
At paragraph 15 of the wife’s affidavit she concedes that at the commencement of the parties’ relationship the husband was still married to his previous wife. The wife further deposes that at the time of the commencement of the relationship the husband owned four properties and a car with his former wife. The wife deposes that the husband and his former wife separated in April/May 2010 and thereafter had a property settlement whereby the husband received two properties, being a property at Property E and another at Property M.
The husband deposes that on (omitted) 2000 he married a person, Ms W. At paragraph 9 of the husband’s affidavit he deposes that as at 2007 he remained married to Ms W and had been living with her together in what he describes as “our unit in Property C”.
During the course of what the Court will describe as lengthy but meticulous cross-examination found at pages 121 to 129 of the transcript of proceedings dated 12 December 2014, the husband gave evidence to the effect that he did not see the wife between (omitted) 2007, when they first had dinner together, until (omitted) 2007; that the husband had a casual sexual relationship with the wife from (omitted) 2007 until (omitted) 2008; that the wife did not move into the husband’s apartment until (omitted) 2007; that the husband and wife were not a couple during the year they both resided in the (country omitted) from (omitted) 2007 until (omitted) 2008; that the husband never became friends with the wife’s friends and that the husband did not know who organised a birthday party for him in (omitted) 2008.
The husband gave evidence in cross examination that he and the wife had not attended a gym together whilst in (country omitted); that a relationship did not grow between the parties; that the parties were not a couple throughout the duration of the husband’s stay in (country omitted); that the husband did not introduce the wife to any of his friends as a partner whilst in the (country omitted); that there was no tearful parting of the husband and wife at an airport when the husband left the (country omitted) in or on about (omitted) 2008 and, in fact, the wife did not attend the airport when the husband left.
Following the line of cross-examination found at pages 121 to 129 of the said transcript, the husband was asked to read a document taken from subpoena packet number 14. The document was that of a statutory declaration made by the husband on 29 March 2011. After being asked a few questions about the statutory declaration, counsel for the husband requested the Court to issue a certificate to the husband pursuant to section 128 of the Evidence Act1995. A certificate was subsequently issued.
Cross-examination of the husband thereafter continued. The husband conceded the statutory declaration to the Commonwealth Government and the contents of the said statutory declaration had been what he described as embellished. An extract taken of the statutory declaration forming exhibit G in the proceedings as set out below and states:
I, Mr Chapman of Property L of New South Wales, employed by (employer omitted) as the (occupation omitted), do formally and sincerely make the following statutory declaration under the Statutory Declarations Act 1959. I make this statement in support of my sponsor of my partner, Ms Chapman, for a partner visa. I met Ms Chapman on the internet dating site called (omitted) during (omitted) 2007.
I was about to take up a position of employment in the (country omitted), and wanted to meet a nice lady. We chatted along and I got to like her and wanted to meet her. I arrived in (country omitted) and arranged to meet Ms Chapman on (omitted) 2007. We agreed to meet in the foyer of my work building but for some reason we ended meeting in the lobby of the hotel where I was billeted. She accompanied me to do some shopping at the (omitted) and later had dinner.
Immediately I felt something for Ms Chapman and I liked and felt comfortable with her. I stayed one week in (country omitted) and later I moved to (country omitted). Ms Chapman moved in with me and we lived as a couple and did things as a couple. Ms Chapman attended the gym. I went too as an associate with her friends who became my friends. I helped her obtain a job with an associated company that I worked with called (employer omitted).
Our relationship grew and I was pleasantly surprised when Ms Chapman arranged a birthday party for me with all of my closest friends around. It was most unexpected but I was brought to tears over the fact that somebody would do such a nice thing for me. That was on (omitted) 2008. We had many happy times together and explored the (country omitted). We went camping out of town and visited different (omitted) around the (country omitted) during the weekends.
My position with the company I worked for, (employer omitted), and I was to head up a new project. I was not happy on return to Australia to work with (employer omitted) based in Sydney, Australia. Although separating from Ms Chapman was painful and full of tears, I knew in my heart and mind that we would be together again. This was on (omitted) 2008. We kept in just about daily contact by email, text and phone call. She remained in the (country omitted) and she had an employment contract in the company.
A few months after I left the country I managed to organise Ms Chapman to visit Australia on a business visa in (omitted) 2008 with one of her colleagues and have their training in my company with another associate company. That meeting after our first separation in the (country omitted) proved that our love was still strong between us. Our contact continued and I visited (country omitted) again in (omitted) 2009 where we spent 10 days together. Returning to Australia was harder this time but we endured and kept our daily contact. The next time we met was in the (country omitted) on (omitted) 2010.
And the statutory declaration goes on.
The strength of the husband’s argument with respect to the date of commencement of the parties in a relationship is eroded by virtue of the contents of the husband’s statutory declaration. The husband conceded in cross-examination that although he had suggested that the parties had only had dinner together on the day they met in person, they did actually commence a sexual relationship on that date.
