CHEE & FANG
[2021] FCCA 584
•30 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHEE & FANG | [2021] FCCA 584 |
| Catchwords: PROPERTY – Property dispute after 24 year relationship – husband seeking add-backs to reflect wife’s alleged expenditure on jewellery, handbags and other matters – contributions assessed as equal – 2 ½ per cent future needs adjustment in favour of wife appropriate given greater time with children – all superannuation amassed during relationship – equalisation of superannuation ordered. |
| Legislation: Family Law Act 1975 (Cth), ss.75(2), 90XT(1)(a), 106A |
| Cases cited: Chang & Su (2002) FLC 93-117 Goode v Goode [2006] FamCA 1346 Kennon & Kennon (1997) FLC 92-757 Stanford & Stanford (2012) 247 CLR 108 |
| Applicant: | MR CHEE |
| Respondent: | MS FANG |
| File Number: | DGC 100 of 2017 |
| Judgment of: | Judge Burchardt |
| Hearing dates: | 23 & 24 February 2021 |
| Date of Last Submission: | 24 February 2021 |
| Delivered at: | Dandenong |
| Delivered on: | 30 March 2021 |
REPRESENTATION
| Counsel for the Applicant: | Mr Scriva |
| Solicitors for the Applicant: | Borchard And Moore |
| Counsel for the Respondent: | Mr Gates |
| Solicitors for the Respondent: | Pentana Stanton Lawyers |
DRAFT ORDERS
Parenting Orders
All previous Parenting Orders be discharged.
The parents have equal shared parental responsibility for the care, welfare and development of the children of the marriage, namely X born in 2005 and Y born in 2008 ("the children").
The children live with the Mother.
The children spend time and communicate with the father as follows:
(a)From the conclusion of school or 3:00pm on Thursday to the commencement of school or 9:00am on Monday in week 1;
(b)From the conclusion of school or 3:00pm Thursday to the commencement of school or 9:00am Friday in week 2;
(i)term holidays by agreement;
(ii)In the long term holidays by agreement
(c)From the conclusion of school or 3:00pm to 7:00pm on the children's birthdays, and the father's birthday if the birthdays fall on a school day when not in the care of the father;
(d)From 10:00am to 2:00pm on the children's birthdays and the father's birthday if the birthdays fall on a non-school day when not in the care of the father;
(e)From the conclusion of school or 3:00pm on the Friday preceding Father's Day to the commencement of school or 9:00am on the Monday proceeding Father's Day;
(f)By telephone at all reasonable times;
(g)Such other and further times as agreed between the parties in writing, including time two times a week for 1 hour by Zoom to assist the children in their studies.
The children spend time and communicate with the Mother when not in the care of the Mother as follows:
(a)From the conclusion of school or 3:00pm on the Friday preceding Mother's Day to the commencement of school or 9:00am on the Monday proceeding Mother's Day;
(b)By telephone at all reasonable times;
(c)Such other and further times as agreed between the parties in writing.
Changeover take place at the children's school if possible and as agreed between the parties, failing agreement at McDonald's on B Street, Suburb C.
The parties be restrained by way of injunction from:
(a)corporal/physical punishment toward the children;
(b)being verbally abusive including yelling and name calling;
(c)denigrating the other party or their family to or in front of the children;
(d)discussing these proceedings or exposing the children to any documents in these proceedings.
The parties keep each other informed in writing by text or email of any serious medical, behavioural or educational issue of the children and authorise the other to attend upon any treating professional and/or institution of the children.
The parties authorise the children's learning institution to communicate with the other and receive all ordinary notices, newsletters, photographs etc.
The parties be at liberty to attend any extra-curricular activities of the children.
The parties ensure that the children attend all tutoring sessions and/or extracurricular activities.
Property Orders
Within 60 days of the date of this Order, the Husband pay to the Wife the sum of $343,200 (“the payment”).
Contemporaneously with the payment the Wife do all things necessary to transfer to the Husband all of her right, title and interest in the property situate at D Street, Suburb E in the State of Victoria ("the real property").
That in the event the whole of the payment has not been made by the due date then the real property be forthwith sold altogether out of Court ("the sale") and upon completion of the sale, the proceeds of sale be applied:
(a)firstly to pay all costs, commissions and expenses of the sale;
(b)secondly so much of the payment as it then outstanding together with interest thereon at the rate of 10 per centum per annum adjusted monthly from the due date to the Wife;
(c)thirdly the balance to the Husband.
That pending the payment or completion of the sale:
(a)the Husband have sole right to occupy the real property and that during such right of occupation the Husband pay all rates and taxes and like apportionable outgoings of the real 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 save for the Husband applying for finance over the real property to facilitate the payment.
Unless otherwise specified in these orders and save for the purpose of enforcing monies due under these orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders;
(b)monies standing to the credit of the parties in any joint bank account are to be split equally between the parties;
(c)each party hereby forgo any claim they may have to any superannuation benefits or other employment related benefits belonging to or earning by the other;
(d)insurance policies remain the sole property of the life assured named therein;
(e)each party be solely liable for and indemnify the other against any liability
(f)encumbering any item of property to which that party is entitled pursuant to these orders; any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
That in the event that the Husband or the Wife refuses or neglects to execute a deed and/or instrument in compliance with the provisions of paragraphs of this order, the Registrar of the Federal Circuit Court of Australia at Melbourne or Dandenong is hereby appointed pursuant to section 106A of the Family Law Act1975 to execute all deeds and/or instruments in the name of the Husband or the Wife and do all acts and things to give validity and operation to the deeds and/or instruments.
That in accordance with Section 90XT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable to the husband from his interest in the Super Fund F (“the Fund”), the Trustee shall pay to the wife an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $37,398 and there is to be a corresponding reduction in the entitlement that the husband would have had but for these Orders.
That having been accorded procedural fairness in relation to the making of this Order, this Order binds the Trustee of the Fund.
That this Order has effect from the operative time.
The operative time for this Order is four (4) business days after the date of service of a sealed copy of the Order upon the Trustee of the Fund.
Liberty to either party or the Trustee of the Super Fund F to apply to implement this Order.
That until the happening of any of:
(a)the transfer or “rolling over” into another superannuation fund of the payment split created by this Order; or
(b)the wife satisfies a condition of release and is paid the payment split which was created by this Order.
The husband be and is hereby restrained by himself, his servants or agents from executing a death benefit nomination in favour of any person or doing any other act or thing which would render any part of his interest in the Fund a “non splittable payment” within the meaning of Regulation 12 or 13 of the Family Law (Superannuation) Regulations 2001 and the Trustee of the Fund give effect to this Order.
