Contreras and Crosby

FEDERAL CIRCUIT COURT OF AUSTRALIA

CONTRERAS & CROSBY

[2013] FCCA 1758

Catchwords:
FAMILY LAW – Property matter – 12 year relationship – no children – each party over stating their contributions – court rejects “special contributions” alleged by the husband of successfully lodging an insurance claim – weight to be given to initial contributions – self represented wife’s case designed to minimize husband’s contributions and enable her to retain matrimonial home – ultimate finding, factoring in s.75(2) factors – 50/50 division.

Legislation:

Family Law Act 1975, ss.75, 79

Pierce & Pierce (1998) 24 FamLR 377
Hickey & Hickey (2003) FLC 91-143
Stanford & Stanford (2012) 87 ALJR 74
Bevan & Bevan [2013] FamCAFC 116

Applicant:

MS CONTRERAS

Respondent:

MR CROSBY

File Number:

BRC 1596 of 2011

Judgment of:

Judge Willis

Hearing dates:

17 May & 9 September 2013

Date of Last Submission:

9 September 2013

Delivered at:

Cairns

Delivered on:

23 December 2013

REPRESENTATION

Solicitors for the Applicant:

Self-represented

Counsel for the Respondent:

Mr Priestley

Solicitors for the Respondent:

Crane Paskins Law

ORDERS

That the property identified in the non superannuation asset pool be divided between the parties as to 50% to the wife and 50% to the husband with the parties to retain sole ownership of their own Superannuation Funds.

To effect this division the following orders apply:

To enable the wife an opportunity to pay out the husband and retain the former matrimonial home, that by no later than 4:00 pm on 7 February 2014, the wife shall pay to the husband such amount to effect the result of the husband receiving an amount equal to 50% of the total net assets (excluding superannuation) at the value as determined by the Court and shown on the asset table at paragraph 67 of the judgment (“net assets” $406,065.00) at the husband’s direction, in full and final settlement of this matter.
That simultaneously in compliance with Order 2 above, the husband shall do all acts and things and execute all documents necessary to transfer to the wife all his right, title and interest in the [M] property.
That simultaneously in compliance with Orders 2 and 3 above, the wife shall do all acts and things and sign all documents necessary, to discharge the Commonwealth Bank of Australia Mortgage No. [omitted] and thereafter the wife shall keep indemnified the husband in relation to all past, present and future liabilities to the Commonwealth Bank with respect to the above account, if any.

[B] investment

The husband and wife are to do all acts and things to enable their joint interests in this investment to be transferred to the wife. In the event the husband and wife are able to transfer, receive any dividend or able to withdraw funds from the [B] Investment, whichever occurs earlier:
(a)If entitled to transfer the investment, the parties shall do all acts and things and sign all documents necessary to cause the investment to be paid to the wife;
(b)If entitled to receive dividends, the husband and wife shall do all acts and things and sign all documents necessary to cause dividends to be paid one hundred per cent (100%) to be paid to the wife;
(c)If entitled to withdraw the investment, the husband and wife shall do all acts and things and sign all documents necessary to cause closure of the joint investment account and for the balance, if any to be paid one hundred per cent of the remaining balance to be paid to the wife.
The wife shall retain the sale proceeds arising from the sale of the [B] unit to the exclusion of the husband.
That any furniture, household contents and personalty at the former matrimonial property, shall be divided equally between the parties NOTING that the husband is to retain the piano.
That the husband and wife shall be solely responsible for all outstanding personal liabilities in their sole name to the exclusion of the other.
The husband shall retain all superannuation entitlements held in his [S] Superannuation Fund to the exclusion of the wife.
The wife shall retain all superannuation entitlements held in her sole name to the exclusion of the husband.
Each party shall indemnify the other in respect of any expenses, outgoings and liabilities related to all items of property retained or received pursuant to these Orders.
Except as otherwise provided for in these Orders, the husband shall be and is hereby declared to be the sole legal and beneficial owner to the exclusion of the wife of all property and chattels of whatsoever nature and kind in his ownership, possession or under his control as at the date of these Orders.
Except as otherwise provided in these Orders, the wife shall be and is hereby declared to be the sole legal and beneficial owner to the exclusion of the husband of all property and chattels of whatsoever nature and kind in her ownership, possession or under her control as at the date of these Orders.

