CHARNICK & CORLES
[2018] FCCA 3862
•21 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHARNICK & CORLES | [2018] FCCA 3862 |
| Catchwords: FAMILY LAW – Spousal Maintenance – wife’s claim for periodic spousal maintenance dismissed. |
| Legislation: Evidence Act 1995 (Cth) s.140 Family Law Act 1975 (Cth), ss.72, 75(2), 79 |
| Cases cited: Re F: Litigants in Person Guidelines (2001) FLC 93-072 |
| Applicant: | MR CHARNICK |
| Respondent: | MS CORLES |
| File Number: | MLC 10842 of 2016 |
| Judgment of: | Judge Williams |
| Hearing dates: | 22-24 August 2018; 29 October – 1 November 2018 |
| Date of Last Submission: | 1 November 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 21 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms A Carter |
| Solicitors for the Applicant: | Clancy and Triado |
| The Respondent: | In Person |
ORDERS
The Husband pay to the Wife the sum of $22,500.00 (“the payment”) within 90 days of the date of this order.
That in the event that the whole of the payment has not been made by the date, then the Husband sign all documents and do all things necessary to forthwith sell the property situated at Property A (“Property A property”) and upon completion of the sale, the proceeds of the sale be applied:
(a)First, to pay all costs, commissions and expenses of the sale;
(b)Secondly, to discharge the mortgage and any other encumbrance affecting the real property;
(c)Thirdly, so much of the payment as is then outstanding together with interest thereon at the rate presented by the Family Law Rules adjusted monthly from the date, to the Wife;
(d)Fourthly, the balance to the husband;
That pending the payment or completion of the sale:
(a)The Husband have the sole right to occupy the Property A property and during such right of occupation the Husband pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the Property A property as they fall due;
(b)The parties hold their respective interests in the real property upon trust pursuant to these orders; and
(c)Neither party encumber the real property without the consent in writing of the other party.
Subject to orders 1, 2 and 3 hereof , the husband:
(a)retain his right title and interest in the Property A property;
(b)contemporaneously with the payment referred to in paragraph 1 hereof”
(i)discharge the mortgage secured against the Property A property, so as to release the wife from all liability in relation thereto;
(ii)forthwith upon compliance with paragraph 4 (b)(i) hereof, provide evidence to the wife of a discharge of the mortgage;
(iii)withdraw any caveat he has lodged against the properties situated at Properties B1 and B2 and provide evidence to the wife of the lodgement of the Withdrawals of Caveats
The husband retain the following:
(i)his motor vehicle 1;
(ii)bank accounts in his sole name.
The husband be liable for and indemnify and keep indemnified the wife against all payments and liability, past present and future in respect to the following:
(i)the ANZ credit card in his name (ending # …);
(ii)his ANZ personal loan;
(iii)any loan owing to his parents.
The wife retain the following:
(i)her right title and interest in the properties situated at Properties B1 and B2;
(ii)the two shipping containers;
(iii)her motor vehicle 2;
(iv)bank accounts in her sole name;
(v)the chattels located at the Properties B1 and B2 properties.
The wife be liable for and indemnify and keep indemnified the husband against all payments and liability, past present and future in respect to the following:
(i)all amounts paid/advanced by Ms K or Ms L to discharge the mortgage to …Finance previously secured against the Property B1 property;
(ii)the other amounts which she claims are allegedly owing to either Ms K or Ms L.
The Court allocate, as required by s.90MT(4) of the Family Law Act 1975 (Cth), a base amount of $29,000.00 of the husband’s interest in Super Fund M as at the date of these Orders to the wife.
Pursuant to s.90MT(1)(a) of the Family Law Act 1975 (Cth), whenever the Trustee of the fund makes a splittable payment out of the husband’s interest in the fund, the Trustee will:
(a)pay to the wife, or her administrators, executors, beneficiaries, heirs or assigns, to the extent permitted by law, the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and
(b)make a corresponding reduction in the entitlement that the husband would have had in the fund but for these Orders.
Paragraph 10 has effect from the operative time, and the operative time for the purpose of these Orders is 4 working days after the service of a sealed copy of these Orders on the trustee, with such service to be effected by the husband.
The Trustee of the fund will do all such acts and things, and sign all such documents as may be necessary so that, in accordance with the obligations set out under the Family Law (Superannuation) Regulations 2001 (Cth), the Trustee can calculate the entitlement awarded to the wife in accordance with paragraph 11 of these Orders and pay the entitlement whenever the Trustee makes a splittable payment from the husband’s interest in the fund.
The wife do all things necessary, including but not limited to, exercising her request pursuant to r.7A.05 of the Superannuation Industry (Supervision) Regulations 1994 (Cth) for the creation of a new interest in the wife’s name in the fund with the value of the transferable benefits calculated in accordance with r.7A.11 of the Superannuation Industry (Supervision) Regulations 1994 (Cth).
Pursuant to r.14F of the Family Law (Superannuation) Regulations 2001 (Cth), any payment from the husband’s superannuation interest in the fund made after the Trustee has created a new interest in the wife’s name in the fund are not splittable payments.
That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders;
(b)Each party foregoes any claims they may have to any superannuation benefits belonging to or earned by the other;
(c)Insurance policies remain the sole property of the owner/beneficiary named thereon/in;
(d)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
IT IS NOTED that publication of this judgment under the pseudonym Charnick & Corles is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10842 of 2016
| MR CHARNICK |
Applicant
And
| MS CORLES |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for property adjustment pursuant to s.79 of the Family Law Act 1975 (“the Act”).
The parties are unable to reach agreement about the division of their property.
Issues in dispute
The following issues were in dispute in the proceedings:
i)The date of separation;
ii)The assets and liabilities comprising the asset pool, specifically:
a.Whether Properties B1 and B2 should be included / excluded from the asset pool;
b.The extent of the notional mortgage / indebtedness encumbering Property B1;
c.Whether monies were advanced by the wife’s mother, Ms K, during the marriage and if so, the amount and characterisation of any such advance;
d.Characterisation of the expenditure of approximately $55,000 in February 2014.
iii)What weight should be accorded to each party for their respective contributions;
iv)The adjustment to the wife for s.75(2) factors;
v)Should the wife receive periodic payments of spousal maintenance?
Synopsis
In relation to property, I have determined that:
i)Properties B1 and B2 should be included in the asset pool for distribution between the parties;
ii)The notional liability attaching to Property B1 is $ 297,000;
iii)Ms K probably advanced funds to the parties during the relationship, but I am unable to make any findings as to quantum;
iv)Any amounts advanced by Ms K are not repayable loans;
v)The shipping containers were financed by the drawn down of $55,000 on the Property A mortgage;
vi)The non-superannuation asset pool, which I have determined should be divided between the parties, so that the wife receive 75% and the husband receive 25%;
vii)There be an equalisation of the parties combined superannuation entitlements, which will result in a payment from the wife’s fund to the husband’s fund.
viii)The wife’s claim for spousal maintenance is dismissed.
The reasons for my determination follow.
Background
The husband was born on …1969 and is currently aged 49. He is employed as a tradesman and earns $62,402 per annum plus superannuation.
The wife was born on …1972 and is currently aged 46. She is in receipt of a disability pension and works as a professional.
In late 2001 the parties commenced cohabitation.
At the date of cohabitation the husband owned a property situated at Property C. After extending the mortgage secured against the property, to pay out his previous wife, at the commencement of cohabitation the equity in the property was approximately $11,000. The husband claims that ownership of property was a springboard for further development of the property.
After the commencement of cohabitation, the parties undertook renovations to the Property C property. The husband asserts that the renovations were largely funded by him. The wife asserts that:
1. her father assisted with the renovations and contributed $6000 in materials;
2. her sister assisted in the renovations;
3. she worked full-time on the renovations as she was on maternity leave during that time.
On …2003, the parties’ daughter, [X], was born. She is now aged 15. [X] lives with her mother and spends time with her father as agreed.
In 2005, the parties subdivided the Property C property into two lots, Properties C1 and C2. The husband was the registered proprietor of both properties.
The wife asserts that as at 18 August 2005, Property C1 was encumbered with a mortgage to the ANZ bank of $200,000 and that Property C2 was unencumbered and valued at approximately $100,000.
In 2005, the parties purchased from the wife’s sister, Ms L, the property situated at Property B1. The husband was the registered proprietor of the property. There is a dispute about the terms of purchase.
The husband asserts that the sum of $115,000 was the purchase price of the property. Nominal amounts were paid in 2005 and in 2007, when the parties refinanced Property C2, a further amount was paid to the wife’s sister. In 2009 when Property C2 was sold, a further amount of $110,000 was paid to Ms L.