The parties have liberty to apply in respect of implementation of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Chee & Fang is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC 100 of 2017
| MR CHEE |
Applicant
And
| MS FANG |
Respondent
REASONS FOR JUDGMENT
Introductory
This is a parenting and property dispute. So far as parenting is concerned the Court is required to determine how the best interests of X born in 2005 and Y born in 2008 should be met. The applicant father seeks that the children live with him on a week about basis and the respondent mother says there should be a nine/five regime as recommended by the family report writer. So far as property is concerned, the husband seeks a 50/50 split of the parties’ non-superannuation property and that each party retain their superannuation. His application is however complicated by significant arguments about proposed addbacks in relation to expenditures made by the wife. The wife’s countervailing position is that there should be up to 65/35 division of the parties’ property and the equalisation of superannuation, with no addbacks.
For the reasons that follow I propose to make the parenting orders sought by the wife. I will also make an order that there be a 52 ½ / 47 ½ split in favour of the wife in relation to non-superannuation property with an equalisation of superannuation.
Agreed or Uncontroversial Matters
The husband was born in 1957 (I will refer to the parties as husband and wife or father and mother as the context makes appropriate).
The wife was born in 1971. The husband, whose family had moved from the northern part of Country G to the southern part as a result of their opposition to the government, were unsurprisingly disadvantaged when the reunification of the country took place. The husband had a very difficult and troubled time of it before being able ultimately to escape as a boat person following which he relocated to Country H. He there undertook university studies. Following this he came to Australia in 1991 and was ultimately successful in obtaining a his degree from J University.
In 1992 the husband went to Country G where he met and thereafter shortly married the wife. Given the brevity of the relationship prior to marriage (both parties appear to suggest that their families had arranged it) and the significant disparity in their ages, the marriage has been described by professional witnesses as transactional and having regard to the materials in the file as a whole that conclusion seems inescapable.
Notwithstanding any utilitarian motivation however the marriage was by no means unproductive. The four sons Mr Z born in 1997, Mr W born in 1998, X born in 2005 and Y born in 2008 followed in due course.
The wife worked following her arrival in Australia following a period of training in a factory until around about 1996 when she became pregnant with the first child. She ceased work altogether upon the birth of the third child X. The husband worked in remunerative employment after he completed his degree and was earning a salary of $80,000 before setting up his own business.
The parties bought the former matrimonial home in 2000 and lived there together until final separation on 30 December 2016. The wife asserts that separation under one roof took place about a year earlier but I will return to that matter. On any view of the matter an argument between the parties erupted and the wife left the family home with W, X and Y, moving across the road to where her sister lived. Since July 2017 she has lived in rental property. The husband has continued to occupy the matrimonial home and Mr W has lived with him for some time. Mr Z lived with him until about November or December 2020 when he returned to live with his mother.
Both parties are in generally unexceptionable health save that the husband suffers from diabetes.
The Parties’ Affidavit Material
The parties have not been shy in filing affidavit material. Indeed it would not be incorrect to say that much of the material is self-serving (for example consisting of purported analysis of the reports of Dr O) and otherwise unhelpful. Much of it is repetitive. Much of it indeed is set out in the agreed or uncontroversial matters immediately above. I have of course read the parties affidavits carefully and have regard to all of them. I note that in his first affidavit filed on 28 March 2017 the husband detailed alleged family violence by the wife throughout the relationship and threats of suicide on her part. He also deposed to separation on 30 December 2016. The wife had returned home with the children W, X and Y from overseas and they had an argument about $80,000 previously extracted by the wife. He asserted that she hit him with a fly swat (and appended a photograph of the broken instrument) and alleged that the wife had bitten him on that occasion. Photographs purporting to prove the assaults were also annexed. The husband deposed to the wife returning to the family home notwithstanding an intervention order taken out by the police on 4 January 2017, and a subsequent amendment to the intervention order to exclude the wife completely.
The wife’s first affidavit filed 28 March 2017 unsurprisingly disputes the father’s version of events, points to the 11F report made on 30 March 2019 and the Department of Health and Human Services report dated 18 April 2017, to both of which I have regard.
The wife’s affidavit of 4 May 2018 particularly complains of the husband’s alleged parsimony during the relationship and his severe and harsh disposition in dealing with both her and the children. She noted the husband only paid $35 a month in child support.
Her affidavit also notes that she qualified as a tradesperson in 2005 and that she had ceased working after the birth of X in 2005. She deposed to the husband studying between 1996 to 1998 and the parties living off Centrelink benefits during that period. She deposed in 2005 the husband was earning $80,000. She noted that in 2013 the husband established his business L Group. She went on to detail at some length her assertions as to the amount of work undertaken by her in renovating and improving the matrimonial home. She noted that in 2016 she went to Country G for the first time in 10 years and that the husband had controlled their finances and that they had not had holidays. She accused the husband of having large amounts of undeclared cash through his business.
In his next affidavit filed 31 May 2018 the husband complained that the wife had removed all her belongings in the course of some 11 visits (something with which the wife took issue). He deposed that in December 2014 the wife removed $80,000 cash that he had stored in a safe and briefcase and that he did not know what had happened to it. Paragraph 23 of the affidavit he accused the wife of having obtained breast augmentation in Country G at a cost of $30,000, jewellery expenditure of $83,232 and handbags to the sum of $24,000. He also asserted the purchase of many plants for value and that the wife had sent money to Country G and undertaken no tax returns. He deposed that he had had an academic scholarship during his study years of some $18,000 - $20,000 per annum. He deposed to starting L Group in 2010 but said his income had decreased because of family issues. He deposed at paragraph 40 to a loan of $18,000 to the wife’s brother which had been repaid to her, the moneys having been advanced in 2016. His assertions that the wife was conducting a plants sale business was not in my view supported by the photographs that were annexed to his affidavit.
In her affidavit of 14 August 2019 the wife noted that she had indeed taken a briefcase with $80,000. She deposed that $30,000 had been spent on renovations, $20,000 on a holiday to Country G and Country M, $3,000 for breast augmentation in Country G, $3000 on a holiday to Queensland in 2015, $6,000 on braces for Mr Z and $2,000 - $3,000 repaying a debt owed by Mr Z to Centrelink.
At paragraph 22 the wife went on to deal with the question of jewellery. Put shortly (it will be appropriate to return to this when we deal with the evidence) she deposed to being involved in a scheme where she, but more particularly friends, would buy jewellery and that she would get the nominal credit for this thus building up credit points. She denied buying anything like as many handbags as alleged, denied Centrelink fraud and denied conducting a plant business.
The husband’s affidavit of 25 August 2019 is once again somewhat repetitive. I note however that at “-3” he annexes photographs that appear to me to be convincing to the effect of the wife biting him at the date of separation. In this affidavit he confirmed the loan to the wife’s relative of $18,000 took place on 6 July 2016.