In a similar vein, the wife was cross-examined on the contents of an email she conceded she forwarded to the husband’s then wife, Ms W. Annexed to the husband’s affidavit and marked with the letter C1 is a copy of the email forwarded from an email address (omitted) to Ms W. The email dated (omitted) 2010 is titled with the subject Re Congratulations and reads as follows:
Hi there, thank you so much!!! I’m so sorry I was unable to send an email to you for so long time. So many things happened. I quit my job in (country omitted) and went to (country omitted) where I met my fiancé by accident. He is an (nationality omitted) but he was born and raised in the (country omitted) and we are still on the planning process for the wedding as we both want our loved ones to witness our special day and make it memorable for everybody. We are undecided yet on where the wedding will be held as we are having a hard time arranging the schedules and availability of all the family members.
Are we going to hold it in the (country omitted) or in the (country omitted)? We are also considering the convenience of both parties. So what’s up with you guys? Are you still working? How's Ms Z? Give my love and kisses to her. By the way, a belated happy (omitted) New Year. I celebrated here in (country omitted). I miss you guys. I really do. I miss our chat, chat, chat. (Insert smiley face) Hope to hear again from you. More love, Ms Chapman.
During cross-examination of the wife – found, at pages 59 and 62 of the transcript of proceedings of 11 December 2014, the wife conceded that she forwarded the email dated (omitted) 2010 to Ms W but had lied within the contents of the email in that she was not engaged and getting married to the (nationality omitted) gentleman referred to in the email. Rather, the wife gave evidence that she was having a relationship with an (nationality omitted) gentleman whilst in (country omitted).
Following the wife giving evidence that she had a relationship with an (nationality omitted) gentleman she provided the following answer to a question put to her in cross examination:
Our relationship, you know, the long distance, there isn’t – in every relationship there’s on and there’s off relationship. And one time it meant because he is always calling me in (country omitted). He’s always – we’re always communicating and one time I told him I don’t want to be a mistress the rest of my life. I want to have my own, you know, what I can call a husband. And he said it’s okay with him as long as he has to give me – he told me it’s okay as long as you will not ask me before get to love you and not to love you anymore.
Counsel for the husband then asked the following question:
Are you saying that you wanted Mr Chapman to marry you at that point of time?
The wife responded saying no.
Counsel for the husband clearly became confused by the answer given by the wife, as did the Court. Counsel for the husband the asked:
I’m sorry. I misunderstood you. You said you didn’t want to be a mistress.
The wife responded stating:
I don’t want to be a mistress the rest of my life.
The wife proceeded to provide further evidence stating:
I want to have –
Counsel for the husband interrupted the wife, pre-empting her, stating:
Because he is still married to Ms W, yes?
The wife responded saying:
Yes, so I just told him that if ever I’m going to meet somebody, you know, because I’ve already met that guy and I told him about it.
Counsel then asked:
The (nationality omitted) guy?
The wife then stated yes.
When the wife was asked by counsel for the husband whether she was thinking about getting married to the (nationality omitted) gentleman, the wife answered stating:
I don’t know.
What is not controversial in the proceedings is that the husband resided in the (country omitted) from about (omitted) 2007 until (omitted) 2008, leaving the (country omitted) for about a two week period in (omitted) 2008 and returned to Australia in (omitted) of 2008. The wife remained living in the (country omitted) until about (omitted) 2009, relocating to (country omitted) and then the (country omitted) where she remained until (omitted) 2011 when she came to Australia and commenced living with the husband.
At paragraph 4 of the husband’s affidavit he deposes that he and the wife commenced a de facto relationship in (omitted) 2011 in (employer omitted) and married on (omitted) 2012 at (omitted). Similarly, at paragraph 11 of the wife affidavit’s affidavit she deposes that on (omitted) 2011 she travelled with the husband from the (country omitted) to Australia and, in her words, “we lived here since that date”. While the court does not accept the evidence of the husband given to the court with respect to the way in which the parties conducted their relationship whilst in the (country omitted) and then post the husband leaving the (country omitted), the evidence of the wife with respect to the parties remaining in a de facto relationship from (omitted) 2007 until they married is also problematic.
The court finds that a relationship of sorts existed between the parties, that it had commenced at about the time the parties first met in (omitted) 2007 and continued up until the time the parties left the (country omitted) together in (omitted) 2011. One of the questions to be determined in these proceedings is as at what date should the court find the parties’ relationship, for the purposes of the property division, commenced.
To determine this issue it is helpful to consider at what point, if any, during the parties’ relationship did a de facto relationship within the meaning of section 4AA of the Family Law Act1975 exist, if ever. The definition of what constitutes a de facto relationship is found at section 4AA and provides:
Meaning of de facto relationship:
(1) a person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family; and
(c)having regards to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Working out of a person has a relationship as a couple, those circumstances may include any or all of the following: the duration of the relationship; the nature and extent of their common residence; whether a sexual relationship existed; the degree of financial dependence or interdependence, and any arrangements for financial support between them; the ownership, use and acquisition of their property; the degree of mutual commitment to a shared life; whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship; the care and support of children; the reputation and public aspect of the relationship.
It is proposed by the wife the parties were in a relationship prior to being married and the parties are not related. The crux of this line of investigation begs the Court to consider, when having regard to all the circumstances of their relationship did the parties commenced a relationship as a couple living together on a genuine domestic basis. While it is clear the wife sought a relationship with the husband as a couple between (omitted) 2007 until the parties left the (country omitted) together in (omitted) 2011, it remains necessary to consider the matters as set out at section 4AA, subparagraph (2).