The wife initially agreed with the husband about the terms of the purchase of Property B1 from her sister Ms L. She subsequently asserts that the land was a gifted to the husband, or the parties as custodians of sacred ancestral land and that the payment of $110,000 to her sister in 2009, was to reimburse her for monies advanced to build Property C2, and not the purchase price of Property B1. The parties renovated the house on Property B1.
On …2006 the parties married.
In 2007, the wife’s mother transferred to the wife the property situated at Property B2. The consideration on the Transfer of Land was $80,000[1]. There is no evidence this sum was ever paid by the wife to her mother. The wife claims Property B2 was held by her upon trust for her mother and sister, as to a 70% interest for her mother and a 30% interest for her sister and that is also sacred ancestral land. Subsequent to separation, the wife transferred the property to her sister for no consideration.
[1] Exhibit H 4 - Transfer of Land dated 27 September 2007.
In 2007, the parties had completed the renovation of Property C1 and were living in the property. They were also in the process of building Property C2 and had completed renovations to Property B1, which was tenanted. The parties had plans to build a house on Property B2.
In 2008, upon completion of the construction of Property C2, the parties moved into that property, and leased out Property C1.
In January 2009, Property C1 was sold for $348,000.
In June 2009, the parties refinanced the mortgage secured against Property C2 to approximately $350,000. The funds were applied to repay each of the parties parents and the wife’s sister was paid $110,000. There is a dispute whether the payment to the wife’s sister was purchase of Property B1 or a repayment of funds she advanced for building works.
In April 2010, the parties sold Property C2 for $345,000. At the same time they purchased Property A for $352,000. The purchase of Property A property was funded by the proceeds of sale of Property C2, together with a mortgage from the ANZ bank of $270,000.
The husband asserts that the parties lived in Property A until approximately early 2013 when they moved into Property B1. Property A was then tenanted.
In February 2014, the parties discharged the mortgage to the CBA of $215,699, which encumbered Property B1. They refinanced with …Finance and borrowed $283,622. The surplus funds of $55,661 were paid to the ANZ bank to reduce the mortgage secured against Property A. They retained a redraw facility on the Property A property.
The parties disagree about the application of the $55,661. The husband asserts that the funds were applied to fund the wife’s business endeavours. The wife asserts that the funds were earmarked for urgent drainage works, however, they were depleted by the husband, who engaged in excessive spending and drinking.
The wife asserts that the parties separated under the one roof in 2010 and that physical separation occurred in November 2014. In 2010 the wife obtained Centrelink benefits. The husband asserts that the marriage remained intact until physical separation on Cup Day in 2014.
Subsequent to physical separation in November 2014, the husband left Property B1, where the wife and [X] continued to live. The wife made an unsuccessful attempt to move into Property A in May 2018.
The husband claims he paid the mortgage secured against Property B1 as follows:
i)from October 2014 until April 2015, payment in full;
ii)for April, May and June 2015 interest only;
iii)from July 2015 to December 2015, payment in full.
Between May 2015 and July 2015 the parties corresponded about the payment of the Property B1 mortgage and outgoings.
In December 2015, the mortgagee of Property B1, …Finance issued a Notice of Default. The mortgage balance was then $280,691.55.
In January 2016, …Finance issued a Writ for Possession, which sought vacant possession of the property in March 2016. The mortgage balance was then $284,749.77.
On 30 June 2016, the mortgage to …Finance secured against the Property B1 property was discharged. The sum of $297,000 was paid to …Finance. The funds were advanced from either the wife’s mother, Ms K, or sister, Ms L.
The wife initially asserted that her mother had advanced further funds so that the sum of $465,000 is owing to her, which was notionally secured against the property. She then asserted that the sum of $550,000 was notionally referable to the mortgage encumbering Property B1.
Post November 2014, the rent from the Property A property was paid to the husband. He made some payments towards the mortgage secured against the property.
In April 2017, the husband moved in to Property A, although this is disputed by the wife.
The wife remains living in Property B1.
Procedural History
On 8 November 2016, the husband commenced proceedings in this court.
On 27 January 2017, the wife filed a Response.
On 30 January 2017, the first return date, the matter was listed before me. On that day I made procedural orders and listed the matter for a two-day trial beginning on 9 April 2018.
On 12 April 2017, the parties attended a conciliation conference. The husband was represented and the wife attended in person. The matter did not resolve.
On 8 February 2018, the matter was listed for mention and orders were made for a further conciliation conference.
On 24 April 2018, the parties attended a further conciliation conference, however, the matter remained unresolved.
On 18 July 2018, when the matter was listed for trial, it did not commence. It was adjourned with priority to 22 August 2018.
On 22 August 2018, the trial commenced and ran for three days. The matter was adjourned part-heard to 31 October 2018 and ran for a further 3 days.
On 22 August 2018, I advised the wife that she may wish to consult a duty lawyer to obtain advice, however she declined to do so. I also advised the wife of the requisite matters, in accordance with the guidelines referred to in Re F: Litigants in Person Guidelines (2001) FLC 93-072.
During the course of the proceedings, I permitted the wife’s friend, Mr M, to assist her as a McKenzie friend. Mr M is a legal professional and I have no doubt that he provided significant emotional and legal support to the wife throughout the proceeding. I am most grateful for his assistance to the wife.
The proposals of the parties
The husband’s proposal
The orders which the husband sought from the court are set out in his Amended Initiating Application filed 9 March 2018.
They are in summary as follows:
i)The husband:
a.Retain Property A and refinance the mortgage secured against the property to release the wife from liability;
b.Retain his car, bank accounts and superannuation;
c.Be liable for his ANZ credit card;
d.Receive a payment from the wife of $6,390.
ii)The wife retain:
a.Property B1 and her interest in Property B2;
b.Her shipping containers;
c.Her car, bank accounts and superannuation.
iii)The wife indemnify the husband against:
a.$465,000 or any further amount claimed by her, allegedly owing to Ms K and Ms L;
b.$55,000 allegedly owing to Ms K (for business construction costs).
iv)Each party otherwise retain their respective property.
Documents relied upon by the husband:
The husband relied upon the following documents:
i)Amended Initiating Application filed 9 March 2018;
ii)Affidavits of the husband filed 9 March 2018;
iii)Financial Statement filed 9 March 2018;
iv)Affidavit of Mr N (husband’s father) filed 6 August 2018;
v)Affidavit of Mr O (valuer) filed 19 July 2018;
vi)Outline of Case.
The wife’s proposal
The wife’s proposal was difficult to understand. She produced a document in response to my request for a minute of proposed orders, however that document was unclear as to the relief sought by her.
Eventually, assisted by her McKenzie friend, Mr M, she was able to articulate the orders she sought.
The final orders sought by her are set out in a document, Outline of Case, which the wife filed on 11 October 2018. She asserted that document complied with her obligations pursuant to order 5 of 24 August 2018. That order is as follows:
14 days prior to the adjourned date, the Respondent provide to the Applicant’s solicitors an indexed and paginated list of all documents she will seek to tender and or rely on and copies of such documents
The document does not comply with the requirements of order 5 of 24 August 2018.
The orders sought, in that document are as follows:
i)Property A be sold, proceeds divided:
a.Mortgage;
b.Cost of sale;
c.Balance to Ms K in contribution to Husband’s obligations. Wife liable for balance owed.
ii)Husband pay ongoing spousal maintenance, $250 p/w;
iii)Husband to remove all Caveats from Properties B1 and B2 and relinquish any and all claims.
Documents relied upon by the wife:
The wife relied upon the following documents:
i)Response filed 27 January 2017;
ii)Affidavit of wife filed 26 March 2018;
iii)Financial Statement filed 27 January 2017;
iv)Affidavit of Ms K (wife’s mother) filed 20 August 2018.
Evidence
The standard of proof in this case is the balance of probabilities (s.140 Evidence Act1995 (Cth)).
Section 140 of the Evidence Act1995 (Cth) provides:
(1) in a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject- matter of the proceeding; and
(c) the gravity of the matters alleged
The husband and the wife relied upon their respective affidavits. The affidavits recounted the history of the parties’ relationship pertaining to financial matters.
I do not intend to recite the evidence of all parties at trial. However, all of that evidence, together with the affidavits of the parties relied upon, the exhibits tendered and submissions made by Counsel for the husband, and the wife, has been considered and taken into account.