The wife’s affidavit filed 3 April 2020 was largely repetitive. She repeated her assertions about her renovations and the assistance of her family. She noted the husband’s income of $18,926 in 2018 and $30,363 in 2019. She noted the minimal or no payment of child support, her rental expenses are $1543 per months and her earnings are $400 a week.
She complained of the matrimonial home declining in value because of the husband’s failure to maintain it properly.
The husband’s affidavit filed on 4 April 2020 appends a valuation of $620,000 on 23 March 2020. I note that the house is described as being of below average standard with dated functional fixtures and fittings and at page 51 of 76 of the affidavit, having poor maintenance.
On 25 April 2020 the husband filed a further affidavit deposing inter alia at paragraph 23 that he would obtain a loan through a broker to buy out the interest of the wife.
The wife’s affidavit of 4 February 2021 notes a third valuation of $650,000 (the first antecedent one having been for $700,000). At page 12 of 21 I note the poor condition of the property, as evidenced by photographs at page 18 of 21, and that there had been no maintenance for an extensive period.
The husband’s affidavit of 7 May 2021 notes that Mr Z moved back to his mother’s on 29 December 2020. He deposed to receiving cash deposits from friends in Country H and involved in the Country H Club and complained about Centrelink funds being paid to the wife. His financial statement filed contemporaneously however noted income of $671 a week and expenditure of $358 a week.
Almost immediately thereafter on 19 February 2021 the husband filed an amended financial statement which showed inter alia $54,618 in a bank account that he had not previously disclosed.
The Affidavits of Ms N
Ms N has sworn a number of affidavits appending reports which detail her treatment of the husband starting on 21 July 2017. I note in the first affidavit filed 8 January 2018 the father had asserted to her that he was the primary carer but noted that he had yelled at the children. The affidavit reveals a measure of partiality in that Ms N thought it was unfair that one parent should be held solely responsible for the difficulties that then obtained. The report also notes, understandably in my view, the extent to which the parties’ cultural background and in particular that of the husband might operate upon their behaviour.
Ms N’s affidavit of 3 September 2019 appends her report from 7 November 2017. Her further affidavit of 17 January 2021 notes that Mr Z had left the father’s home to the move in late 2020 as a result of his violent behaviour. At paragraph 8 it was noted that Mr Z had been fraudulent with his father about his education expenses and at paragraph 7, that the father has shouted at the children in 2018. I note the report continues to be somewhat partisan in as much as Ms N just says that the Department of Health and Human Service were unfair in their assessment of the father. At paragraph 23 she noted the father’s increased insight into the effects of his previous behaviour and at paragraph 46 noted that the father’s prognosis and at paragraph 49 that he had changed as a parent. The reports it should be said in fairness to the father, all suggest that he engaged well with Ms N and made real serious and real gains in regulating his behaviour and responses both to the behaviour of the children and that of the mother.
The Reports of Dr O
Dr O has filed no fewer than four reports. All of them note the unimproved nature of the interrelationship between the parents and its likely non-improvement in the future. All note the completely disparate styles of the parents. The second report on 23 February 2018 noted at paragraph 12 that the father had become more child-focused but repeated that co-parenting could never improve. Dr O had recommended increased time for the father with a nine/five arrangement. The third report dated 13 March 2019 noted that the father was positive but became agitated at times. The report noted at paragraph 21 the different parenting styles of the parents Dr O again recommended a nine/five spent time arrangement.
In his final report dated 8 February 2021 which was tendered as exhibit J1 Dr O noted that the father seemed somewhat resigned. X told Dr O that the father had cooled down. Y told Dr O that the father no longer goes bananas but gets louder when he is upset. Dr O noted the children’s views. X was in favour of keeping arrangements as they were and Y remained of the view that he and his brother should have week about.
Dr O was of the view that neither boy had thought particularly deeply about the question of their ongoing arrangements. Dr O referred again to the completely different approaches in the two households. Dr O noted at paragraph 16 that to his credit the father had addressed the concerns as to his disciplinary style and was reported to be far more tolerant, calm and reasonable within the home. Notwithstanding these matters however Dr O continued to recommend a nine/five arrangement. He noted that the father had become less preoccupied with academic excellence and was somewhat more relaxed with the boys and that the mother had become more aware of the educational needs of the children. Relevantly Dr O opined:
…and therefore I am of the view that their time with their father should increase form the current 10/4, and I believe that there are now reduced barriers to moving to an equal share care arrangement. The risk for the court in implementing this would be that the boys are now entirely settled into their routine during school terms, and equal, shared care would be contrary to X’s stated wishes. The balance will be to weigh whether the risk of destabilising a currently successful parenting arrangement is outweighed by the potential for a more optimised solution to these boys by living equally with the mother and their father.
The Submissions Made and the Evidence given at Court
What follows is taken from my notes.
Counsel for the father opened his case by reference to the case outline filed. He noted that Ms N was not required but her affidavits were formally read. The father seeks equal shared parental responsibility and that X and Y live on about a week about arrangement. So far as property is concerned he concedes fifty-fifty. He does not formally seek a superannuation split but it would be hard to resist an equalisation. He seeks the addbacks of jewellery and cash. The valuation for the family home of $650,000 was not disputed. It was noted that the children are now 15 and 12 and that Dr O had provided an update. The relationship was from 1992 till separation in late 2015 or 2016. Counsel sought to lead further evidence as to the omission of the bank account being $54,000.
The husband was sworn and adapted his affidavits as true and correct. When asked to explain the $54,618 in his Westpac account he said he was always saving from the beginning. This was in case he was sick. It was mostly the COVID relief package and JobKeeper. It constituted his savings over many years. At separation in 2016 he had saved about $20,000. He always saved $20,000 which was the minimum he required. He seeks equal shared parental responsibility and shared care on a week about basis with a fifty-fifty division of assets. The wife had not contributed to superannuation.
Cross-examination commenced with a detailed examination of the husband’s early years in Country G. Regrettably, albeit unintentionally, counsel put a number of matters to the husband that were self-evidently very distressing to him. This included that his parents moved to the south of Country G in 1955, his subsequent treatment following reunification as being like a criminal. He escaped by boat in 1980 and went to Country H. He passed his university degree in Country G. He was in a labour camp for one and a half years. His mother had paid big money for him to leave. He started studies in Country H in 1982 and finished his degree and then a masters’ degree. He went to Australia at the beginning of 1991 and married the wife in Country G in 1992. He sponsored her to come to Australia in 1993. He completed his studies in Australia in 1995.
When cross-examined about family violence he said that there had been family violence for years by the wife. It did not happen every day. He had commenced counselling with Ms N in 2017 which was Court-ordered. He last saw her one week ago. When asked what was the purpose of seeing her for all these years the husband said it was initially a Court order. The wife accused him of family violence. He said now when he has an issue he needs someone to talk to. He was told to do anger management. He did not do it so the Court said he should see a psychologist. He thought the letter from the Department of Human Services was unjust as they sided with the mother. Her allegations were false. He discusses everything with Ms N. Every time he sees her he tells her what has happened.