The parties met in (omitted) 2007 and, as mentioned before, a relationship of sorts endured between the parties until they married in (omitted) 2012. The Court accepts the evidence of the wife with respect to her residence together with the husband in the (country omitted). What is clear from the evidence, however, is that the nature and extent of the parties’ common residence waxed and waned, but more often waned from the time the parties met face to face in (omitted) 2007, then with the parties living in separate countries following the husband’s departure from the (country omitted), until the parties ultimately left the (country omitted) together in 2011 bound for Australia.
The Court accepts the wife’s evidence with respect to a sexual relationship having existed between the parties from the time the parties first met in person until their departure from the (country omitted) in (omitted) 2011. At the time there may have well been some form of financial dependence or independence but the evidence suggests that whatever might have taken place between (omitted) 2007 until (omitted) 2011 was well less than a settled arrangement and the parties were actually financially independent of one another.
While there is some suggestion that perhaps chattels were purchased together for the use by the parties during the period they lived together in the (country omitted), it is very much a case that the parties did not purchase any property together of a significant type, such as a motor vehicle or real property, nor did the other use property owned by the other, such as living in one party’s home together.
This is a matter where the wife longed for a degree of mutual commitment to a shared life with the husband. What the evidence shows, however, was that whilst the wife may have longed for it, the husband did not reciprocate such a commitment. Such was the state of the parties’ mutual commitment to a shared life that the wife gave evidence of her having entered into a relationship with an (nationality omitted) gentleman whilst she was living in (country omitted).
There are no children of the parties’ relationship and at no time did either party seek to register their relationship. The Court accepts that during a period while the parties were living in the (country omitted) the public aspects and reputation of the parties was such that others viewing them would have concluded the parties were in a de facto relationship. The period concluded when the husband left the (country omitted).
The Court finds that it was in January 2011, upon the parties leaving the (country omitted) together for Australia, that the parties had formed an intention to and commenced a de facto relationship within the definition of de facto relationship found at section 4AA of the Family Law Act 1975. The parties then married on (omitted) 2011.
As at January 2011 the husband had an encumbered property at Property M, an unencumbered block of land at Property O savings, a Ford motor vehicle, a Harley Davidson motorbike, some credit card debt and superannuation.
The wife gives evidence that at the commencement of the relationship in 2007 she did not have any significant assets and had a credit card debt of some US$5200. The wife does not give any other evidence as to her asset positions as at January 2011. The husband asserts the wife had minimal assets as at January 2011. The wife conceded that the husband owned the property at Property M that was sold in October 2011 for $410,000. The husband deposes to having received some $109,414.38 in net proceeds from the sale that was used towards building the home in Property O.
In November 2010 the husband had purchased the block of land at Property O for $135,000 and built a home on it for $210,000 with proceeds from the sale of the property at Property E shortly prior. The Court accepts that all of the assets of the relationship were brought in by the husband. The wife asserts that she paid for some gravel and the letterbox at the Property O property. The wife also asserts that she paid for some bathroom fittings which the husband, in cross-examination, could not recall. However, the wife gave no evidence as to the cost of those items.
The wife worked as a (occupation omitted) between July 2011 and July 2013, earning between $500 and $800 each week. The husband worked as a (occupation omitted) for (employer omitted) from July 2010 and had an income which allowed him to provide financial assistance to the wife’s family in the (country omitted). The wife asserts, and the Court accepts, that the wife paid for day to day expenses such as food, groceries, kitchen utensils, crockery, cutlery and insurance on the house and the husband’s motor vehicle and household bills such as internet, electricity and water. The husband does not recollect the wife paying for household bills.
The wife and husband sent monies back to the (country omitted) during the course of the marriage for the benefit of the wife’s family in the (country omitted). The husband assisted with bringing the wife’s two children to Australia and paid monies towards their maintenance and schooling whilst the children lived with the parties until such time as the children returned to live in the (country omitted). The husband conceded in cross-examination that the wife may have used some of her money to pay for what he described as “bits and pieces”.
Whilst a concession made by the husband, the Court finds such to be somewhat disingenuous given the evidence. In his affidavit the husband gives evidence that:
We did the shopping together, usually at (omitted), and as far as I recollect I always paid for food bills. However, Ms Chapman may have paid on occasions.
The Court accepts that the husband probably paid for groceries but did not pay for all.
The wife conceded the husband solely paid for the mortgage. The wife asserts between May 2011 and October 2011 both she and the husband renovated the kitchen and bathroom and painted the inside and outside of the Property M property. The husband asserts the wife only assisted for a couple of hours. The husband conceded in cross-examination that the wife helped with the painting of the roof and the grouting work after he taught her the process. The husband frankly conceded:
She helped me a lot. She was a great help.
The husband is a (occupation omitted) and built the decks, dug holes and did the formwork at the Property O property. The husband acknowledged the wife assisted him with some of what he describes as the lighter work. The husband acknowledged in cross-examination the wife assisted with the deck in that she put soap on what he described as about 10 per cent of the nails he required to use for the construction of the decking.