The following documents were tendered by the parties and received into evidence:
Exhibit Number
Document
Tendered by
W1 Husbands WA driver’s license Wife W2 Letter from ANZ dated 11 November 2009 Wife W3 Notice of Default – dated 5 November 2015 Wife W4 Court Notice to attend to Husband dated 15 May 2018 Wife W5 ANZ Equity Manager Statements Wife W6 Email from Husband to Wife dated 14 April 2015 Wife W7 Chain of text messages dated 9 December 2015 Wife W8 ANZ Equity Manager Account dated 18 October 2010 – 18 November 2010 Wife W9 ANZ Gold Visa Credit-Card Statements from 16 July Wife H1 Land data Title Search Husband H2 Copy of Transfer of Land Husband H3 Transfer of Land of Property B1 dated 5 May 2005 Husband
H4 Transfer of Property B1 Property Husband H5 Photographs of business equipment H6 Statements from …Finance to Mr Charnick between 12 February 2014 and 10 June 2016 Husband H7 Tax invoice to Ms Corles from …Plumbing & Drainage Pty Ltd dated 6 April 2017 Husband H8 Letters from Husbands Solicitors to wife Husband W10 Letter of Market appraisal dated 3 May 2005
Wife W11 Statement of Cheques from …Shire Council dated 5 May 2005 Wife W12 Letter from ANZ to Ms Corles – Notice of Variation to ANZ Equity Manager dated 14 September 2010 Wife W13 Letter to Ms Corles from Centrelink for Disability Support Pension – dated 23 July 2018 Wife W14 ANZ Bank Statements for Mr Charnick – 10 November 2014 – 10 August 2017 Wife W15 Historical Search Statement of Properties B1 and B2 Wife W16 Letter to Mr Charnick from Commonwealth Bank of Line of Credit between 16 July 2009 – 15 October 2009 & 19 January 2010 – 19 April 2010 Wife W17 Letter to Ms Corles from ANZ dated 2 August 2018 Wife W18 Multiple miscellaneous documents from Ms Corles Wife
W19
Email from Mr Charnick to Ms Corles dated 26 March & 29 March 2015 Wife
In Bell & Nahos [2016] FamCAFC 244 Strickland J addressed the obligations of a trial judge in that regard as follows: [28]-[29]:
Plainly that is the case, but it is not necessary in reaching a decision for a trial judge to refer to every piece of evidence or argument that is presented during a trial. That principle is well established in a number of authorities; I will mention two:
a) In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
b) In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 – 386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
I can see no error here in Her Honour’s failure to refer to all of the evidence of the mother in relation to this issue. Her Honour plainly considered the evidence that she needed to in order to the reach her decision.”.
Counsel for the husband prepared extensive lists of objections to the evidence of the wife. Some objections were resolved by consent. It was agreed that those objections not agreed would be argued and determined prior to the hearing. This is what occurred.
Both the wife and the husband gave evidence and were cross-examined. I therefore had the immeasurable benefit of observing both parties in the witness box for a considerable period of time and observing their demeanour in court throughout the proceedings.
The husband’s evidence during cross-examination was calm and controlled. He attempted to answer questions put to him by the wife and did not attempt to embellish answers in a manner particular favourable to his case. He was careful not to be overly critical of the wife. I accept his evidence as essentially truthful.
The husband’s father, Mr N gave evidence and he was cross-examined by the wife. He impressed me as a witness of truth.
Mr O, valuer, swore an affidavit which was filed on behalf of the husband on 19 July 2018. Annexure A of that affidavit is a valuation of the property situated at Property B2.
Mr O impressed me as a competent and truthful witness and I accept his evidence as to the value of Property B2.
The wife’s evidence and conduct was problematic. Throughout the whole six days of the trial she lacked impulse control, continually interrupted and interjected, was rude and disrespectful, raised her voice and yelled. She repeatedly did not provide answers to questions asked of her and took every opportunity to state and emphasise her perception of what had occurred during the marriage and the husband’s behaviour towards her. She had a myopic view of relevant events and could not entertain the prospect of any other version, other than her own.
In contrast to her daughter, Ms K was quiet, contained and respectful. She attempted to provide answers to questions asked under cross-examination. She obviously found the process of giving evidence and cross-examination difficult. I find she was generally a witness of truth, although, as expected, she was keen to support her daughter.
Where the evidence of the husband and wife differs, I prefer the evidence of the husband.
Where the evidence of the wife and her mother, Ms K differs, I prefer the evidence of Ms K.
Relevant legislation
Property proceedings between parties to the marriage are governed by the provisions of s.79 of the Family Law Act1975.
Section 79 (1) of the Act provides that the court may make such orders as it considers appropriate altering the interests of the parties in the property.
Section 79 (2) provides as follows:
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.
If the Court is satisfied that it is just and equitable to make an order altering the interests of the parties in property, s.79 (4) of the Act sets out the matters which the court must take into account when considering what order (if any) should be made.
That section provides as follows:
Section 79(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
Section 79(4) (a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
Section 79(4) (b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
Section 79(4) (c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
Section 79(4) (d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
Section 79(4) (e) the matters referred to in subsection 75(2) so far as they are relevant; and
Section 79(4) (f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
Section 79(4) (g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Prior to the decision of the High Court in Stanford v Stanford [2012] HCA 52 the preferred approach to determine property matters was set out by the Full Court in the matter of In the Marriage of Hickey [2003] FamCA 395.
The approach, as set out in Hickey (supra) may be summarised as follows:
i)Firstly, the court should make findings as to the identity and value of the property pool;
ii)Secondly, the court should determine the contributions of the parties both direct and indirect, including financial and non-financial contributions and then determine the contribution based entitlements of each of the parties; as a percentage of the value of the property of the parties;
iii)Thirdly, the court should determine whether any further adjustment should be made to the contribution based entitlements of the parties, after giving consideration to the relevant matters referred to in s.75 (2) of the Act;
iv)Fourthly the court should consider the effect of those findings and decide what order for division of property is just and equitable.
In Stanford (supra) the High Court noted that s.79(1) enables the court to make such orders as it considers appropriate. However, prior to making any orders for the adjustment of parties interests in property, the court must first determine whether it is just and equitable to make any property orders, or to alter the parties interests in property.
The High Court stated in Stanford at [37]:
[37] First, it is necessary to begin consideration of whether it is just and equitable to make 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……. The question posed by S79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.”
The High Court further stated at [42] that in most cases:
[42] 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 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 s 79(4).
In summary, in the majority of matters the decision as to whether or not it is just and equitable for the court to make property orders is resolved by the breakdown of the marital relationship and the mutual applications of the parties to the court for orders altering their respective property interests.
Is it just and equitable to alter the parties’ property interests?
In this matter the parties have separated and both parties have made an application to the court seeking orders altering their respective property interests.
The parties are no longer living in a marital relationship, and as stated at paragraph [42] of Stanford (supra), there will not ‘thereafter be the common use of property by the husband and the wife’.
I am satisfied that it is just and equitable to alter the parties’ property interests.
Having satisfied myself that it is just and equitable to make an order altering the interests of the parties in the property, the approach and considerations I must make are as follows:
(a)attribute value to the assets comprising the property pool;
(b)identify and give weight to the various contributions of each of the parties as set out in s.79 (4) (a) – (c) and make an assessment as to the entitlements of the parties based on their respective contribution;
(c)identify the identify the relevant considerations as set out in s.79(4)(d)-(g), including the matters set out in s.75 (2) so far as they are relevant, and then decide whether any further adjustment is appropriate;
(d)consider whether the proposed orders are to equitable.
Preliminary Issue – the Date of Separation
The parties were unable to agree about the date of separation.
The husband asserts that separation took place in October 2014, when he vacated Property B1. The wife, and the parties’ daughter, [X] remained living in the family home.
The wife asserts that the parties separated under the one roof in April 2010. She agrees with the husband that physical separation took place in November 2014.
The wife’s evidence was that in April 2010 she registered with Centrelink and obtained a disability support pension, on the basis that she was a single parent with one dependent child. She continues to receive a disability support pension. Paragraph 3 of her affidavit sworn 26 March 2018, refers to her history of injuries whilst employed at the DHHS, which culminated in her eventually receiving a disability support pension.
At the date of alleged separation under the one roof, the husband was and continues to be, a tradesman and was obviously away from home for extended periods.
Subsequent to April 2010 the parties continued their financial relationship including purchasing and renovating properties together.
Paragraph 46 – 57 of the wife’s trial affidavit refer to the continuing joint finances, experiences and shared domestic life of the parties. Paragraph 49 refers to the parties having a holiday in Countries A and B together in 2012.
The wife makes many serious complaints about the husband’s conduct between April 2010 and November 2014, when she states at paragraph 58, that the husband moved into Property A.
The picture painted by the wife’s evidence of the parties life between 2010 and October 2014 does not support that the parties separated under the one roof as from April 2010. There is a sense of shared domesticity, shared family life and financial intermingling, with many and varied complaints about the husband’s conduct.