It was put to him that X had recently smashed Y’s screen and broken it. The father said that Y’s screen had been broken and that X did it. They are brothers and it was normal. X is nearly an adult. He is acting as though he is Y’s boss. When it was put that the mother says that there is no such behaviour in her home he appeared to deny this. Sometimes the children are angry and throw things. He rejected any suggestion that the children were violent with him and calm with her. He had obtained an intervention order at separation. The police charged her. She hit him on the head. She moved out that day and took the kids. He obtained an IVO variation to keep her from the home. She would come back into the house. He would run out because he was scared she would cut herself and blame him. He went to the police.
I should interpolate to say that a number of these answers were self-serving and non-responsive to the questions put.
Mr Z and Mr W were living with him and she took the younger children. She moved to her sister’s across the road and then later to a sister in Suburb P. She moved out. It was her decision. When asked why he had not let her move back in the husband’s answer was, if I understood it correctly, that he had a lot of expenses. His answer, given that the children were with the mother, was unconvincing. He said he had paid child support but his income had changed a lot. He was unable to explain why he was only paying $8.10 per week. Before COVID he earned about $20,000 - $30,000 a year. When it was put to him that he could earn in excess of $100,000 he appeared to answer affirmatively to commence with. It was put to him that he should close his business when it was not going well. He said his mind was focused on family. She took all the money and buys diamonds. He has had the business for 10 years and cannot go back. When the Court case is finished he will reconsider. His last job was $65,000. It was hard to say if he can get a job.
Mr Z moved out in December 2020. He suspects that Mr Z is not saying nice things about him. Mr Z lied to him, saying he had been to school but not in fact done so. He was angry but he stills loves him. His expectations are not beyond Mr Z’s abilities. In December 2020 Mr Z asked him for money and threatened him. In the last instance he wanted $1000 to buy a new iPhone but the father said he did not have the money. Mr Z pushed him and was very aggressive so he asked him to leave.
It was important to have an education. He knows what level the children need. Allegations that he abuses the children are a lie. She brainwashes the kids with that idea. Mr Z repeats what she told him.
When asked what academic expectations he had for the younger children the father said that the younger is only 12 years old. Mr W is very quick but cannot remember and X is similar to him. He is 100 per cent sure he can better assist the children with their studies.
Despite his denials it is clear from the husband’s answer that he is very strongly focused, to say the least, with academic success for his children.
When it was put to him that the mother proposed that he assist the two younger children with housework via Zoom for one hour a week he said he had never heard of this. When it was put that this could take place between 7 and 8 pm each night the father prevaricated and failed to answer. He said it depended upon the homework they had. 7 till 8 was not suitable for them. It was more important to be face-to-face with him. He would support any such time.
He had read Dr O’s reports. He had never physically disciplined the children. Every parent loses their temper with children. Normally he just forgets it. Maybe he yells once a year but it depends upon the mistakes. Sometimes these are serious and have to stopped. They have always wanted equal time. When it was put that Y had said he wanted to be fair the husband said the four reports were different. The third and fourth reports were move relevant. The kids want to stay with him. They have an emotional connection. When it was put to him that he gets louder he said that this was based upon the first report.
The husband was challenged as to why he can only make $350 a week as a tradesman. He said it was hard to tell especially with COVID. Pre-COVID X and Mr W dropped out of school. After this Court case his company will build up again. He does work for the construction industry. He does whatever job is available but it is mainly domestic building. Most clients are people doing their own building and he gets offered work through the architects. There are no cash in hand payments.
When asked why he had had $80,000 in a suitcase the husband said he started saving in 2006 to 2007. He was always paying school fees and music lessons and paid for a tutor and other benefits for X and Y. He always has money ready to pay every day. It is his instinct to have money ready. If it was in the bank she would take it. The company came later on. She took this money in 2014 to 2015. They always have a joint bank account. He did not know how much she got from Centrelink. When asked why he had not put the money in a bank account he said this was his mistake. He said he had always needed cash for an emergency up till now. When it was put that he still has undisclosed cash resources he denied this. She took $80,000 and that was it. When asked how he obtained loan approval for $190,000 to pay the wife out he really gave no answer. He said he had not made any application. They just asked him for his passport. They looked at his future. He will do his best to keep the house for the kids. She is working and has Centrelink. When asked why the $80,000 has not been paid to the mortgage he said by 2014 the mortgage was already paid off. When asked why he had taken so long to produce his bank accounts during the discovery process he said he sent a lot in 2014. He said he had a business account and a savings account. He said, in a series of answers which I would again describe as prevaricating and unbelievable, that he had given his credit statements. She had put her joint account in her affidavit. The $54,000 was in his business account. At the moment the joint bank account has $200.
When asked in summary how it had taken him so long to disclose the $54,000 he said he had initially sent the documents only for the financial year. He then updated. He thought it was financial year to financial year. It was put to him that his 1 February 2021 financial statement described his bank resources as negligible but it emerged it was $54,000. No believable answer emerged. He said he had sent every tax return and the documents were with the accountant. When asked about invoices and receipts he said these were normally sent to the architects but were not relevant. It was clear that he had failed to disclose.
When the first child was born in 1997 he had just finished his qualifications. He contributed most and it was put that the wife kept the home and looked at the children. He said that if she had taken care of the kids we would not be divorced. He pays the mortgage, electricity and gas. She worked full time. She went out to buy diamonds in 2012. She did not look after the kids. Her priority is money not the children.
I interpolate yet again and say that at this point in his evidence the husband’s demeanour was vituperative and angry.
It was put that the house was rundown when it was bought but he said “no”. He is a tradesman. The house did not need improvement. It was built in 1980.
It was put that by 2014 it was rundown. He was still working. She has thousands of plants and he paid for the water. She sold the plants. She got up to $2000 from one plant. It was put that the wife painted the house. He said that they moved in in 2010. She did one painting and he bought the paint. She gave money to her parents and her breast enlargement surgery was 2007. He complained of the wife obtaining statutory benefits. He said he thought that she gave the $80,000 to her parents. It was not true she spent any money on home renovations. The handbags and jewellery are something else. She used handbags and clothing and make-up every day. Every day she spent three hours on make-up.
The husband said that at the moment the Court takes all of his time. When asked how he had paid for Dr O’s reports he said this was Court-ordered and he had borrowed. Some money he had saved and some he borrowed. The last report was $4,000. It was put that he had had sole use of the property for four years and let it run down. He said he had not destroyed anything. He did the basic things. There is more to think about with the Court case and the children. He has not deliberately failed to maintain the property.