Default Provisions:

That in the event the wife is in default of payment in Orders 2, 3 and 4 herein then unless otherwise agreed in writing, on February 8 2014, the following orders shall immediately apply:
(a)The [M] property shall be listed for sale by private treaty with a nominated agent agreed between the parties and failing agreement as nominated by the President of the Real Estate Institute of Queensland (or his nominee) within twenty-eight (28) days of the date of 8 February 2014;
(b)The sale price of the [M] property shall be as agreed in writing between the parties and failing agreement shall be advised by a valuer nominated by the President of the Real Estate Institute of Queensland (or his nominee).
(c)The wife and husband shall co-operate in every way with the nominated agent, including but not limited to:
(i)Making the key available to the agent;
(ii)Allowing inspections of the said property at all reasonable times as requested by the agent;
(iii)The Wife, who shall be entitled to remain in sole occupation on the condition that she ensures the mortgage repayments, house insurance and rates payments are made as and when they fall due pending the sale, shall ensure that the house is kept in a manner suitable for presentation to appropriate vendors and comply with all reasonable requests of the selling agent;
(iv)In the event that the wife vacates the property prior to sale, the husband and wife shall equally pay the mortgage repayments, insurances and rates with respect to the property.
In the event the property is not sold by private treaty within three (3) months, then unless otherwise agreed between the parties in writing:-
(a)The parties will list the property for sale by public auction with an agent appointed pursuant to paragraph 14 of these Orders. Neither party or their agent are permitted to bid for the property unless there is a written agreement between the parties to this effect and this is known by each of the parties at the time of agreeing to the reserve price and the listing price;
(b)The reserve price for the purpose of such auction will be such as the parties agree upon within fourteen (14) days after the date upon which the property is first listed for sale in accordance with paragraph 14 of these Orders or in the absence of agreement a price determined as fair market value by the agent.
(c)In the event the bidding at the auction does not reach the reserve price, the parties may negotiate with the highest bidders or any other interested person and effect a sale of the property at a price which is not more than five per cent (5%) below the reserve price;
(d)If the property remains unsold, the parties do all acts and things necessary to immediately relist the property for sale by public auction, again on a date nominated by the agent.
On settlement of the sale of the property, the proceeds of sale shall be paid in the following manner and priority:-
(a)The costs, expenses, commissions, advertising fees and disbursements of the agent and/or auctioneer conducting the sale;
(b)The costs and fees of any lawyer acting on the sale;
(c)The sum or sums necessary to discharge any mortgage, encumbrance or registered charge against the title of the property;
(d)Any outstanding Council rates or water rates;
(e)As to the balance between the husband and wife, and subject to Order 17 herein applying to each party:
(i)an amount is to be paid to the wife such that she receives 50 % of the sale proceeds less the value of assets as identified in the asset pool referred to in the judgment at paragraph 67 to be retained by her pursuant to these orders, (namely the [B], the proceeds of the [B] unit and the add back funds – in total $122,294.00)
(ii)the balance to the husband.
That in the event as at the date of settlement of the sale, there are any mortgage repayments, insurance or rates instalments outstanding by the wife or husband pursuant to the terms of these Orders, and then the outstanding amount shall be deducted from their share of the sale proceeds payment in Order 2,3,4 and 16 pursuant to these Orders.
The Orders provided for in these Orders at Orders 5 to 13 inclusive, apply to the default provisions identified at Orders 14 herein onwards.
Either party have liberty to apply on the giving of seven days notice in writing to the other for the interpretation and/or enforcement of the terms of any paragraph of this Order and for consequential Orders.

NOTATION:

(a)The parties agree that these Orders are intended to end their financial relationship as far as possible in relation to property settlement pursuant to the provisions of Section 81 of the Family Law Act 1975.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 1596 of 2011