Husband’s father, Mr N, at paragraph 8 of his affidavit filed 6 August 2008 deposes as follows:
i)from his observations the parties continued their marriage until the end of 2014;
ii)until the end of 2014 they continued to live together as a couple;
iii)prior to that time neither party told him the relationship had ended.
Mr N was not cross-examined about paragraph 8 of his affidavit.
After having considered the evidence of both parties and relevant witnesses, both in the affidavits and under cross examination, I find that the parties separated in October 2014.
The parties existing interests in property
The husband’s Outline of Case document listed the assets and liabilities which included personal liabilities of the husband.
At the commencement of the trial, Counsel for the husband prepared an asset and liability statement, indicating which assets the party sought to include and exclude in the pool and the differing values of those assets.
Page 3 of the wife’s Outline of Case filed 11 October 2018 lists her amended asset pool.
The agreed assets and liabilities are as follows:
| Asset | Valuation | PARTY |
| Property A | $515,000 – | Husband |
| 1x 40 ft “business equipment” | $30,000 (h) $ 5,000 (w) | Wife |
| Motor Vehicle 1 | $ 3,000 | Husband |
| Motor Vehicle 2 | $3,000 (w) | Wife |
| Liabilities | ||
| Mortgage secured over Property A | $270,000 | Husband |
| Superannuation | ||
| Super Fund M | $113,000 | Husband |
| Wife’s Super | $ 55,000 | Wife |
| Sub – total | $168,000 | |
| Nett Total Assets (Incl. Superannuation) | $ |
The additional assets/liabilities the husband sought to include/exclude were as follows:
| Asset | Valuation | PARTY |
| Property B1 | $600,000 – | Wife |
| Property B2 | $330,000 | Wife |
| 1x 40 ft “business equipment” | $30,000 (h) $ 5,000 (w) | Wife |
| Liability | ||
| Mortgage secured over Property B1 ( as at 15 February 2016) | $285,000 | Wife |
The additional assets the wife sought to exclude were:
| Asset | Valuation | PARTY |
| Property B1 | $600,000 – | Wife |
| Property B2 | $ 179,000 | Wife |
| 1x 40 ft “business equipment” | $30,000 (h) $ 5,000 (w) | Wife |
The additional liabilities the wife initially sought to include were:
| Liabilities | Valuation | PARTY |
| Mortgage secured over Property B1 ( as at 15 February 2016) | $465,000 | Wife |
| Debt owed to wife’s mother, Ms K | $245,000 | Husband |
| Total | $710,000 |
During the course of the trial, the wife amended the characterisation of the sums she claimed should be included as liabilities in the pool[2]. These were as follows:
[2] Wife's Outline of Case document filed 11 October 2018 at page 3 of 10.
| Liabilities | Valuation | PARTY |
| Mortgage secured over Property B1 ( as at 15 February 2016) | $550,000 | Wife |
| Debt owed to wife | $100,000 | Husband |
| Total | $650,000 |
Treatment of disputed assets
In order to identify the existing legal and equitable interests in property of the parties, I must consider how to treat the assets/liabilities which both parties claim should be included/excluded from the asset pool. I will address each of the disputed asset/liabilities in turn.
Disputed assets/liabilities husband seeks to include in the pool
Property B1
In 2005, the parties purchased the property from the wife’s sister Ms L. The husband was the sole registered proprietor on 5 October 2005.[3]
[3] Exhibit H3 transfer of land dated 5 October 2005.
A title search of the property, which is exhibit H1 demonstrates that:
i)in …1924, the joint proprietors of the property were Mr & Mrs P;
ii)on …1946, Mr Q, Ms R and Ms S were the registered proprietors;
iii)on …1967, Mr & Mrs T were the registered proprietors;
iv)on …1972, Mr & Mrs U were the registered proprietors;
v)on …1972, Mr & Mrs V were the registered proprietors;
vi)on …1975, Mr & Mrs W were the registered proprietors;
vii)on …1980, Mr X was the registered proprietor;
viii)on …1986, the joint proprietors of the property were Mr & Mrs Y;
ix)On …1988, the property was transferred to Mr & Mrs Z, who are the wife’s uncle and aunt;
x)On …1999, Ms K, the wife’s mother, purchased the property from Mr & Mrs Z for the consideration of $95,000;
xi)On …2007, the wife’s mother transferred the property to the wife. The consideration on the transfer of land was $80,000.
The husband’s evidence about the purchase of the property is as follows:
i)in 2005, the husband and wife purchased the property from the mother’s sister, Ms L;
ii)the consideration was $115,000; with $100,000 of the purchase price deferred;
iii)the husband was the sole registered proprietor of the property;
iv)nominal amounts were paid to Ms L at the date of acquisition of the property;
v)in 2010, following the sale of Property C2 the sum of $110,000 was paid to Ms L, being the purchase price together with interest of $10,000;
vi)the property was transferred to the wife in June 2016 to enable the discharge of the …Finance mortgage.
The evidence of the husband’s father, Mr N is as follows:
i)he was not present at a meeting in 2005, when the wife asserts he was present at a discussion that Property B1 would be transferred from the wife’s sister to the parties as custodians of sacred land, and that 70% of the property was to be held on trust for the wife’s mother;
ii)neither the husband, the wife, or the wife’s mother discussed any such arrangement with him in 2005 or subsequently;
iii)the first he knew that the wife was asserting that Properties B1 and B2 did not belong to the parties, was after the commencement of this proceeding.
The wife’s evidence about the purchase of the property[4] is as follows:
[4] Paragraph 23 of the wife's affidavit filed 27 January 2017.
i)In 2007, the parties ran out of money to complete building on Property C2;
ii)the wife approached the ANZ bank to obtain finance and offered the title to Property B2; however the bank required Property C2 as security;
iii)the husband refused to allow Property C2 as security;
iv)she approached her sister to acquire Property B1, to enable the parties to obtain finance to complete construction;
v)Ms L agreed to transfer the property to the husband for $100,000 together with interest, to be paid within two years of the transfer;
vi)the title to Property B1 was transferred in to the husband’s name;
vii)the parties obtained a $180,000 loan from CBA secured against Property B1, which was disbursed as follows:
a.$80,000 to discharge Ms L’s mortgage to;
b.$100,000 for the building costs of Property C2.
viii)upon settlement of the sale of Property C2 in 2010, Ms L was paid $110,000, comprising the purchase price of $100,000 and $10,000 interest;[5]
ix)at paragraph 21 of the wife’s affidavit filed 26th of March 2018, she states:
“not a cent was exchanged, we did promise to gift Ms L $100,000K +10% interest, however this did not ever eventuate, [as we borrowed 100 K to complete Property C2 build from Ms L in 2008, paying her back 110 K in June 2009]
x)at paragraph 28 of her affidavit filed 26 March 2018, the wife deposes that Ms L advanced $110,000 to enable the completion of construction of Property C2;
xi)At paragraph 30 of her affidavit filed 26 March 2018, the wife refers to repayment to Ms L of $110,000 as a repayment of monies advanced for building costs. She also deposes that the husband agreed with Ms L to pay her $100,000 +10% for the transfer of Property B1 to him, however this never eventuated.
[5] paragraph 30 of the wife's affidavit filed 27 January 2017
The wife’s evidence under cross-examination was consistent with her evidence set out in the affidavit of 26 March 2018.
The wife’s sister Ms L did not swear an affidavit about this issue, and I am again entitled to infer that her evidence would not have assisted the wife.
The wife’s first version of the acquisition of Property B1 set out in her affidavit of 27 January 2017, which was prepared by her then Solicitor and filed on her behalf, is consistent with the husband’s evidence.
The wife tendered as exhibit W10 an appraisal letter dated 3 May 2005, as to the value of Property B1, at between $185,000 and $200,000. That value is consistent with the purchase price of the property paid by the husband and wife, namely $80,000 to discharge Ms L’s mortgage and an additional $100,000 paid to Ms L.
I prefer the evidence of the husband and that of the wife as referred to in her affidavit of 27 January 2017. I find that the sum of $110,000 which was paid to Ms L following the settlement of the sale of Property C2, was referable to the payment of the balance of the purchase price of Property B1.
Property B2
There are two disputes pertaining to this property, namely:
i)should the property be included in the asset pool;
ii)if so, the value of the property.
The husband’s evidence about the acquisition of the property is as follows[6]:
i)at the commencement of cohabitation the block of land was registered in the wife’s mother’s name;
ii)after the wife and her first husband finalised their property settlement, the property was transferred into the wife’s name;
iii)after separation, in around May 2015 the wife transferred the property to her sister, Ms L;
iv)the property was never used as security to obtain finance during the marriage.
[6] The husband's affidavit filed 9 March 2018 at paragraph 27.