When asked how he would buy the wife out of the property he said he has family overseas and friends. They are good friends. There is one friend in Country H to whom he lent money in the past who is now successful. He rings him regularly. He speaks to his sister, his brother, everybody. There is a very positive response. They have offered to lend him money. When asked how much they had offered the father prevaricated and said that it depended on what the Court ordered him to pay.
In re-examination the husband dealt with the question of Mr Z leaving in December 2020. Mr Z had a broken phone and asked him for help. The father was prepared to repair it but Mr Z was not happy. A few days later he wanted an iPhone 12 which the father told him was too expensive at $1,860. Mr Z said the mother would pay and swore at him. He demanded $1,800. The father said he had no money. Mr Z said he would sell his car but the father said no. The argument clearly continued and it was clear that the father was yelling.
The Opening and Evidence of the Wife
Counsel indicated in opening that the wife accepts that the children spend an extra night with the father but resists any move to equal time. So far as property is concerned the wife has already received $10,000. Her contributions and needs post-separation should lead to an adjustment in her favour. The wife should get above 60 per cent. The wife had worked full time and had also been the primary carer and main homemaker. All of this was with minimal assistance from the husband. The husband has had sole use and occupation of the property since separation and is not working to capacity. He could earn over $80,000 but decided to run his own business in which he earns only $350 a week. The wife has paid all school costs and the like since separation. The husband will revert to his former style of parenting and this has produced poor results for Mr Z already.
The wife was called and adopted her affidavits as true and correct. Child support is now zero. She had withdrawn $3000 from her superannuation to pay a credit card which was linked also to her savings account. Mr Z moved to her house in November 2020. The relationship between herself, the brothers and Mr Z was very nice.
Cross-examination commenced with an examination of the wife’s bank accounts. There is an account ending … and a Mastercard Gold credit card which are the only two accounts that the mother said she operated. She conceded that the four family reports had cost between $4000 and $6000 each. She said the father wanted this but she did not want these reports.
I should interpolate yet again that almost from the commencement it was apparent that the wife was not answering questions directly.
The wife confirmed that she is 50 years old and the husband will be 64 in November. It was put that L Group was started in 2010 but she remembered 2012. His income had not dropped. He made a lot of money. It is his business and she did not know how much he earned. She saw many clients come in. He worked from 9 am till 6 pm. She was a full-time mum, did not have a full-time job. She stopped working after the children were born and now has a part-time job. Mr Z and Mr W lived with the husband after separation but Mr Z came to her in November 2020. He went to his girlfriend initially.
The wife is a tradesperson. She has a lease for the premises of course. The husband’s lawyers had asked for a copy of the lease but she is just a worker and it is not her own business. She denied being employed by a friend. Previously she worked for 15 hours per week but is now working 20 hours per week because the children are with her. She gets $408 for 20 hours work but does not work from home. She had a table in the home in order to learn how to do her trade but this was 2005. Her friends would come in so she could practice.
The wife confirmed that the husband was always tight with money. She could not buy anything for herself. When asked her about her jewellery payout she said it was jewellery from when she got married and the insurance paid her $6,000. The wife confirmed that the husband’s lawyers have sought her bank account since 2017 and she updates every Court date. She got an update yesterday. She confirmed that an account … is another account which is the children’s young saving account. She confirms that she gets Newstart now because she works less hours and gets a minimum of 15 hours. She obtains part A and B child support for the children. This continued till JobSeeker which is $326 per fortnight. Another account ending in … is a linked account for buying on the internet. She would not have sent this account to her solicitors. When asked how many accounts she had there was really no answer.
I interpolate yet again that the wife was giving non-responsive and self-serving answers in relation to these bank account matters.
An account … was X’s account. An account … was one she needed to open for herself. … is in X’s name. X is working which is why he opened his account. When questioned about an account transfer of $1,600 from account … the wife said this was a transfer to pay for her rental. The $5200 was the remains of the $10,000 the husband gave her last year. She transferred $9000 of that to …. When asked why she had not told the husband about her account she said they were just linked accounts and money was in and out. This was not a serious account. It was just transfers in and out. Account … was a credit card account. That credit card is now … because there is lower interest. It was put that … was a different account but this was the for the Mastercard. She owed $8,000 to the credit card but withdrew $3,000 from the superannuation so it is now debited $5,000. The two children are in high school.
It was put to the wife that she could obtain full-time work but she said she needed time to look after the children. She just works 20 hours. She also has to do school drop offs and look for work and do other things. She lives in Suburb Q and the children go to school in Suburb E which is about three or four kilometres. If they were to go on the bus she would have to pay for the bus. She is only hired for 20 hours per week. She will need to work full time as the husband is not paying anything. When it was put to her that she has to seek full-time work to obtain JobSeeker she said this was dependent upon the age of the children but appeared to indicate that she needed to look for full-time work.
The cross-examination turned to $63,000 spent at R Jewellers between 2008 and 2014. The wife said she did not have money to pay for that jewellery. This was a VIP account at R Jewellers. She got points when she made purchases so friends put the jewellery through her account. A few transactions were for the husband’s cousins. When you redeem points they require receipts. Her English is better than theirs.
It was put that she received cash money from the businesses but she had had no business. When asked about diamonds she said, “Diamonds. Show me diamonds.” She inferred that the husband has such jewels.
The wife said she did not buy expensive handbags. $20-$100 is not expensive. She is allowed to buy for herself. On sale they were less than $100. She was cross-examined about her affidavit in which she had said handbags cost $59 to $200 and she conceded that some were up to $200 being some seven to eight in total.
I interpolate, because this is the only way to deal with the matter, that it is clear the wife bought an awful lot of handbags for rather more money than she conceded.
She was challenged with the date of separation as December 2015. She agreed that $18,000 was loaned by the husband to her brother in June 2016. When she took the $80,000 out of the briefcase she took $18,000 and got a bank cheque and loaned it to her brother. When was put that this was not in her earlier affidavits she said that if it is not from the $80,000 where would she get the money to loan $18,000. The husband took a photocopy of the bank cheque.
This version of events was clearly made up on the run not being in earlier affidavits and was clearly untrue.
The wife confirmed that her brother repaid her $12,000 in two lots $6,000. She then got $6,000 after the divorce. As she had no money she had kept it. The wife said the $18,000 was not borrowed after separation but started a few months before. The lending agreement was done by the husband. It was put that the $18,000 had all been repaid to her and the wife responded that if it was all spent for the family why would she give it back. The husband had told her it for his funeral but the family needed it.