MS CONTRERAS

Applicant

And

MR CROSBY

Respondent

REASONS FOR JUDGMENT

The parties in this matter are unable to agree about the division of property between them following the breakdown of their marriage. The parties commenced a relationship in 1998, and they were married [in] 1999 in Brisbane and separated on 1 April 2010. The relationship is therefore around 12 years. The parties divorce occurred on 4 June 2011. There are no children of the relationship.
Each of the parties at the time of trial has since re-partnered and each lives in a de facto relationship. Each of the parties has also had a child in their new relationship. The wife has re-partnered with Mr B. They have a child together, [X], born [in] 2013. The husband has re-partnered with Ms A. They have one child together, [Y], born [in] 2011, currently aged two.
The wife has been self-represented in these proceedings which has made the proceedings longer than they otherwise might have been. The husband has been represented by Mr Priestley of Counsel.
The wife was born in [B] [in] 1974. The husband was born in Australia [in] 1977. The wife is aged 39 and the husband is aged 36. Since the wife has given birth to [X] she has ceased working and is supported by some savings and her de facto partner, Mr B.
It seems that after separation in April 2010 the husband moved [overseas] with his then new partner Ms A. The husband and his partner stayed in [omitted] for approximately two years, returning only in September 2012. The husband lives in a house owned by his own father and, at the time of trial, is on Centrelink benefits, similar to Newstart. The husband is on a scheme where he is invited to put forward a business proposal and he is receiving benefits on that basis. He says he was on a disability pension for three months, which only started just after this trial’s first date concluded, that being May 2013.
However, having lodged his claim based on documents evidencing a back injury in 2004, and apparently also relying on psychological issues of being anxious, the husband was initially paid a disability pension. He says he opted out of that pension, and prefers to be on a scheme similar to Newstart but more focused on establishing your own business. The husband describes himself as being quite entrepreneurial.
When the parties were living together they moved into the husband’s own father’s home at [P], after renting together for about six months. The wife describes herself as a qualified [omitted]. The husband was working as [omitted] on a full-time basis, earning around $41,000.00 per annum when the parties got together. The wife did not obtain paid employment until September 1999, which is about 12 months after they commenced their relationship, and it took that long to have a work visa granted.
The wife says she had savings of approximately $30,000.00 which she brought with her and she had money in a bank account in [B] which she lived off and remained self-sufficient. The wife says she took control of their finances during their entire relationship as the husband was unable to control or manage money. This seems to be agreed between the parties. The husband gave evidence that effectively he is completely at a loss in dealing with financial matters. That was obvious from many of the answers that he gave during the trial. The husband may be entrepreneurial, as he describes himself, however he is no bookkeeper and seems to have little focus on practical money matters. The parties lived together in [omitted].
I have had regard to the evidence, exhibits and submissions. Statements of fact represent findings in these reasons unless indicated otherwise.

The Witnesses

The Wife

The wife was cross-examined about her contributions. I have to say at the outset that the wife has a rather unfortunate habit in this matter of double-counting wherever possible. Whether or not the wife did this intentionally or unconsciously is probably beside the point, but this conduct certainly makes for a difficult layer of complexity when trying to work out what her initial contributions were and other matters.
The mother prepared her own material which is voluminous. It became very apparent during both her cross examination and during the wife presenting her own case, that I have to be cautious taking into account anything said by the wife. I am satisfied that the wife has set out in this matter to present her case so as to exaggerate her own contributions and diminish or deny completely the financial and non-financial contributions of the husband. It was also very apparent during the hearing that the purpose of presenting her case in the one sided manner in which she did, was to enable the wife to retain the matrimonial home. Essentially the wife had the view that what she bought into the marriage was hers and that she should retain the former matrimonial home as she believes she put in most of the funds that went into the marriage.
The wife is very astute with finances and a very good money manager, in stark contrast to the husband who seems to have a very limited understanding of financial matters. The husband admitted that he was quite hopeless with money matters and that was also quite apparent during his cross examination. However, the wife quite deliberately was obstructionist at times about properly conceding that the husband earned an income during the marriage and that those finances were used in their joint endeavours, acquisition of assets and payment of debts throughout the marriage. The wife followed every avenue possible to demonstrate that the husband was better off financially than he says he is and that she had made greater financial and non-financial contributions than the husband.
Having seen the husband cross examined I am satisfied that he is not in receipt of ongoing funds or any funds from the Family Trust established by his father. There is no evidence to support any assertion that he receives income from that source.
I am satisfied that the wife paid the mortgage when the husband left and that, as the wife herself said, she told the husband I do not want you to be responsible for the mortgage after separation as she had sole occupation of their former home. The wife contended that she had paid $33,000.00 for maintenance over and above the mortgage repayments. This was one of the various issues about which, when the full details were examined, the wife was overstating her position. Apart from the constant reference to her post separations contributions being “over four years” which was inaccurate, they were over three years, the wife ultimately had to concede that her maintenance expenses she sought to claim in regard to the property was not $33,000.00, but instead it was $16,800.00.
One of the expenses which the wife factored into that sum was $10,000.00 worth of solar panels installed in between one hearing day of this matter and the resumption of the second hearing day. The house was not valued with the solar panels and the wife never suggested to the valuer that the house was now worth $10,000.00 more nor was there any evidence that this was so. I therefore do not accept that the expenditure increased the value of the house. The wife never obtained the husband’s agreement to spend this amount and says she wanted to install the solar panels by a certain date to take advantage of the subsidy.
The wife also sought to include in her description of “post separation maintenance” a fee each year of $2,375.00 imposed by the bank on their mortgage. It was subsequently agreed by the wife that the mortgage fee would be included in the balance owing on the mortgage. The court asked the wife if she was in effect “double dipping” given that the net value of the house would be minus the mortgage and that she was adding that fee on for the post separation years as a separate amount. The wife agreed that she was double dipping[1]. This approach was typical of the wife’s attitude to the whole property matter.
[1] Transcript page 77, line 25 to 30.