The wife’s evidence about the acquisition of the property is as follows:
i)After she and the husband married she requested her parents to transfer the title of the property to her, so that she had security to borrow funds to jointly develop Property C2;
ii)Her parents agreed to do so;
iii)The transfer was on the understanding that she held it on trust as to 70% for her mother and 30% for herself;
iv)The husband was aware of the arrangement and was part of discussions with her parents.[7]
[7] Wife's affidavit filed 27 January 2017 at paragraph 21.
The wife was cross-examined by counsel for the husband, and the following propositions were put to her:
i)the wife was previously the registered proprietor of the property;
ii)she transferred that the property to her parents prior to or around the time of the breakdown of her first marriage;
iii)the property was then retransferred to the wife;
iv)a new building was currently being constructed on the property, which incorporated one of the wife’s shipping containers;
v)the wife was involved with the council to obtain the necessary building permits for the construction of the building;
vi)on 10 March 2017, the wife paid on account to a surveyor for $7700, and claimed she owed that money to her mother;
vii)in June 2017, a building permit was issued for construction on Property B2;
viii)the wife claimed the surveyor’s account was for Property B1, was in fact a survey required for the construction of the building on Property B2;
ix)the wife professed to have particular skill and expertise in construction and property development;
x)The construction at Property B2 was the wife’s project and not her sister’s project.
I have previously remarked in these reasons the wife’s sister, Ms L did not swear an affidavit or give any evidence about the true ownership of Property B2, nor the construction project on the property. That is a significant failure in the wife’s case, and I infer from the wife’s failure to adduce evidence from Ms L, that her evidence would not have been of assistance to the wife.
At paragraph 26 of her affidavit filed 26 March 2018, the wife deposes that the property was to be held by her upon trust as to 70% for her mother and the remaining 30% on behalf of her sister, Ms L.
Subsequent to separation, the wife transferred Property B2 to her sister, Ms L in May 2015. There was no consideration paid by Ms L.
There was no explanation offered by the about the circumstances giving rise to the transfer to Ms L.
Neither the wife’s mother, Ms K, nor her sister, Ms L swore affidavits about the circumstances of the transfer of the property to Ms L.
Ms K swore an affidavit, which was filed in the proceedings and which was prepared by the wife. The affidavit made no reference to the circumstances of the transfer of the property to Ms L. I do accept that Ms K may not have been involved in the transfer of the property between her daughters, however she seems to have been historically involved in the transfer of both of the Properties B1 and B2 properties between family members.
Ms L was present in court for many days and there was no explanation offered as to why she did not give evidence about this highly relevant matter.
I am entitled to draw an inference that the evidence of Ms L would not have assisted the wife in accordance with the principles in Jones & Dunkel (1959) 101 CLR 298.
Counsel for the husband in her final address submitted:
i)I could readily conclude that the wife was still the owner of Property B2;
ii)the wife’s evidence was that had always been her intention to build a dream home on the property;
iii)the building project on the property was in fact her building project;
iv)the property should be included in the asset pool.
After considering all relevant evidence, I am persuaded by the submissions of the husband’s counsel, referred to in the preceding paragraphs, that the property should be included in the asset pool for division between the parties.
I do note that there was no application by the husband, pursuant to s106B of the Act, to set aside the transfer of the property to Ms L.
In relation to the value of the property, the wife estimated it was worth $179,000. There was no evidence as to the basis of that value. The wife did not adduce any expert valuation evidence.
The husband obtained a valuation from Mr O, a valuer who swore an affidavit, which was filed in the proceeding on 19 July 2018. Annexure A to that affidavit is a valuation of the property as at 17 July 2018.
Mr O was cross-examined by the wife about the basis of the valuation, and in particular the comparable valuation evidence relied upon by him. I am satisfied that Mr O gave evidence in a professional and competent manner and provided a plausible explanation and methodology for his valuation.
I accept Mr O’s evidence as to the value of Property B2.
Wife’s sacred cultural connection with the Properties B1 and B2 properties
The wife claims that the Properties B1 and B2 properties are her family’s sacred cultural spiritual land.[8] As a result, both properties should be excluded from the asset pool. She refers to her aboriginal heritage and the fact that the properties were and are considered ancestral sacred land, at paragraph 21 of her affidavit filed 27 January 2017.
[8] Wife's affidavit filed 26 March 2018 at paragraph 14.
In her affidavit filed 26 March 2018 at paragraph 14, she deposes to her indigenous family history. In summary:
i)her great-grandmother was born in Town 1, Victoria in 1886;
ii)her grandmother was born in Town 2 in 1911;
iii)her grandmother lived in Town 3, New South Wales and was a member of the stolen generation;
iv)her mother was born in Adelaide and thereafter returned to Town 3;
v)the wife was born in Suburb D Hospital in 1972.
In the same paragraph, she deposes:
“Our families cultural and spiritual connection to country, dreamtime and spiritual ancestors at Properties B1 and B2”.
A title search of the property, which is exhibit H1 demonstrates that :
i)in …1924, the joint proprietors of the property were Mr & Mrs Q;
ii)on …1946, Mr Q, Ms R and Ms S were the registered proprietors;
iii)on …1967, Mr & Mrs T were the registered proprietors;
iv)on …1972, Mr & Mrs U were the registered proprietors;
v)on …1972, Mr & Mrs P were the registered proprietors;
vi)on …1975, Mr & Mrs W were the registered proprietors;
vii)on …1980, Mr X was the registered proprietor;
viii)on …1986, the joint proprietors of the property were Mr & Mrs Y;
ix)On …1988, the property was transferred to Mr & Mrs Z, who are the wife’s uncle and aunt;
x)On …1999, Ms K, the wife’s mother, purchased the property from Mr & Mrs Z for the consideration of $95,000;
xi)On …2007, the wife’s mother transferred the property to the wife. The consideration on the transfer of land was $80,000.
Members of the wife’s extended family were first registered as proprietors of the property in 1988.
Ms K’s affidavit at paragraph 3, states as follows:
…in reference to our Properties B1 and B2 generational property provided, held in trust; 70% ownership is for my lifetime; to be equally shared between my two youngest daughters; Ms Corles and Ms L, their custody or responsibility to protect, with [X] being the recipient of the next generational custodial owner; connection with her ancestral spirits/culture:…
Despite that assertion, there is no explanation offered by Ms K as to the family’s asserted sacred generational connection to the Properties B1 and B2 properties.
The wife did not adduce evidence from her sister Ms L about the family’s spiritual connection to the two Properties B1 and B2 properties. As previously referred to, she attended many days of the trial. In accordance with the principles of Jones & Dunkel (supra) I am entitled to infer that her evidence would not have assisted the wife.
The wife did not adduce any expert evidence about spiritual connection to that particular country, nor any evidence why monetary consideration had been paid to acquire the land by members of her own family.
Having considered the limited evidence about this issue, I do not accept that the Properties B1 and B2 properties are sacred spiritual properties and should be excluded from the asset pool.
Shipping Containers
During the marriage the wife embarked upon a project to convert shipping containers. These are referred to as shipping containers. She asserted this was linked to a proposed doctoral thesis.
There is a dispute between the parties about:
i)whether the wife is the owner of two shipping containers, or one; and
ii)the value of the shipping containers;
iii)the source of funds used to develop the shipping containers.
The husband contends that both shipping containers should be included in the asset pool for division between the parties, as they were constructed during the marriage, and from a drawdown of the mortgage secured against the Property A property. The value should be the cost of construction, namely $55,000.
The wife asserts that the shipping containers should be excluded from the asset pool because the construction was funded by her mother advancing $55,000 or thereabouts from her superannuation. She also asserts that her mother is the owner of one of the shipping containers, notwithstanding that one is located on Property B1 and the other is located on Property B2, and is being incorporated into the construction of the property on Property B2.
The husband alleges that the sum of approximately $55,000, which was the excess redraw facility with …Finance, which was secured against Property B1 was spent by the wife fitting out two shipping containers, which are referred to as …shipping containers.
The wife asserts that the $55,000 which was notionally allocated for drainage works, was spent by the husband on excessive spending and drinking. She refers to the cost of the husband’s 40th birthday party.
She asserts that her mother provided her with $55,000 from her superannuation entitlements to construct and/or fit out the two shipping containers, and that one of the shipping containers belongs to her mother.
The affidavit of Ms K, the wife’s mother, filed 20 August 2018 does not refer to the advance of funds to construct the shipping containers, nor does it refer to Ms K’s ownership of one of the shipping containers.
The Wife’s evidence was that the $55,000 redraw facility was earmarked to pay urgent drainage works at Property B1 and was not applied towards the construction costs of the shipping containers.