It was put that when she found the $80,000 there was a safe as well as a briefcase. She said there was a small briefcase chained to a desk in his office. She had taken the money from a briefcase in his office and had broken the locks to do so. She kept that money for nearly a year. The condition of the house was so bad she used it for the children in the home. It was correct she and the children to Country G in 2016 at cost of $20,000. She also took the children to the Region S. Her breast surgery was in 2007 before the fourth child not in Country G. It was put she had no receipts for the for $30,000 renovations asserted but she said that they were all in a cupboard in the bedroom and were in the possession of the husband.
It was put that she had retained the $80,000 for her future use. She said she had said everything truthfully. He has changed the locks and thrown out all her belongings. It was put she had told the first family report that the husband had never been physically violent and the wife confirmed that this was the truth.
It was put that she had bitten the husband at separation and she said she had bitten him because he was taking her phone off her on which she was trying to call for help. This was on 30 December 2016 after she came back from Country G. She moved out after that date.
The wife was cross-examined as to whether she had disclosed her bank accounts to Centrelink. She had declared account … but not the others.
She was cross-examined about her work prospects. At the time of an earlier affidavit she was working part time because the children were at primary school. She does not know yet if she will work full time. She informs her work about her Centrelink payments and continues to receive JobSeeker. The wife’s bank accounts were tendered as a bundle as exhibit A1. The wife said the husband was always secretive about his finances. She denied he had $30,000 at the start of the relationship. At the time of the marriage he had no money in the bank and was unemployed. She was the main person working and worked in a factory.
Counsel returned to the separation in 2016. It was put that she had bitten the husband and broke a fly swatter by hitting him on the head. She denied hitting him. They were struggling with the phone. It was put that the police had served an intervention order and she had left on that date but the wife said on that day in order to protect both parties the police asked if she agreed to move out and she agreed. The intervention order did not stop her coming to the house.
It was put that she had taken some of her property. The wife said she came with the two elder children and took clothes for the two younger children. She did not come again because he had changed all the locks. She called the person who changed the locks but then he changed the locks again. There was no alteration of the intervention order to stop her going to the house and she denied all domestic violence allegations. Her son had not taken clothes. The husband put her clothes in rubbish bags and her son gave them to her.
When asked if she respected the husband as a father to the two boys the mother said of course. It was put that he loved his sons very dearly and the wife said he loves his children but he is not the only one. She does as well. His manner of educating the children is different to that of other people. She had seen the reports of Dr N and noted the improved behaviour by the father to the children. She was asked if she accepted what Dr O said about the father better controlling his temper. She said that at the moment he was calm. He had calmed down in order to settle everything. She did not know about the future. It was put that the husband had calmed down over the four years since separation and the wife said that is what he had told Dr O and the psychologist but according to the children his attitude was totally different. It was put that diary entries showed that he was doing positive things with the children but the wife said those activities were done according to his wishes. He never allowed the children to do what they like. In respect of sports lessons she paid the fees but he did not want her son to go. He takes him fishing because that is what he likes.
It should be noted that the wife was negative at all points about the father.
When asked about 10 days of the long summer holidays which had not been properly allocated the wife said she did not understand the question. When it was put that the 10 days should have been divided equally the wife said all she knew was that they had the children on alternate weeks. The last time the children stayed with her they stayed still the start of school. Text messages threatening not to send the children were because the children had not returned the children on time. She had not refused the password on X’s school portal. The school had said that they would organise it for the husband. She told him if he wanted the password he should go to the school. The school had told her she was not allowed to share a password to anyone else. She conceded sending a text on 29 September 2018 asking why the husband needed to know. He always says that the children should study but he does not give them any money or support them in any way. He has not spent one cent on school uniforms. He has assisted her with the household expenses. The wife confirmed that she wanted a nine/five arrangement because that was what was in Dr O’s most recent report.
There was no re-examination.
The Evidence of Dr O
Dr O was called and adopted his reports. He was first cross-examined by counsel for the husband. He confirmed that the total cost of the four reports was about $22,000. The first report was $7000 and the addendums were about five to six thousand dollars each. When he first saw the father four years ago the father was more agitated. He felt things were unfair. He was very heavily involved with his children’s education. He is now more accepting that they may not do as well as he did academically. He is now more resigned. He accepted that the boys will live with both parents.
Dr O confirmed that the mother seeks nine/five and the father seeks seven/seven. Mr Z has moved out of the father’s house. It was put that X at the age of 15 was not particularly mature. Dr O said the two younger boys are over it. There is a level of exhaustion. They accept that they need time with both parents. Both are a bit emotionally undeveloped for their age but they do not want to rock the boat. They were not keen to impress their views on Dr O. They will be compliant with what the Court orders. They would be fine with fifty-fifty but it might be difficult during the school weeks. A couple of occasions of time with the father for the homework would help. The mother has said the boys need their dad which is an improvement.
Under cross-examination by counsel for the mother it was put that the mother is paying for tutors and that there would be benefit of remote assistance with their father. Dr O said the children would benefit from the father being with them directly. Y had said the degree of the father’s responses had reduced. Things have settled to a significant degree. Kids under 14 prioritise fairness in any event. The boys do not present as programmed. The parenting skills are very different but have progressed towards the mean. The father is a very intelligent and with good academic achievement but there is now less emphasis on this. The mother is now more attuned to the children’s needs.
Final Submissions by Counsel for the Wife
Counsel submitted that the parents have very different attitudes to life. The father left as a refugee which had a lasting impact on his attitudes towards parenting and finances. His parenting is disciplinarian and punitive. This was true of cultural traditions in Country G but not so much in Australia. The father retains an inability to acclimatise to the Australian perspective. He is still very cautious with money and wants money in the house not in the bank. This arises from a sense of insecurity. The wife is completely different. She is younger and is from the south and was not persecuted. She married the husband to have a family and affluence. She thought the husband had this as he was well-educated. She found him very austere and his priority was saving for the house and not allowing expenditure on handbags and the like. This led to enormous conflict. The wife found the briefcase full of money and decided to spend it. They went on a holiday to Country G for $20,000 where the children had never been. It was the family’s first holiday. They also had a vacation to Queensland.
The father wanted to pay out the house and then not work as much. His $8 a week child support was based on an income of $18,000 per annum. There is no social security in Country G. Most of the wife’s income comes from welfare benefits. The parents have different attitudes to parenting. The wife is child-indulgent but the father tends to put inordinate pressure on the children because of his own fears. His projection of his fears on to the children is not reasonable. He pushes the children beyond their comfort zone. There was a punitive aspect to his behaviour earlier on and he loses his temper. Dr O says he is better. Ms N says that he is better but the father’s demeanour while giving evidence was different. The father said the last visit was not about the children. The visit to Ms N was not about the children. The father said it was Court-ordered. His conduct in the witness box shows that Ms N’s assessment is optimistic.