The Husband

It was apparent when the husband was cross examined that he knew very little of the world of finances or even much about his own. I considered that he sought to overplay his contributions almost as much as the wife sought to underplay his contributions. He sought to overplay the extent to which his past depression might affect his future work. I had the impression that the husband was in fairly dire financial circumstances at the time of the trial, and that with the arrival of his new child that perhaps the husband is motivated to make some moves to create an income for his new wife and child.
I do however accept that the husband worked for significant periods throughout the marriage and that he contributed to the parties’ finances, at times earning more than the wife. However, the husband also had time out of the work force whilst he developed new ideas and during that time the wife worked. The wife was stubborn in her refusal to accept that the husband transferred money to her account or for repayment of credit cards relating to the marriage. I accept that he did contribute his earnings to the marriage and that he did pay their joint debts.
The wife also stubbornly refused to agree that money she deducted from the parties’ account at separation ought to be attributed to her sole use. The husband was understandably frustrated at the wife’s narrow focus in her proposals to exclude certain assets from the property pool. The husband however sought to overplay the value of his contributions such as the weight to be given to what he described as his successful claim against a building authority, following his engagement of a builder who performed substandard work. I have referred to this issue elsewhere in this judgment. What was apparent to me having watched and heard each of the husband and wife give evidence, was that they have different work ethics and priorities. However, whilst they were living together and doing so happily, they each bought what they could to the relationship. Now each seeks to give commentary putting their role and contributions within this marriage in such a way to elevate the importance of their own contribution and diminish the importance of the other party’s.

The Law

In this matter I am required to follow the approach to property division set out in various authorities and described as a four step process in cases such as C & C (2005) 33 Fam LR 414; In the Marriage of Hickey (2003) FLC 93-143 and Ferraro and Ferraro (1993) FLC 92-335. The four step approach is to first determine the pool of assets and liabilities, then evaluate each of the parties’ financial and non-financial contributions during the marriage and post separation, determine if that contribution figure requires adjustment in light of the relevant section 75(2) factors and finally to consider whether the proposed result is just and equitable in all of the circumstances having regard to the actual result in real dollar terms.
The recent High Court’s decision in Stanford v Stanford (2012) 87 ALJR 74 states that the Court is also required to consider whether it is just and equitable to make an order adjusting property interests, as also explained by the Full Court in Bevan & Bevan [2013] FamCAFC 116.
In this matter I have had regard to the length of the marriage and the asset pool and I am satisfied that it is just and equitable that I proceed to make orders regarding the division of their assets. The parties are seeking orders for the division of their assets.
One of the issues which has been a central issue in this matter, has been the weight to be given to the wife’s initial contributions.
The matter of Pierce & Pierce[2] stated:
“In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all of the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.”
[2] (1999) FLC 192-844. (Ellis, Baker and O’Ryan JJ).
At paragraph 30 their Honours stated:
“There is an obligation on a trial Judge not only to identify the relevant contributions, but also to assess them.”