The wife asserts that she assisted with the landscaping and decking at the Property O property. The husband conceded the wife assisted with the lighter work and occasionally raked the leaves. The wife asserts she painted part of the Property O house. The husband built a fence for the wife’s dog (omitted), built a vegetable garden at the request of the wife and performed what he described as all of the outside work. The evidence suggests that the husband transported the wife to her (omitted) jobs as the wife did not have a licence.
The Court finds that the husband utilised his building skills to undertake some work around the Property M and Property O properties and was assisted in some way by the wife. The wife asserts that she did the washing up, the washing and ironing, the cleaning, the shopping and most of the cooking. The wife also asserts that she attended to the cleaning of the roof and gutters each month. The husband asserts that he did most of the housework as the wife would be tired at the end of each day because of her (occupation omitted).
Having heard and considered the parties’ evidence, the Court finds the wife did the greater share of the domestic duties. The husband does acknowledge that the household duties were shared, including the cooking, washing and ironing and cleaning. The husband asserts the parties did the shopping together. Submissions made by counsel for the husband suggests that this is not a case where one party had been the breadwinner whilst the other party took on the role as homemaker to care for the children in the relationship.
Whilst this is true in part, the Court finds that the domestic household duties were borne largely by the wife. The wife asserts a Kennon type argument based upon her evidence of family violence perpetrated upon her by the husband and also a sexual abuse perpetrated upon her by the husband. The Court is conscious of and considers the standard of proof to be employed where there are allegations of this type as set out in the case of Briginshaw & Briginshaw (1938) 60 CLR 336.
It was held in Kennon (1997) 22LR1 fam:
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the relationship which is demonstrated to have had a significant adverse impact on the party’s contributions to the marriage, or, put the other way, to have made his or contributions significantly more arduous than they ought to have been, this is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within section 79. We prefer this approach to the concept of negative contributions which is sometimes referred to in this discussion.
The Court went on to say in Kennon:
These principles, which should only apply to exceptional cases, may become more common coinage in property cases and be used inappropriately as tactical weapons for personal attacks and so return this Court to fault and misconduct in property matters - a circumstance which proved so debilitating in the past. In addition, there is the risk of substantial additional time and cost. It is essential to bear in mind the relatively narrow band of cases to which these considerations apply.
To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass conduct related to the breakdown of the marriage, basically because it would not have had a sufficient duration for this impact to be relevant to contribution.
The husband disputes that he was violent towards the wife and disputes that he sexually abused the wife. Having heard the wife’s evidence of sexual abuse and family violence alleged to have been perpetrated by the husband, the Court is unable to make any findings as to whether the husband had perpetrated family violence or sexual abuse upon the wife and is, likewise, unable to make any findings based upon the evidence that the wife’s contributions were made more arduous during the marriage by reasons of conduct of the husband to the wife. The Court cannot make those findings.
Ultimately, the parties separated on July 2013. The husband is currently in receipt of a disability support pension and resides with his first wife, Ms W. The wife re-married on (omitted) 2015 and the wife obtained employment as a (occupation omitted) on (omitted) 2014, working 10 hours each week earning $30 per hour. The wife obtained a second job working as an (occupation omitted) on (omitted) 2015, working 13.5 hours per week earning $26.58 per hour, where such employment was as at 13 August 2015, subject to a trial period.
These are proceedings governed by section 79 and generally Part VIII of the Family Law Act1975. In the case of Stanford & Stanford (2012) 293 ALR 70 of the High Court at paragraphs 78 to 79 considered the manner in which the court should approach and determine property proceedings and held:
It is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to the ordinary common law and equity principles, the existing legal and equitable interests of the parties in the property.
The Court has historically determined property proceedings in accordance with its well-established principles set out in Hickey & Hickey (2003) FLC 93 to 143 embarking upon a four step process. The first step requires the Court to identify and value the assets, liabilities and financial resources of the parties at the time of the hearing. The second step requires the Court to consider the parties’ contributions and consider any adjustment that should be made between the parties. The third step requires the Court to consider the actual circumstances of the parties and to make adjustment for those circumstances considering a variety of factors set at out at section 75(2) of the Family Law Act1975.
The last step, step four, requires the Court to satisfy itself as to the actual effect of the orders being just and equitable.
In the Full Court of the Family Court decision in Bevan & Bevan, the Full Court considered the decision in Stanford and the implication of the decision when looking at the four step approach taken by the courts. Bryant CJ and Thackray J held at paragraph 59:
Prior to Stanford, property applications were commonly dealt with by reference to what the trial judge called a four step process. This process was described at paragraph 31 and 32 of his Honour’s reasons. The jurisprudential basis for the process was well established – see the line of cases cited in Hickey & Hickey.
The four step process involves the identification and valuation of the property of the parties, identification and evaluation of the contribution of the property including property no longer owned by the parties, identification and assessment of the various matters set out at section 79(4)(d) to (g) including, to the extent they are relevant, those matters set out at section 75(2), considerations of matters of justice and equity.
Although the four step process has been regularly applied, the Full Court has stressed it is no more than a means to an end, since the statutory obligation is to alter existing interests only if it is just and equitable to do so. Thus, in Norman & Norman (2013) FamCAFC 116 Finn, May and Murphy JJ said “It is the mandatory legislative imperative to reach a conclusion that is just and equitable that drives the ultimate result.