So far as parenting is concerned the mother’s primary care is a refuge for the children. The children want to be fair. Y says the father no longer goes bananas but raises his voice. The children should be protected by the mother’s primary care. The parents will not agree to anything. Shared parental responsibility cannot work. There are now no long-term decisions to be made. There are no medical issues and school has been determined. Moving between the households with such different atmosphere is not appropriate. The children need a primary base with their mother despite her indulgent approach.
The father says the mother cannot assist with schooling but the father’s assistance is conditional on additional time. He will not undertake remote learning. The father choses to live on $380 a week. This affects the children. He should have got a job. He has not met his parental responsibilities and not worked to capacity. You could get even a menial job at $500 a week.
So far as property is concerned the wife made the greater contributions. The husband has reduced his income towards the end of the relationship. The wife supported the husband early on and worked in a factory. Post-separation the husband could have allowed the wife to live in the matrimonial home but he changed the locks and said he is running his business from his home. $10,000 had been released to the wife to compensate her payments of rent while the husband was in the home and was ordered to be characterised at trial. It should be characterised as maintenance. The wife has extra time to work given her age but the husband is a tradesman who could work indefinitely. He will receive a pension of about $300 a week soon in any event. The wife will work full time when she can but her income will drop because she will lose social security.
The husband wants to buy the wife out and says he is likely to be able to do this. He was very vague about his sources of money. He was asked to produce a mortgage loan application but failed to do so. It was submitted that the husband has financial resources which have not been disclosed and that his disclosure was incomplete. His suggestion that he only disclosed documents for the financial year was not believable and he had only finally disclosed the $54,000. He said $20,000 was COVID payments and that there $22,000 to $23,000 in the account at separation. This should be included in the pool. He has been able to save. Counsel surmised that the husband received cash in hand earnings. He has kept cash somewhere over the years and it was submitted that he would use these undisclosed funds to buy out the wife. Counsel referred to the authority at Chang & Su (2002) FLC 93-117 in respect of non-disclosure. The husband has lived in the home for four years. All three valuation reports referred to the state of the premises. It was acceptable at the start but now poor.
The children are not young but they will need financial support until they are 18. The husband will not pay any child support. It was submitted that an assessment of 60 to 65 per cent in favour of the wife was appropriate in the light of the wife’s greater contributions both in working and as a child rearer. The husband was not working to capacity. The first property report made no mention of disrepair and the second said it was below average. The third said there was no maintenance and it was below standard.
Counsel referred to the Mastercard debt in the wife’s financial statement of $7,995 but I would observe in passing there is nothing to suggest that this was what it was at separation.
Final Submissions of Counsel for the Husband
Counsel submitted that the expert report about valuation was not challenged and that the total of $650,000 should be accepted. There was no admissible evidence that this value would increase if the condition issues were rectified. So far as property was concerned the undisputed facts included the age of the parties. The husband will be 65 next year and cannot get a job. How long would he be working with any employer? He has no working life ahead of him unlike the wife. The husband was austere with finances. His frugal behaviour came from his refugee background. He had come to Australia but his mentality had never left him. The parties were together for almost 30 years and the husband saved from 2006 onwards. He started his own business in 2010 and his income dropped and the wife knew this. They did not have holidays but they had paid off the mortgage. The wife had found and spent the $80,000 that she found. The husband’s case was he could not control her expenditure. He did not accept her explanations as to what she had done with it. She says there were $30,000 renovations but there are no receipts. The $20,000 spent on Country G and Country M were after her assertion as to separation. The $18,000 was loaned to her brother but repaid to her. The husband thinks she still has it. The breast augmentation was not in Country G but in 2007.
Since separation there has been no change in L Group. The husband saved $23,000 at separation and a further $20,000 during the COVID period which together with another $12,000 led to the $54,000 in the bank account. The husband had said that the wife would take it from any bank account. The husband had not wanted money spent on handbags or jewellery. The husband said he had not focused on work because of the Court case. Separation took place in 2016 on the husband’s version or 2015 on that of the wife. The husband had to get past supervision and family reports to get to where he is now. Counsel submitted (a submission I confess I found slightly surprising) that late disclosure was not non-disclosure. The wife had not disclosed either. Her bank accounts had only been produced in January. From exhibit A1 it was clear she had lots of other linked accounts. The inference that there was material non-disclosure was irresistible. The wife had extra undisclosed resources.
Since separation the mother has had $18,000 back from her brother which she has kept. She had $10,000 paid by Court order which should be characterised as part property settlement. There was $20,000 in the L Group account at separation and the wife got $10,000. The family reports cost $22,000 and these were of assistance to the Court. The reports show the father’s progress. The wife also access $3,000 from superannuation.
Section 60CC(3)(l)
It is plainly desirable that final orders be made and all parties seek them.
Section 60CC(3)(m)
The only matter to be borne in mind here is the ongoing and very poor interrelationship between the parents. It is to be hoped that the cessation of these proceedings will over time enable the parties to move forward in at least a slightly more cooperative way in relation to parenting issues. Although it is perhaps a forlorn observation, the finishing line is in any event now only five years away when Y turns 18.
Conclusion on Parenting Issues
Bearing in mind all the relevant considerations it is clear that the nine/five arrangement that Dr O has been advocating for quite some time is the preferable one. The mother should be credited for her move to accept that recommendation. The issue of study while the children are with the mother should be addressed as the mother says.
Property Issues Stanford & Stanford (2012) 247 CLR 108 (“Stanford”)
Pursuant to the decision of the High Court in Stanford the Court’s first task is to identify the legal and equitable interests of the parties and determine whether a property adjustment is just and equitable. In this case however as in so very many cases, and as the High Court foreshadowed in Stanford, the basis upon which the parties conducted their finances as a couple has completely changed and each party seeks that there be a property adjustment. It is plainly just and equitable that there should be.
The Pool
The pool that is the subject of agreement consists of (a) the former matrimonial home at D Street, Suburb E value $650,000; (b) superannuation wife $1500, husband $75,796.
The real argument is about the addbacks that the husband seeks. It should be noted that I have not included the parties’ cars in the pool. The husband values the wife’s Motor Vehicle 1 at $1000 and his Motor Vehicle 2 at $2,000. The wife’s valuation of the Motor Vehicle 1 is relatively minimal but the Motor Vehicle 2 is somewhat more highly valued by her. There is no sworn valuation or independent evidence as to the value of these vehicles and in truth if they are sold each will simply have to buy another. In my view in the circumstances to allot these a notional value is nothing short of ridiculous. I do not propose to include them in the pool.
Contribution Issues
In a broad general sense given the length of the relationship one would have been inclined to regard the contributions of the parties as approximately equal. The wife worked from time to time particularly in the early years when the husband was studying, albeit that it seems he may have had some form of scholarship. The wife was the primary caregiver to the four children and as I find looked after the home. I have heard and seen the parties give their evidence and I believe the wife in this regard.