During cross-examination of the wife by the husband’s counsel it became apparent that:
i)the invoice which the wife produced to substantiate the alleged drainage works was dated 6 April 2017 and is Exhibit H7;
ii)She did not produce any invoices for urgent work done in 2014;
iii)the invoice did not relate to urgent flood damage and drainage;
iv)the invoice was for other work to the property including installing wires and cold water pipes and cutting a site for relocation of the shipping containers.
Absent any other credible evidence about the source of funding of the construction of the shipping containers, I have no alternative other than to find the construction costs were funded from the redraw facility secured against Property A.
I am also satisfied that the wife is the owner of both shipping containers.
In relation to the valuation of the shipping containers, neither party adduced any evidence of their current value. As I am unable to assess the current value of the assets, there is little utility including them in the asset pool.
I intend to take into consideration pursuant to s.75(2)(o) the following:
i)the wife’s expenditure of the funds on the shipping containers construction;
ii)the wife’s possession of the shipping containers.
Disputed assets the wife seeks to exclude from the pool
The wife seeks to exclude from the pool the two properties, Property B1 and Property B2.
If Property B2 is included in the pool, she also disputes the value of that property.
I refer to paragraphs 109 – 118 and 119 – 132 hereof pertaining to the inclusion/exclusion of the properties from the pool, and my relevant findings.
I refer to my findings pertaining to the shipping containers at paragraphs 148 – 161 hereof.
I find that both Properties B1 and B2 and both shipping containers should be included in the asset pool.
Liability previously secured against Property B1.
As referred to elsewhere in these reason, at the time of acquisition of the property from Ms L, the parties obtained a mortgage of $180,000 from CBA. The funds advanced discharged Ms L’s existing mortgage of $80,000 and the balance was applied towards construction costs of Property C2.
In February 2014, mortgage to the CBA encumbering Property B1 was $215,699. The parties refinanced the CBA mortgage with …Finance. The payout figure of the …Finance mortgage in June 2016 was $297,000.
The husband accepts that the mortgage balance was $280,691.55 in December 2015 and in January 2016 was $284,749.77.
He submits that the notional liability of the mortgage referable to Property B1 should be $285,000. Any amount exceeding that liability should be the responsibility of the wife.
The wife submits that the husband should be responsible for the actual payout figure of the mortgage in June 2016, together with additional amounts, which she submits were advanced by her family between 2010 and 2014 and interest.
In her document headed Outline of Case, filed on 11 October 2018, the wife asserts that the joint notional liability reference to Property B1 is $550,000. Additionally the husband owes the wife $100,000.
In June 2016, when the mortgage was discharged with the payout to …Finance being $297,000. The husband was not involved in the discharge of the …Finance mortgage.
After separation, the husband claims he continued to pay the Property B1 mortgage as follows:
i)from October 2014 until April 2015, payment in full;
ii)for April, May and June 2015 interest only;
iii)from July 2015 to December 2015, payment in full.
The husband’s evidence in relation to payment of mortgage instalments referable to Property B1 post separation is as follows:[9]
[9] paragraphs 30 – 37 of the husband's affidavit sworn 8 March 2018
i)he was unable to meet the mortgage repayments for Property B1 as well as his own living expenses and child support obligations of approximately $744 per month;
ii)he negotiated with the bank to reduce monthly instalments of the Property B1 mortgage from $1,566 per month to $500 per month;
iii)on 30 June 2015 and 10 July 2015 he forwarded letters to the wife advising he would be unable to pay the mortgage payments;
iv)he ceased making the mortgage payments after November 2015;
v)on 12 December 2015, he sent the wife via SMS payment details for the mortgage, prior to the due date of the next payment;
vi)around 15 March 2016, he received a notice of foreclosure from the mortgagee, …Finance;
vii)on 15 May 2016, he received an SMS from the wife asking him to call the solicitors for …Finance. In that text, the wife advised that she had received a notice to vacate on 23 March 2016;
viii)on 23 May 2016, he received a text from the wife advising that her mother had engaged a lawyer, to resolve the situation with the mortgagee;
ix)On 25 May 2016, he received a letter from Anne Gambettta, lawyer enclosing a discharge of mortgage, to enable the …finance mortgage to be discharged.
The husband’s evidence about payment of the Property A mortgage is that he made some mortgage payments in early 2015, but did not pay the full mortgage instalments which were about $1200 or $1300 per month, despite receiving the rental income from the property.
During the process to discharge the Property A mortgage, the husband executed a transfer of land in favour of the wife. He asserts the wife told him a transfer of the property into her name was required to refinance the mortgage.
The wife’s evidence about the payment of the mortgage secured against Property B1 post separation is as follows:
i)She agrees with the payments asserted by the husband towards the Property B1 mortgage;
ii)the husband deprived her of the opportunity to pay mortgage payments, because he withheld from her the rent from Property A during 2015;
iii)during the time he withheld the rental income from Property A, the husband did not pay all of the mortgage payments referable to Property A and Property B1.
I accept the wife’s evidence about the receipt of rental income from Property A and the payment of the two mortgages during 2015 and early 2016.
After having considered the evidence of both parties, I find that the notional mortgage attributable to Property B1 should be $297,000, which was the amount required to discharge the …Finance mortgage.
Debt owed to Ms K and or Ms L
The wife initially claimed that the husband is indebted to her mother, Ms K, in the sum of $245,000.
This liability was allegedly incurred as a result of the husband’s excessive expenditure.
The amounts which the wife claimed the husband owed her mother differed throughout the course of the proceedings.
In her Outline of Case document filed on 11 October 2018, the wife claims that the notional mortgage liability secured over Property B1 is $550,000 and additionally the husband owes the wife $100,000.
It is my understanding that these amounts changed as a result of the wife examining various bank statements and speaking to her mother about interest which she asserts attaches to amounts advanced by her mother. The evidence as to calculation of the amounts claimed by the wife was confusing and difficult to understand.
During cross-examination, Ms K, in response to a question was unable to say how much she alleged the husband owed her as a result of money she had advanced to him during the marriage.
Her evidence as to whether any amounts advanced were loans or gifts was equivocal. At the highest, her evidence was that there was an expectation of repayment sometime in the future, but there was never any specific discussion about repayment.
Ms L did not give evidence about the calculation of the alleged debt owing to her or her mother.
As best as I am able to understand, the wife initially claimed that of the $245,000 the husband owed her mother, $144,000 was accrued as follows:
i)amounts advanced by Ms K to subsidise the husband’s excessive spending on his ANZ credit card to the extent of $60,000;
ii)the sum of $64,000 approximately referable to excessive spending from the joint ANZ account.
The wife tendered bundles of the husband’s ANZ credit card statements and the joint ANZ Equity Manager Account as Exhibit W9 and W14.
Exhibit W9 are the statements of the husband’s ANZ frequent-flier Gold Card from 16 July 2013 to 10 July 2017.
Exhibit W14 are other statements of the husband’s ANZ frequent-flier card from 16 September 2014 to 10 August 2017, which have been marked up by the wife in various colours, which she alleges are indicative of the husband’s excessive spending.
During cross-examination of the husband by the wife, the wife put to him in general terms the assertion that he had engaged in excessive spending from both the credit card account and the ANZ Equity Manager joint account. She referred to some examples of what she considered excessive spending.
The husband’s response was that from 2009 onwards he was a tradesman and he was required to fund his road expenses.
During the periods in question the husband’s income was deposited into the joint ANZ account, to which both parties had access.
In her final address Counsel for the husband, submitted:
i)some of the amounts allegedly advanced by the wife’s mother were paid in cash. Specifically, on 21 November 2011, 9 December 2011 and 12 December 2011, when $5,000 cash was paid on each occasion;
ii)The husband had repeatedly advised the wife in post separation emails that he had no knowledge of the alleged amounts owing to the wife’s family.
On numerous occasions during the trial, the wife was invited to provide evidence as to the basis of her calculations about how much money was owing to her mother, and or her sister, over and above the $297,000 which was paid to …Finance.
I also indicated to her that she should collate all source documents which would prove her calculations and that these should be collated in an indexed and paginated court book. On 24 August 2018, I made an order as follows:
14 days prior to the adjourned date the respondent provide to the applicant solicitors an indexed and paginated list of all documents she will seek to tender and or rely on and copies of any such documents.
When the trial resumed on 29 October 2019, the wife submitted that the Outline of Case document she had filed on 11 October 2018 complied with her obligations pursuant to that order. The Outline of Case document does not comply with the order.
The wife sought to tender various documents to ostensibly prove the calculation and basis of her claim. I permitted her to tender various bundles of bank statements and other documents. However, the documents tendered did not provide evidence of the basis of her calculations and proof of her claims.
I am satisfied that the wife was accorded procedural fairness on many occasions to present her evidence of the amounts claimed by her as owing by the husband. Her evidence fell far short of providing the basis of her calculations or indeed proving that there was any liability of the husband in the amount claimed, or at all.