For all its usefulness and merit as a disciplined approach or structured process of reasoning, the three-step or four-step approach merely illuminates the path to the ultimate result. To like effect, in discussing the four step approach in our joint judgments in Martin & Newton we said that the approach is not legislatively mandated and, as the Full Court in Hickey said, it is simply the preferred approach.
This is because it will be sufficient in most cases to have regard to the overall justice and equity of the orders after determining the asset pool, consideration of contribution and assessment of the relevant section 75(2) matters. But in our view, there is no requirement that the justice and equity of the orders, as prescribed by section 79(2), must only be considered at the fourth and last stage.
In our view, the requirement to make an order that is just and equitable permeates the entire decision making process and it is not impermissible to consider it at an earlier point if the particular case requires it. We consider this to be such a case.
In McLusky & McLusky [2014] FamCA 93, at paragraph 8, Forrest J stated:
Furthermore, neither party submitted that the Court’s determination of appropriate orders dividing the property of the parties or either of them in a manner that the Court considers just and equitable should not be undertaken pursuant to the four step process that has been authoritatively accepted as the generally appropriate method for doing so. The continued use of this approach to illuminate the path to determining the just and equitable orders to be made does not, in my view, offend any of the reasoning in Stanford. I consider that the Full Court accepted as much in Bevan & Bevan. I intend to follow the four step process.
In Todd & Todd [2014] FamCA 101 Berman J stated:
The adoption of the above four step approach is not intended to presuppose a positive answer to the question posed by section 79 (2), nor to suggest that it is an approach appropriate in all proceedings. Rather, and provided that the fundamental proposition outlined by the High Court in are not obscured, such approach is intended to and does no more than provide a principled, disciplined and structured means by which all of the matters arising for consideration pursuant to section 79 can be conveniently and properly identified and assessed. Further, and whilst not said critically nor in a matter which seeks to cavil with the decision in this appeal, no other approach to the determination emerges readily from either Stanford nor the decisions in this appeal. It is respectfully submitted that provided that the fundamental propositions articulated in Stanford are not obscured, and whilst not universally so as has always been recognised, the approach set out above continues to provide a proper, transparent, certain and structured approach to the presentation and determination of applications pursuant to Section 79.
In Adamson & Adamson [2014] FCCA 73 Judge Altobelli adopted the four step approach, commenting:
In Bevan & Bevan the Full Court of the Family Court of Australia considered the High Court’s decision in Stanford & Stanford which provided guidance on how section 79 was to be interpreted and implemented. Bevan endorsed the continuing application of the four step approach articulated by the Full Court in Hickey & Hickey & Attorney General for the Commonwealth of Australia, but on the basis that it is a shorthand distillation of the words of section 79, as opposed to being a statutory edict.
What is clear from the case law is that the four step approach, whilst not legislatively mandated, continues to be adopted by the courts when determining applications under section 79 of the Family Law Act1975 for adjustment of property interests as it is a means by which the Court is able to illuminate a pathway towards a result that is just and equitable. This approach is well-established by authority. In that regard, see the cases of In the marriage of Lee-Steere (1985) FLC 91-626, In the marriage of Ferraro (1993) FLC 92-335, In the marriage of Clauson (1995) FLC 92-595. In Whinton & Whinton [2014] FamCA 102 Johnson J stated:
In our view, it will be less likely that a separate issue arising under section 79(2) and 79(4) will be conflated if judges refrain from evaluating contributions and other relevant factors in percentages or monetary terms until such time as they firstly determine that it would just and equitable to make an order.
This is a case in which the husband seeks the Court make no order. Section 79 provides the legislative power to adjust property interest between the parties to a marriage, so provides that in property proceedings a court may make such an order as it considers appropriate, altering the interests of the parties in the marriage in their property, including an order for a settlement of property and substitution for any interests in the property.
Subsection (4) of the Family Law Act1975 provides a definition of property. Section 79(2), however, provides most relevantly:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
In Stanford & Stanford the High Court considered an appeal against orders made pursuant to section 79 involving proceedings where a party to the marriage died before the property settlement proceedings were completed. Although Stanford concerned an unusual set of facts, the High Court said a number of things of more general significance in relation to the approach to be properly applied in property proceedings, particularly in relation to section 79(2). Whilst the facts in Stanford are different to the facts in this case, the ratio applies where the High Court said:
It will be recalled that section 79(2) provides that the Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make an 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 requirement of the two subsections are not to be conflated. In every case in which a property settlement order under section 79 order is sought, it is necessary to satisfy the Court that, in all the circumstances, it is just and equitable to make an 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. And whilst the power given by section 79 is not to be exercised in accordance with fixed rules, nevertheless, three fundamental propositions must not be obscured.
First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. Second, although section 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion.
The judge called upon to decide proceedings of that kind is not entitled to do what has been described as palm tree justice. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles the Act itself lays down. Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is just and equitable to make the order is not to be answered by assuming that the parties' right to or interests in marital property are or should be different from those that actually exist.
All the more is that so when it is recognised that section 79 of the Act must be applied keeping in mind that community of ownership arising under the marriage has no place in the common law. Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses. The question presented by section 79 is whether that rights and interests should be altered.