Stage 1 – Determine the asset pool

There are several issues about which the parties have been in disagreement and which need to be examined before determining what assets are in the asset pool.

The former matrimonial home at [M]

The first of those issues includes the main asset in this property matter which is their former matrimonial home at Property M, [M]. The wife is living in that property. A single expert was appointed to value the property and at the commencement of the trial Mr Priestly informed the Court that the husband challenged the amount of the valuation as referred to by the single expert and that Mr S the valuer was required for cross examination. He was cross-examined. I am satisfied that the value adopted by the single expert, Mr S, who valued the property at $540,000.00, withstood all challenges put to him during cross examination. I found no issue in his methodology, or in his comparative sales method, or in the properties relied upon as comparative sales to reach that value and I adopt the value for the former matrimonial home of $540,000.00.
At the conclusion of the evidence, Mr Priestly informed the Court that it was difficult to argue a greater valuation and that the value as deposed to by the single expert in his report was accepted. That asset therefore will be included in the asset pool with an asset value of $540,000.00.

The [B] unit

The other asset of some significance is the [B] unit which the wife purchased when she was 21 years old prior to meeting the husband. There is agreement that the wife owned this apartment prior to the marriage, however there is disagreement about issues which flow from the wife’s acquisition of this unit including the weight to be given to that contribution and the repayment of an alleged loan by the wife after the sale, and after separation. The unit was sold by the wife at separation in 2010 and the proceeds of sale, it is agreed, were $143,000.00.
When the wife purchased the unit at age 21, she installed a tenant and the rent went towards her mortgage. There was however a shortfall each month between the rent and the mortgage repayment. The shortfall towards the mortgage repayment was paid from the time of acquisition in 1997 until the time it was paid out in approximately June 2005[3] by the wife’s parents (who have since separated). Each paid one-half of the top-up amount between the rent payable by the tenants and the amount of the mortgage, every month up until the mortgage was paid off in 2005. It is the wife’s case at trial that that the top up amount paid by her mother and father was paid on the basis that one day the money would be repaid. In other words the top up amount was always a loan.
[3] Affidavit paragraph 13 filed 18 May 2012.
The wife asserts that she sold the [B] unit at separation because her mother and step-father were in a difficult financial position. At the time of separation in 2010 the wife said that her mother and new step-father who still live in [B] were affected by the global financial crisis, that they had money sitting in a bank, and that it wasn’t earning sufficient interest. She says that their funds in their bank represented the extent of their savings and that her mother and step father wished to transform that money into a different asset, namely real estate, in the hope of getting a better return. The wife’s evidence then continues that knowing her mother and step-father were in this position, she therefore agreed to sell to her step-father the unit and to pay back to her parents the money loaned to her. The sale occurred in 2010. The sale proceeds were $143,000.00.
The wife’s case is that the sum of $69,000.00 represented the amount of the loan from her parents (or value of the “top-up” payments”). Deducting that amount from the sale proceeds of approximately $143,000.00, the wife says that she therefore has $70,000.00 of the sale proceeds remaining. The wife says she paid one half of $69,000.00 to each of her mother and father.
The wife’s own mother Mrs M who lives in [B] and who spoke through an interpreter organised by the Court, was in Australia at the time of the first day of the trial. Mrs M gave evidence in support of her daughter to confirm that her second husband did offer to buy the apartment from the wife (her daughter). Mrs M was cross examined. She gave evidence that her husband bought the apartment. She admitted that the wife helped her with her affidavit. She confirmed that the [B] unit was sold in 2010 and that the sale proceeds went into the wife’s account in [B].
Mrs M also stated that the money stayed in her account from 2010 until 2013 in around April. Mrs M gave evidence that in 2008, with the bond crash, all the sales went down, that she and her second husband were pensioners, they were retired and that in 2010 [Ms Contreras] had the necessity to sell her apartment, so her father (step) bought the apartment from her.
When it was suggested to Mrs M that it was unlikely that if they had lost a lot of money that they would then go and buy another asset, the response from Mrs M was that it was not her money, it was the money of her second husband. Mrs M said that her husband had the money in a bank account that he had received as a type of bonus when he got his retirement from his company.[4]