In the absence of evidence of certainty when any amounts were advanced, the quantum of such amounts and the terms of any such advances, I am unable to find that any particular amount is owing to the wife’s family. I will however take into consideration pursuant to s.75(20(o) of the act, that some monies were likely have to be to have been advanced by the wife’s family.
Conclusion as to the existing legal and equitable interests of the parties
As a result of the findings set out herein, the net available asset pool for distribution between the parties is as follows:
| Asset | Valuation | PARTY |
| Property A | $515,000 | Husband |
| Property B1 | $600,000 | Wife |
| Property B2 | $330,000 | Wife |
| Motor Vehicle 1 | $3,000 (h) | Husband |
| Motor Vehicle 2 | $3,000 (w) | Wife |
| Liabilities | ||
| Mortgage secured over Property A | $270,000 | Husband |
| Notional mortgage secured against Property B1 | $297,000 | Joint |
| Credit card | $6,000 (approx.) | Husband |
| Sub – total liabilities | $573,000 | |
| Nett total non-superannuation assets | $878,000 |
| Superannuation | ||
| Super Fund M | $113,000 | Husband |
| Wife’s Superannuation | $55,000 | Wife |
| Sub – total | $168,000 | |
| Nett Total Assets (Incl. Superannuation) | $1,046,000 |
CONTRIBUTIONS
Financial contributions s.79(4)(a)
Initial contributions
The respective assets of each of the parties at the commencement of cohabitation are not particularly controversial. At the commencement of cohabitation the husband had the following assets:[10]
i)his equity of approximately $11,000 in the property situated at Property C1;
ii)a motor vehicle;
iii)modest superannuation entitlements.
[10] Paragraph 45 of the wife's affidavit sworn 18 January 2018.
At the commencement of cohabitation the wife had the following assets:
i)a motor vehicle which had been purchased for $54,000 in 1998;
ii)household furniture;
iii)modest Superannuation entitlements.
Contributions during the marriage
During the marriage the husband was employed, initially as a tradesman and then a tradesman.
The wife was employed as a health professional by the Employer until 2010. She earned an income of approximately $35,000 per annum .She was on sick leave from her position from 2010 until March 2016. She is currently in receipt of a disability support pension.
Both families contributed to the renovation of the Property C1 property, including cash advances and the wife’s father assisting with the building work.
During the relationship the wife’s mother transferred to her the property situated at Property B2, which the husband asserts, had been transferred to the wife’s mother, to “quarantine” the property from the asset pool to be divided between the wife and her former husband.
Apart from some contribution towards the rates of Property B2 and nominal maintenance works, the husband concedes that the property was contributed by the wife. Neither party submitted that I should assess contributions on an asset by asset basis.
Both parties participated in the development and construction of the Property C properties Property B properties and Property A property.
Both parties had access to the equity management account secured against the Property A property.
The wife asserts:
i)the husband engaged in excessive expenditure which was tantamount to waste during the relationship;
ii)her family made significant contributions to subsidise the excessive expenditure of the husband both on his credit card and from the ANZ equity management account.
However, there is insufficient evidence to enable me to any such finding, other than:
i)I consider it probable that the wife’s mother has advanced funds to the wife during the marriage;
ii)The quantum, application and disposition of those funds is unable to be ascertained.
I refer to paragraphs 181 - 201 hereof which relate to the wife’s assertions of the husband’s indebtedness to her family.
The husband asserts that the wife retained her pension monies for her own benefit in a separate bank account.
I am satisfied that during the relationship both parties financially contributed to the extent of their respective ability.
Contributions post-separation
Subsequent to separation, the wife remained living in the Property B1 property with the parties’ daughter. The husband vacated the family home on Cup Day 2014.
In lieu of child support, the husband pays their daughter’s private school fees of approximately $11,000 per annum.
The husband continued to pay some of the payments due for the mortgage encumbering Property B, as referred to earlier in these reasons. From the commencement of 2015, the husband retained the rental income from the Property A property. He made payments into the joint ANZ equity management account, which he asserts are referable to some of the mortgage payments of Property A
During 2015, the monthly mortgage payments for Property A were between $1200 and $1300. The wife claims the husband “deprived her of her capacity” (to pay both mortgages) by retaining the Property A income. She characterises that as controlling and coercive behaviour.
Section 79(4)(b) Non-Financial Contributions
Both the husband and the wife claimed they made non-financial contributions during the course of cohabitation. The extent and nature of those contributions was not particularly disputed.
The wife’s evidence is that she was the primary homemaker and parent and that was accepted by the husband.
Post separation, the wife has been primarily responsible for the care of the child. The husband has spent time with the child by agreement.
Wife’s Kennon Claim
The wife asserted:
i)she was a victim of the husband’s controlling and coercive behaviour;
ii)the husband had perpetrated physical, verbal, financial, emotional and psychological abuse during the marriage and subsequent to separation;
iii)his violence was fuelled by binge drinking and abuse of prescription and illegal drugs;
iv)she obtained an intervention order against him, which he breached;
v)as result of the breaches, the husband was charged and placed on a diversion program.
In order for the wife to succeed and prove that the husband’s alleged conduct is relevant to assessing contributions, she must demonstrate that her capacity to contribute was more onerous because of that conduct. In the Marriage of CK and I W Kennon (1997) 22 Fam LR1
It was not clear how the wife asserted that his conduct had made her contributions more onerous. I do not intend to make any adjustment resulting from this aspect of the wife’s claim.
The section 79(4)(d),(e),(f) and (g) and the section 75(2) factors
Section 79(4)(d): the effect of any proposed order upon the earning capacity of either party to the marriage.
The property orders which I propose to make will not have any effect upon the earning capacity of either party. The husband will be able to continue his employment as a tradesman. The wife is on a disability pension, which will continue and will be able to engage in part-time work as a professional.
Section 75(2) matters to be so taken into account are:
(a) the age and state of health of each of the parties
The husband is aged 49 and enjoys reasonable health. The wife is aged 46 and has numerous health problems. She receives a disability support pension and has done so since 2010.
(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
The property and financial resources of the parties are referred to in these reasons. There was no dispute that the husband has the physical and mental capacity to continue with his current employment. There is also no dispute that the wife is in receipt of a disability pension and that her capacity to obtain employment is limited.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
The parties’ daughter, [X] aged 15, will continue to live with the wife and spend time with the husband by agreement.
(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
The commitments of each of the parties that are necessary to support himself /herself are set out in their respective financial statements.
Neither party was cross-examined about the expenses claimed in the financial statements.
(e) the responsibilities of either party to support any other person; and
Each party has a responsibility to contribute towards the support of the child.
Since separation the husband has paid private school fees for [X], in lieu of periodic child support.
Apart from the responsibility to contribute to [X]’s support, there was no evidence that either party had responsibilities to support any other person.
Section 79(4)(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
The wife currently receives a disability support pension. The husband is not eligible for any such benefit.
(g) Where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
The orders which I intend to make will result in the husband retaining the Property A property, subject to the existing mortgage.
The wife will retain Property B1, subject to the existing mortgage, together with her interest in Property B2.
Both parties will be able to adequately house themselves, as they have done so since separation.
The wife will continue to receive a Disability Support pension, income from her activities as a professional and income from her boarders.
If the husband continues in his current employment, he will earn a reasonable income, which will enable him to support himself.
(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
There was no evidence that the wife had contemplated embarking upon any further education or training to enable her to adequately secure an income.
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and your current the just
This is not a relevant consideration.
(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
The evidence of the wife’s contributions are referred to in these reasons
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
The parties cohabited for approximately 5 years prior to the marriage, and they were married for just under 9 years.
The wife has not been in employment since 2010, resulting from a workplace injury. Her injury has affected her earning capacity.
The husband’s earning capacity has not been affected by the duration of the marriage .
(l) the need to protect a party who wishes to continue that party’s role as a parent; and
250. The wife will be able to continue in her role as a parent.
(m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
This is not a relevant consideration.
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
I am satisfied that the orders I intend to make under s.79 enable both parties to adequately maintain themselves.
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; 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
This is not a relevant consideration.
(na) any child support under the Child Support (Assessment) Act 1989that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
The husband contributes to the financial support of the parties a 15 year old daughter.
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
Wife’s claim for total and permanent disability
The wife’s financial statement sworn 27 January 2017, at Part O states as follows:
Expectation of a total and permanent disability insurance, Vic super payout in the sum of approximately $234,006, final payment to be determined.