Third, whether making a property settlement order is just and equitable is not to be answered by beginning from the presumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters, including financial and other contributions, set out at section 79(4).
The power to make a property settlement order must be exercised in accordance with legal principles, including the principle which the Act itself lays down. To conclude that making an order is just and equitable only because of and by reference to various matters in section 79(4), without a separate consideration of section 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act. Emphasis added.
If the parties have made a financial agreement about the property of one or both of the parties that is binding pursuant to Part VIIIA of the Act, then, subject to that Part, a court cannot make a property settlement order. 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 a choice made by one or both of the parties, the husband and wife are no longer living in a matrimonial 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 mutual relationship. That is, any express or implied assumption that the parties may have made to the effect that existing arrangements of matrimonial properties were sufficient or appropriate during the continuance of their matrimonial relationship is brought to an end with the ending of the matrimonial relationship.
And the assumption that any adjustment to those interests could be effectively 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 be made is determined by applying section 79(4). Emphasis added. As has already been emphasised, nothing in these reasons should be understood as attempting to chart the metes and bounds of what is just and equitable. Nor is anything that is said in these reasons intended to deny the importance of considering any countervailing factors which may bear upon what, in all the circumstances of the particular case, is just and equitable.
In particular, as the Full Court pointed out in its first judgment in this matter, the magistrate erred in not taking into account of the consequences that would follow for the husband if a property settlement order were be made in the terms which were sought on behalf of the wife. The husband would be required to sell the matrimonial home, in which he was still living, despite the needs of his wife then being met by the provision of full time care, a further provision of money against future contingencies and the possibility, if needed, of making maintenance orders.
This is a case where the assets of the parties are not divided evenly between them and the Court takes the view that, in this case, the Court ought to make a finding as to whether it is just and equitable to make an order accordingly when identifying according to the ordinary common law and principles of equity the existing legal and equitable interests of the parties.
The Court finds that the contributions the parties made, particularly those of the wife, are not reflected in the way in which she holds her assets – or the parties hold their assets. In this case, the husband holds assets of substantially greater value than those held in the name of the wife and it is therefore the view of the Court it is just and equitable to make a property settlement order adjusting the parties’ property interests in the proceedings.
During the hearing the Court will sometimes utilise the evidence of experts, such as valuers, agreement between parties or the making of findings upon the evidence presented to identify the value of the property, liabilities and financial resources. In submissions on behalf of the wife, counsel for the wife suggested that the property acquired post-separation by the husband in Property R should not be taken into account as the value of the property has fallen below the borrowings against the property or, if taken into account, ask the Court to make a finding against the husband that he is engaged in conduct that amounts to waste and be taken into account pursuant to section 75(2)(o).
In the decision of Kowaliw (1981) FLC 91-092, the Full Court of the Family Court held that:
The financial losses incurred by the parties, or either of them, in the course of their marriage should be shared by them, although not necessarily equally, unless one of the parties has embarked upon a course of conduct designed to reduce the value of the assets or where one of the parties has acted recklessly, negligently or wantonly with the assets causing reduction or minimisation of their value. This is often referred to as waste.
Whilst the Court finds the husband has in his possession a property worth some $42,000 less than the mortgage drawn against it, the Court does not find that the husband has embarked upon a course of conduct designed to reduce the value of the matrimonial asset pool or acted recklessly, negligently or wantonly in the purchase of the Property R property with a view to causing reduction or minimisation of the value of the pool of assets.
The Court notes the evidence of the husband contained at paragraph 166 of the husband’s affidavit to the effect that the wife owns a house in (country omitted), that is described by the husband as being about an hour’s flight from (country omitted) and that the husband deposes he stayed in it in December of 2010. The Court is not able to make a finding based upon the evidence of the parties as to the wife’s ownership of such a property or, for that matter, what such property might be worth.
The Court does not propose to include such property in the pool of assets or treat the same as a financial resource in the hands of the wife to be taken into account pursuant to section 75(2)(b). The Court has considered the evidence given with respect to the monies advanced to the husband by Ms W. The evidence is such that the Court does not accept that the monies advanced by Ms W set out within the husband’s affidavit at paragraph 171 are, in fact, repayable as a loan or loans and, as such, the Court does not include the same as liabilities to be included in the matrimonial pool.
Submissions were made on behalf of the wife to the effect that the husband has failed to comply with his obligations for disclosure. The husband made a direct concession during cross-examination that he had not made full and frank disclosure of his financial matters. The husband conceded that he had failed to disclose to the wife or to the Court until he was in the witness box that he had drawn down an amount of $70,000 from his superannuation since on or about January 2011.
The husband admitted that he had failed to disclose until day 2 of the hearing during cross-examination that he had operated a bank account with the (omitted) Bank which, as at the date of the hearing, had an account balance of some $3000 a statement of which is exhibit F in the proceedings – and conceded that as a result of his non-disclosure the wife had no opportunity to make any inquiries in relation to that account.
The husband was cross-examined about his financial statement sworn on 21 October 2013 and admitted that his statement discloses one (omitted) Bank account with a balance of $300 whereas, in fact, at the time the true position was that the husband operated three separate savings accounts with (omitted) Bank with a total balance of some $2000. The husband was cross-examined about his financial statement of 25 June 2014 and admitted that this statement disclosed one (omitted) Bank account with a balance of $1000 whereas, in fact, at the time the true position was he operated three separate savings accounts which had a balance of $2782.