[4] Transcript, page 199, lines 20 to 25.
Mrs M was asked by Mr Priestley of Counsel for the husband questions about why the sale proceeds had been sitting in her account for the past years and why it was only divided in 2013.
Mr Priestley asked, “when did it happen?” Mrs M replied,
Okay. So it was about one month and a half – it was one and a half months ago I came with my actual husband, my ex-husband, we came to visit [Ms Contreras] and when our grandchild – because we haven’t seen her since 2010 and that is when we have decided to finalise that matter.
It was suggested that the money was a gift and Mrs M said that no, it was a reimbursement. Mr Priestley put to Mrs M the following proposition:
“And the reason that the money was, you say, paid in 2013 instead of 2010, was because you have done it to try and improve [Ms Contreras]’s position in this case about her marriage?”
Mrs M replied, “No, it was to improve our life – our lifestyle, our life’s condition.”
Mrs M confirmed that her husband gave [Ms Contreras] (the wife) 3000 [currency omitted] every month to top up the gap between the rent and the mortgage and her husband paid 2000 [currency omitted]. I am satisfied that this occurred. Mr Priestly of Counsel suggested to Mrs M that there was no agreement of the type suggested that her daughter [Ms Contreras] was to repay her this money, and the response was, “Okay. Not at that time. But after the crash and all the loss of the money, the shares and all of that in 2010, they talk to [Ms Contreras] and told her that after the sales of the apartment she will have to reimburse all the money that they have given her up front.”[5]
[5] Transcript, page 121, line 45.
The court asked Mrs M about what discussions were had with whom about the repayment. Mrs M replied that:
So we have discussed it together with [Ms Contreras] and she realised that we have helped her for 10 years so it was a time to… to help us too.[6]
[6] Transcript, page 122, line 15.
Mrs M gave evidence that after the crash:
All our shares went down. We had planned when we retired to have a certain lifestyle but after all the shares went down it was really more difficult for us as retired people, so that is why we decided in 2008 to – to sell this apartment.
Mrs M explained that in 2008 with the bond crash, all their sales went down, so since they were pensions, they retired, it was very difficult for them. In 2010 [Ms Contreras] had the necessity to sell her apartment, so her father bought the – the apartment from her.[7]
[7] Transcript page 119 line 15.
In terms of the mechanics of transferring the money only in 2013, when challenged as to the method used, Mrs M confirmed that they encountered previous problems in trying to do money transfers on an earlier holiday and their money went missing for 2 months. Subsequently they decided against trying to move the funds around until they all came to Australia and were all in the same place at the same time. This had happened in 2013. Mrs M and her first husband remain on good terms. Mrs M also advised it was done about a month and a half ago (as advised on 17 May 2013) when she and her husband and ex-husband all had a family meeting in Australia at [Ms Contreras]’s. It seems that they all came to Australia to see their grandchild.
In terms of how the money for the apartment got repaid, the court asked:
Exactly how did the money from [Ms Contreras] get repaid, I am talking about the money for the apartment that it was decided should go back to her and where were they when it was repaid?‑‑‑Okay, exact amount, it has been – it has been done by [Ms Contreras]’s bank account in [B] to our bank accounts in [B].
Mr Priestley submits that the wife returning the $69,000.00 to her parents was not necessary. He submits that the wife conceded that it was a gift of $69,000.00 from her parents.
Having heard the evidence of Mrs M and the wife, I am satisfied that it was a family arrangement to make these top up repayments on behalf of the wife and that it occurred long before the husband commenced a relationship with the wife. This arrangement was effectively two parents helping their daughter acquire property. The wife introduced this asset into the marriage paying $60,000.00 for the unit, the mortgage being $45,000.00. The value of the unit has grown during the marriage and it has crystallised into proceeds of sale after expenses (the mortgage paid out in 2005) worth $143,000.00. Apart from a global indirect contribution it is difficult to consider that the husband can claim much in the way of contribution on this overseas asset. The wife paid the acquisition price back when she was 21 years old, the tenants and the wife’s parents paid the mortgage. The wife’s parents in continuing to pay this amount each month, both before and after the marriage, have enabled the wife to retain the unit. After the mortgage was paid out, the wife continued to receive rental income from the unit.[8]
[8] Paragraph 13 mother’s trial affidavit.
If as submitted by the husband, the amount paid by the wife’s parents each month for years was not a loan, the amount becomes a gift and in terms of contributions, like the initial acquisition, is a contribution made on behalf of the wife, not the husband.