Counsel for the husband cross-examined the wife about the status of the claim. The wife’s evidence under cross-examination was as follows:
i)application was still “on foot”;
ii)she was unable to say when it was likely to be determined;
iii)she continually asks Super Fund who are the underwriters of Vic Super when a determination will be made;
iv)the application is for total and permanent disability pursuant to her superannuation scheme;
v)the application was lodged in April 2017 and could take approximately two years to be assessed;
vi)there was no mention in her affidavit because she was trying to seek money for her future support; it had
vii)she asserted that she had previously provided superannuation statements to the husband’s solicitors, however this was denied by the husband’s counsel.
After hearing the wife’s evidence, I’m satisfied that:
i)there is some prospect of her receiving a payment from her superannuation fund as a result of her total and permanent disability claim;
ii)I am unable to quantify her potential claim;
iii)the wife did not voluntarily disclose her outstanding claim.
Advance of funds by wife’s family
As previously referred to in these reasons, I consider it probable that the wife’s mother and/or sister has contributed funds to the wife during the relationship.
As a result of the wife’s failure to adduce evidence as to calculations, advances, characterisation of advances and utilisation of funds, I am unable to make definitive findings.
I do however, take into consideration that some funds have been advanced for the benefit of the wife.
Retention of Shipping Containers
As previously referred to in these reasons, I find that the wife has retained both shipping containers for her use and I take that into consideration.
Husband’s payment of ANZ credit card
Both parties agree that the wife continued to use the husband’s ANZ credit card post separation. She continued to use the credit card until June 2017, and to pay for her expenditure.
However, as at June 2017 she ceased using the card and ceased making payments, so that the outstanding balance was $6170. The husband then paid that amount to the bank.
I take into consideration that payment by the husband.
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
This is not a relevant consideration.
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
This is not a relevant consideration.
Conclusion as to contribution
Counsel for the husband in her final address, did not make any submissions about the percentage adjustment for contributions. Rather it was her submission that the asset pool should be divided 70% to the wife and 30% to the husband overall.
She submitted that;
i)the husband’s initial contribution should be considered as a springboard which enabled the parties to embark upon a series of property developments, and that the husband should be accorded an adjustment in his favour for that particular contribution;
ii)the wife should be accorded an adjustment in her favour for the contribution of Properties B1 and B2 properties.
Apart from the contributions referred to in the preceding paragraph, it was submitted that there was no evidence to persuade the court that the parties contributed, other than equally throughout the course of cohabitation.
It was acknowledged that both parties had earned income had contributed to the household, prior to the wife ceasing work in 2010. Thereafter, they adopted “traditional” roles, with the wife being a homemaker and caring for the child, and the husband was the primary income earner.
The wife in her final address, did not refer to a specific contribution adjustment in her favour.
Having considered the evidence referred to in these reasons, and in particular the discrepancy in initial financial contribution, and the wife’s contribution of Property B2, I determine that the wife’s percentage contribution should be assessed as 65% and the husband’s as 35%.
Conclusion as to future needs
Taking into consideration the above matters, including, but not limited to:
i)the wife’s current incapacity for employment;
ii)the wife’s principal care of the child;
iii)the disparity in income earning capacity of the parties;
iv)the wife’s potential total and permanent disability claim.
I am satisfied that there should be an adjustment in favour of the wife of 10% pursuant to s.75(2) factors.
Adjustment of interests
As a result of the findings made relating to contributions and future needs, I am satisfied it is just and equitable to make orders adjusting property between the parties, so that the wife is entitled to 75% of the non-superannuation asset pool and the husband should receive 25% of the non-superannuation asset pool. This results in an overall adjustment of the combined pools so that the wife will receive 71% and the husband 29%.
The husband proposed that the superannuation entitlements should be divided equally between them, but instead of a splitting order, I should order an additional cash payment to the wife. After considering the evidence, and bearing in mind the relatively young ages of both parties, I agree that the combined superannuation should be divided equally between the parties. This will result in a split of the husband’s superannuation in favour of the wife of $29,000.
On the basis of the property pool, the division of assets I have determined is summarised as follows:
| Husband’s Assets | |
| Property A | $515,000 |
| Husband’s car | $3,000 (husband’s valuation) |
| Subtotal non-superannuation assets | $518,000 |
| LIABILITIES | |
| Mortgage over Property A | -$270,000 |
| Credit card | -$6000 approx. |
| Payment to Wife | -$22,500 |
| Total non-superannuation assets | $219,500 |
| Superannuation | |
| Superannuation | $113,000 |
| Minus - Superannuation split to wife | -$29,000 |
| Superannuation Subtotal | $84,000 |
| Nett Assets | $303,500 |
| Wife’s Assets | |
| Property B1 | $600,000 |
| Property B2 | $330,000 |
| Motor Vehicle | $3000 (wife’s valuation) |
| Payment from husband | $22,500 |
| Liabilities | |
| Notional Mortgage over Property B1 | -$297,000 |
| Subtotal non-superannuation assets | $658,500 |
| Superannuation | |
| Wife’s superannuation | $55,000 |
| Plus – Superannuation split from husband | $29,000 |
| Superannuation subtotal | $84,000 |
Conclusion as to property
The division of assets referred to in the preceding paragraph will be achieved by the husband either borrowing sufficient funds to enable him to pay the wife and retain the Property A property, or alternatively a sale of the Property A property. In the event the Property A property is sold, the husband will receive a substantial cash payment. The husband would be able to rehouse himself, either by purchasing another property or renting.
The wife will retain the property situated at Property B1 and her interest in the property situated at Property B2. She will also be responsible for the liability to her mother including the amount of $297,000 required to discharge the …Finance mortgage, which previously encumbered Property B1.
Counsel for the husband in her final submissions sought that the wife pay to the husband the sum of $6390, which was referenced bought to moneys expended by the wife in the husband’s credit card. The husband’s outline of Case filed 6 April 2018 and the asset and liability statement prepared on his behalf, did not include that amount is liability.
I have however taken it into consideration pursuant to s75(2)(o) of the act.
I am satisfied the division of property is just and equitable and I intend to make orders accordingly.
Spousal Maintenance
The wife sought spousal maintenance of $250.00 per week for an unlimited period of time.
The wife’s income is set out in her Financial Statement sworn 27 January 2017 at $1,162.50 per week. That income included a disability support pension, family tax benefit and the rent from Property A of $515 per week. The wife has received as disability support pension since 2010. Prior to receipt of the disability support pension, the wife had been employed by Employer, where she sustained a workplace injury.
Her expenditure at part G of the financial statement includes payments of $275 per week for the Property A mortgage, and other expenses which may be referable to that property.
The wife has not filed an updated Financial Statement since January 2017, which makes it exceedingly difficult to ascertain her current income and expenditure position.
During cross-examination by counsel for the husband, it transpired that the wife has two sets of boarders at Property B2. One couple apparently boards inside the house and the other in the shipping container. The wife was evasive and non-specific about the income and financial assistance she receives from the boarders. She did not disclose her personal bank account during the whole of the proceedings.
Section 72 of the act sets out the requirements for an order for spousal maintenance. s.72 provides as follows:
Right of spouse to maintenance
(1) A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
(2) The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.
The first matter which must be answered in order to determine the rights of a party to spousal maintenance, in this case the wife, is whether or not she has a demonstrated that she is unable to support herself adequately by reason of one of the factors set out in s.72(1) of the Act.
It is the submission of the husband that the wife has not demonstrated that she is unable to support herself and that there is no reliable evidence which could be relied upon to enable such a finding.
In Brown & Brown (2007) FLC 93-316 at [161] the Full Court summarised the principles to be applied. These include the following:
(a)the idea that “adequate” means a subsistence level has been firmly rejected;
(b)where possible both spouses should continue to live after separation at the level which they previously enjoyed if this is reasonable, although the parties standard of living may have to be lower if financial resources are insufficient to maintain the standard;
(c)it is not necessary for an applicant for maintenance to use up all capital in order to satisfy the requirement that he/she is unable to support himself/herself adequately.
I agree with the submissions of counsel for the husband that it is incumbent upon the wife to adduce sufficient evidence to enable me to make a finding that she is unable to support herself. The wife has not done so.
Even if I am wrong and the wife is unable to support herself, the husband’s financial statement filed 9 March 2018 does not demonstrate that he has the capacity to contribute to her support.
That part B – Financial Summary, of his Financial Statement, the husband discloses average weekly income of $1192 and total personal expenditure of $1427.
The husband was not challenged about the income and expenditure in his Financial Statement. According to the evidence in his Financial Statement he does not have the capacity to pay spousal maintenance to the wife of $250 per week, or indeed in any amount at all.
Accordingly the wife’s application for periodic spousal maintenance will be dismissed.
I certify that the preceding two hundred and ninety seven (297) paragraphs are a true copy of the reasons for judgment of Judge Williams
Date: 21 December 2018
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