Where the parties are really at odds is as to their contribution in the sense of moneys extracted. It is common cause that the wife obtained the $80,000 in cash. The husband wishes that to be added back in full but I completely disagree. The wife as her counsel submitted had had enough and simply started spending. The moneys were spent on renovations (I accept the wife’s position that she spent this money albeit that there are no receipts). Her evidence was in my view convincing. She also spent moneys on holidays overseas and on other matters and albeit that the sums particularly itemised do not amount to $80,000 I have no doubt that the moneys which were extracted relatively early in the piece (2014) were properly applied to the wellbeing of the family prior to separation.
I also accept that the wife does not have in her possession jewellery and handbags worth $110,000. While the wife’s evidence about the purchasing of jewellery was somewhat unconvincing I do accept that she had some sort of arrangement whereby she could inveigle friends to purchase jewellery under her name as it were and that she herself derived benefit from this. There is no sworn evidence before me self-evidently as to how much jewellery she possesses nor what it is worth. I have no doubt she spent more on handbags than she admits but once again there is nothing to suggest that these have any kind of second-hand or resale value. I am not prepared to include them in the pool.
Moneys I do accept should be included in the pool are the loans to the wife’s brother which were repaid to the wife alone. These were not taken out of the $80,000 but constituted by separate moneys taken from savings of the parties. If you add up the various sums that the wife admits she spent out of the $80,000 there would not be $18,000 left and in any event the loan took place a good two years after the $80,000 was obtained. I found the husband’s evidence about this aspect of the matter convincing and prefer it to that of the wife.
The husband’s evidence about the plant business that he alleges was in my view risible. I completely fail to accept his assertions in this regard. The wife did not run a plant business, albeit that she was a keen gardener, and that plainly will not be included.
The $10,000 paid by the husband to the wife pursuant to Court orders made on 8 May 2020 is in my view properly characterised as maintenance. The husband has lived rent-free in the matrimonial home since December 2016 and the wife has had to pay rental. Plainly, it is inappropriate to regard this as a capital advance to her. It has plainly been spent on ordinary living expenses.
The next consideration of course is the husband’s $54,000 in the bank. He said he had $20,000 separation and it is plain in my view that that should be added back into the pool.
It is worth at this point commenting upon the question of disclosure. The wife’s endeavours to explain her all too numerous bank accounts were completely unconvincing. Nonetheless I found the evidence about these accounts in effect impossible to follow. All I can say is that her disclosure has been deliberately incomplete. She probably has other assets that I am not fully aware of.
The same can be said, in spades, of the husband. His explanation for his failure to disclose his $54,000 in his bank account was risible and utterly unconvincing. He was concealing the fact that he had this very substantial amount of money in the bank until the last possible moment when he realised that it was going to come out anyway. The fact that he has been able to amass a figure of some $34,000 in the past four years while living on an income of $350 allegedly a week, is one that calls for comment. I accept that his business endeavours must raise more money than he declares by way of tax. That is also implicit in his assertion that he can borrow money to pay the wife out. His evidence that he has benefactors prepared to assist him in Country H, and through families elsewhere, was flimsy to say the least. Even if these parties advanced him money he would have to after all repay it. In my view, the husband has earned and kept more money than he has disclosed. Both parties are keenly financially attuned and both have been incomplete in their discovery and in the end I think they cancel each other out in this regard.
While the husband has undoubtedly chosen to earn a lot less than he could have the fact is he did produce an income throughout the entirety of the relationship and the wife’s earnings were never of any great amount. The husband’s obsession with the wife receiving statutory benefits is just part of his general anger against her more overall but whether the wife has misconducted herself in relation to Centrelink payments is something I am not able to make any specific finding about. It is just part of the confusing overall picture of the parties’ financial arrangements.
What one can say is that the house was paid off within a reasonably short space of time and that no doubt must have reflected the husband’s greater earning capacity until at least 2008.
Balancing all these matter together in my view the parties’ contributions should be assessed as equal.
The Future Needs Factors
The husband of course seeks an equal division and points to his greater age and alleged lack of earning capacity. It is true that he is 63 but he is very highly qualified. What is equally clear is that he does not want to work for anyone else. With the sort of academic excellence he has, and his apparent qualifications, I strongly suggest that after this proceeding is over, as he indeed himself said, he would concentrate his mind more particularly upon his earning capacity and will undoubtedly earn far more than he has of recent years. His evidence was to the effect that this case has in fact consumed his energies and I am prepared to accept that that is so even though it reflects an unhealthy obsession with the litigation. He will earn more in the future than he has now whether he goes back into paid employment or continues to work for himself.
The wife will also earn more in the future and has far longer left to her to do so. True it is that the husband’s qualifications are not so age constrained in the sense that it does not involve manual labour but given that she is 50 and he is 63 it is quite plain that she has far longer left to her and make earnings. She will in the fullness of time move to full-time employment. She will of course loses statutory benefits. So the ultimate outcome is difficult to say.
The husband has diabetes but there is nothing to suggest that his health is otherwise impaired and that with the wife is unexceptionable.
The wife will have the albeit marginally, greater expense of looking after the children for up to the next five years.
In my opinion a two and a half per cent adjustment in the wife’s favour in respect of future needs arising from her greater care of the children is appropriate. Further adjustment in respect of her possibly lower earnings is offset in my view by the greater period of time that she has to amass them.
Superannuation
In my opinion given the length of the relationship it is far more probable than otherwise than that the husband’s superannuation was entirely garnered during the relationship. In my view it is not necessary to say more than that in these circumstances a superannuation equalisation is appropriate.
Just and Equitable
In my view a division of the parties’ property interest 52 and a half per cent to the wife and 47 and a half per cent to the husband with an equalisation of superannuation is indeed just and equitable. I note that the husband will have access to his share of the superannuation if not immediately then in a relatively short time should he be minded to take it.
I have drawn draft orders to reflect these conclusions. The parties will need to address the issue of procedural fairness before the superannuation split can be effected. The parenting orders may also require some attention.
I certify that the preceding one hundred and forty-nine (149) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 30 March 2021
SCHEDULE
A.The Pool:
| Matrimonial Home | $650,000 |
| Addback repayments of loan to wife’s brother received by the wife | $18,000 |
| Husband’s funds retained at separation | $20,000 |
| TOTAL NON-SUPERANNUATION ASSETS | $688,000 |
| $688,000 x 52 ½% = | $361,200 |
| - 18,000 | $343,200 |
B.Superannuation
| Wife’s Superannuation | $1,000 |
| Husband’s Superannuation | $75,796 |
| TOTAL | $ 76,796 |
| $76,796 x 50% = | $38,398 |
| Super split to equalise = | $37,398 |
Key Legal Topics
Areas of Law
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Family Law
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Property Law
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