The husband admitted that he included in his financial statement loan balances which no longer existed as the husband had paid those loans out using funds provided to him by Ms W. It appears from the evidence that there were a number of unexplained or unaccounted for deposits in the husband’s accounts, being a deposit on 17 July 2014 of some $17000 and on 27 February 2014 of some $11,513 that the husband sets out was his termination payment.
The husband failed to disclose to the wife or the Court until the trial that he had retained two separate superannuation member accounts, being member benefit number (omitted) and member account number (omitted), in which there was a sum of $45,223 of superannuation. It is suggested on behalf of the wife that, as a result of the husband’s non-disclosure, the Court may be unable to accurately assess the property pool.
The Full Court in Chang & Su (2002) FLC 93-117 cited, with approval by Nicholson CJ in Black& Kellner (1992) FLC 92-287, endorsed the Full Court in Giunti & Giunti (1986) FLC 91-759 stated:
It is obviously desirable as a general principle that the court should first of all identify the pool of assets available and evaluate it. If each party complies with his or her obligations to make a full and substantive disclosure and define their actual affairs, there is no problem although there may be dispute as to valuations.
The Full Court in Chang & Su went on to uphold the trial judge’s approach setting out:
Findings of non-disclosure by the husband, the only imperative that she could fall back upon was the order be just and equitable, and she concluded it was be just and equitable for the wife to have the visible assets in Australia unencumbered, leaving the husband all of the Taiwanese assets.
The Full Court quoted favourably from Weir & Weir (1993) FLC 92-338 where the Full Court said, at page 79-593:
It seems to us that once it has been established that there has been deliberate non-disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
The wife submits that the Court ought to find on the evidence that the husband has failed in his duty to make full and frank disclosure and the Court ought not to be concerned to make findings adverse to the husband in the proceedings. As opposed to many cases in which Black & Kellner has applied where, for instance, the Court finds one party has undisclosed assets, perhaps overseas, the Court can in this matter identify accurately the assets of the parties available for division despite what appears, on the face of the husband’s evidence, to be issues of non-disclosure.
The Court finds the following assets and liabilities:
(1)Husband’s property at Property O: $465,000;
(2)Husband’s property at Property R: $238,000;
(3)Husband's Mitsubishi (omitted): $9000;
(4)Husband’s Harley Davidson motorcycle: $14,000;
(5)Husband’s household contents: $5000;
(6)Husband's (omitted) Bank accounts: $1000;
(7)Wife's (omitted) account ending (omitted): $866;
(8)Wife's (omitted) account number ending (omitted): $9,070;
(9)Wife's (omitted) account: $271;
(10)Wife’s furniture: $300;
Total property: $742,507.00
Liabilities:
(1)Husband’s liability, mortgage at Property O: $263,834;
(2)Husband’s mortgage Property R: $279,296;
(3)Wife’s loan Ms J: $1390;
(4)Wife's (omitted): $1790;
Total of liabilities: $546,310.
Net assets excluding superannuation: $196,197.00
Superannuation:
(1)Husband’s superannuation at (employer omitted) Super: $33,138;
(2)Husband's (employer omitted) Super second fund: $12,085.
The Court now embarks upon the second step in the exercise under section 79, namely an assessment of the parties’ contributions within the context of section 79(4)(a) to (c). These provisions provide as follows: section 79(4):
In consideration of what order, if any, should be made under this section in proceedings with respect to any property the parties to a marriage or either of them, the Court shall take into account:
(a) the financial contributions made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of the last-mentioned property, whether or not the last mentioned property has, since the making of the contribution, ceased to be the properties of the parties to the marriage or either of them;
(b) the contributions, other than a financial contribution, made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent.
As set out above, the husband had significant assets as at the commencement of the relationship whereas the wife had no significant assets and credit card debt. The Court ascribes much weight to the husband’s initial contribution. The Full Court of the Family Court in Pierce & Pierce (1999) FLC 92-844, at paragraph, said as follows:
In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contribution by the party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution regard must be had to the use made by the parties of that contribution.
The parties undertook real work of great worth to the former matrimonial home in the form of tidying up and readying for sale the property at Property M, and then with regard to the construction of the property at Property O. The Court accepts that by far the husband’s work outweighed that provided by the wife, in part, based upon his skill as a qualified but retired (occupation omitted) as a result of his work injury to his back. The Court notes there are no children of the marriage.
The Court finds that the wife’s contribution as a homemaker outweighed those provided by the husband during the short period of the parties’ marriage. Weighing up the various contributions of the parties, the Court finds that an adjustment in contributions as to 85 per cent to the husband and as to 15 per cent to the wife. Having determined the contribution elements, the Court is required to have regard to the provision of section 75(2). The matters to be taken into account are:
a)The age and state of health of each of the parties. The wife is 48 years of age and in good physical health. The husband is 66 years of age and is in receipt of a disability support pension.
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. The Court has considered the income of both of the parties in the form of the wife’s wages through employment and the husband’s disability support pension. The husband receives rent on the properties in his name but pays outgoings and payments in respect of the mortgages secured against those properties. Whilst the Court notes the evidence of the wife with respect to issues relating to mental health, the Court finds that overall the wife has a greater physical and mental capacity for appropriate gainful employment.
c)The Court considers whether each party has the care and control of a child of the marriage who has not attained the age of 18 years. There are no children of the marriage in this matter.
d)The Court considers the commitment of each of the parties that are necessary to enable the parties to support himself or herself or a child of another person to which that party has a duty to maintain. The Court notes the commitments that the parties have necessary to support themselves. The Court notes the monies paid by the parties back to the (country omitted) for the benefit of the wife’s family. There is insufficient evidence available to the Court to make a finding that the wife or the husband, for that matter, has a commitment to support a child or another person that a party has a duty to maintain.
e)The Court must consider the responsibilities of either party to support any other person. Again, the Court is not aware of either party have a responsibility to support another person.
f)The Court must consider the eligibility of a party for a pension, allowance or benefit under any law of the Commonwealth or of a State or Territory or any other country, any superannuation fund or scheme, whether the fund or scheme was established or operates within or outside of Australia, and the rate of any such pension, allowance or benefit being paid to either party. The Court considered the husband’s entitlement to receive a disability support pension. Based upon the wife’s current employment the Court is unaware as to whether the wife would be eligible to receive a Centrelink payment.
g)The Court must consider where the parties have separated or the marriage has dissolved, the standard of living that in all the circumstances is reasonable. The Court notes that upon either application of the wife or the husband, the parties will be afforded a standard of living that in all the circumstances is reasonable.
h)The Court gives no weight to those considerations set out at section 75(h), (ha) or (j).
i)The Court considers the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration. The Court finds that the short duration of the marriage has not affected the earning capacity of either party.
j)The Court considers the need to protect the party who wishes to continue that role of a parent. The Court ascribes no weight to section 75(2)(l).
k)The Court must consider if either party is cohabiting with another person, the financial circumstances relating to that cohabitation. It would appear that both parties are cohabiting with other persons. There is no evidence, with the exception of monies having been advanced by Ms W to the husband, that allows the Court to give weight in either parties’ favour.
l)The Court must give consideration of the terms of any order made or proposed to be made under this section in relation to the property of the parties. The Court considered that section.
m)The Court gives no weight to section 75(2)(na) in respect of child support.
n)The Court does consider subparagraph (o) of section 75(2) being any fact or circumstance which, in the opinion of the Court the justice of the case requires to be taken into account. Submissions were made by counsel on behalf of the husband to suggest the Court should take into account the voluntary contributions made to the wife’s children, (omitted) and (omitted), in the form of housing and financial support by the husband. In the decision of Robb & Robb (1994) FamCA 136, (1995) FLC 92-555, the Full Court, comprising Lindenmayer, Finn and Joske JJ said:
In considering whether the justice of a case requires some act done by a party to be taken into account under section 75(2)(o), the Court should, we think, have regard primarily to the existence or otherwise of any legal obligations, as between the parties, in relation to the doing of that act, and also, perhaps, to ordinary notions of justice and equity between the parties.
In the decision in Robb the wife had the care of the infant children from a prior marriage for whom, of course, she had all the primary legal duty to maintain. The second husband did not have such a legal duty and with evidence before the trial judge of his financial and emotional support of the children, the Court made an allowance under section 75(2)(o) for that fact, that the Full Court said:
The justice of the case clearly requires the husband's contribution to be taken into account pursuant to section 75(2)(o) but that the same cannot be said of the wife's contributions, as in making that contribution the wife was in no way discharging or assisting in the discharging any legal obligation of the husband.
The Court gives weight to the submissions advanced by the husband pursuant to section 75(2)(o).
o)The Court does not consider sections 75(2)(p) and (q) where there is no financial agreement as binding upon the parties pursuant to Part VIIIAB or a financial agreement binding upon each of the parties.
When considering section 75(2) the Court finds that an adjustment should be made in favour of the husband as to 52.5 per cent to the husband and 47.5 per cent to the wife. The Court considers section 79(2). The fourth stage of the process is to step back and assess whether, in all the circumstances, it is just and equitable to make the orders as proposed. I have previously referred to the case of Russell and note that similarly in Esposito & Costa [2012] FamCAFC 118, the Full Court comprising Coleman, Thackray and Ainslie-Wallace JJ, at paragraph 66 looked at the scope of section 79(2) and stated:
The section does however oblige the court to stand back from its preliminary determination, and consider its impact. So doing many inform the terms of the orders appropriate to produce a just and equitable outcome in those terms. It may result in a re-consideration of section 79(4) or of 75(2) factors, and a different outcome. Whatever the scope of section 79(2), the Court determines with respect to it, it cannot be dependent upon findings or conclusions which are irreconcilable with those recorded in the context of considerations of section 79(4) or 75(2).
The Court makes no further adjustment when, in effect, standing back and assessing whether or not the orders are just and equitable. The Court finds that the proposed orders, in fact, are. The Court makes orders for settlement of 87.5 per cent to the husband and 12.5 per cent to the wife as reflected in the orders at the beginning of this decision.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Myers
Date: 7 April 2016
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