If the parents top up payments were a loan, that loan was properly returned at the time of the sale.
Whether it was a loan or a gift, it is agreed that the parties did not pay this top up amount. Having heard the evidence of Mrs M, I accept that what happened is what she deposed to. Initially the parents may have intended to make the payments as a gift back in 1997 to help the wife acquire her own real estate. The top up payments, continued for years. It was paid off fully in 2005 from memory. After many years though, the parents retired, their own fortunes changed, they were considerably older and it was agreed within the family that the indulgence of her parents paying the monthly amount should now be repaid, given the position that the parents found themselves in and the wife’s step dad’s more difficult retirement situation.
I do not consider it is unreasonable in a family arrangement where those that had been supporting the wife in paying what was her debt since 1995, that when the global financial crisis affected her parents (who had lost on Mrs M’s evidence, a lot of the value of their shareholding) that it was unreasonable for the wife to return to her parents the money they paid on her behalf, that is the $69,000.00. Such arrangements of helping each out is not unheard of in family arrangements and I accept the evidence of Mrs M that what had been intended as a gift in better times, was called upon by herself and her husband when she and her husband retired, and her and her current husband’s fortunes were altered significantly post the global financial crisis. I do not consider that the wife acted recklessly, negligently or dishonestly in agreeing to return a portion of the sale proceeds to her parents. If the husband and wife in this matter had remained together, given all of the circumstances and the wife’s parent’s fortunes diminishing in their retirement, I would consider that the husband could expect to have very little if any say about such a family transactions and whether or not the wife should or should not repay her parents. I do not consider the wife’s agreement to do so, should be seen in a sinister light, because it occurred at separation. As I have said elsewhere, I accept that the wife has attempted to portray herself as the sole contributor to the parties’ financial net worth and that the wife is dismissive of the husband’s contributions, however, in regard to this issue, I accept the evidence of the Mrs M and the wife about this family arrangement.
The husband challenges the wife’s motivations and submits she is just trying to reduce the property pool. This position seems to ignore the fact that if the $69,000.00 was also a gift, the wife’s contributions would increase to a greater amount. It was clear from watching each of the husband and wife parties being cross examined, that there is much acrimony and mistrust between them when it comes to financial affairs. In any event, I am satisfied that it was the wife’s prerogative in light of the effect of the global financial crisis and the bond crash upon her parents’ retirement savings, to return the amount that they had given her over many years, whether it was initially intended as a loan or a gift.
Mr Priestley submits that if the parents did not pay the gap or top up payment, that the husband’s provision of accommodation enabled the wife not to have to pay it. I do not accept this logic. What enabled the wife not to have to pay the gap between her rent and the mortgage were the payments of money each mortgage repayment by the parents. Mr Priestly of Counsel, who I should say has been helpful during this trial and who showed much professionalism in the face of the self- represented wife’s tendency to make misstatements and misquote the evidence, queried whether the funds had actually been paid to the wife’s parents.
I am satisfied that the amount that should be included in the asset pool, in terms of the [B] unit is $143,000.00 less the $69,000.00 (which has been returned) which should be $74,000.00. I am also satisfied having reviewed the transcript, that the amount reimbursed by the wife to her parents has in fact been paid as sworn to by Mrs M. Mr Priestly of Counsel asked Mrs M about this repayment and on two occasions

Mrs M stated that the funds had been moved “about a month and a half ago” moving from [Ms Contreras]’s bank account in [B] to our bank account in [B].[9]
[9] Transcript page 123, line 15 to 30 and page 119 line 40.

Wife’s withdrawal of joint funds at separation

The final issue is in regard to the withdrawal of a sum of money at the time of separation by the wife. Despite her protestations that these funds represented her own post separation savings, I am satisfied that the wife withdrew joint funds and transferred them into her own account and thereafter referred to the funds as her own “post separation” savings. A sum of approximately $40,000.00 was withdrawn by the wife as seen in the records which form annexure C to the husband’s trial affidavit. I accept that the money trail shows the wife removed first $35,419.00 on 30 April 2010 from the Netbank Streamline Unlimited Saver (account [omitted]). On 3 May 2010 the wife withdrew a further $5,500.00 and again transferred it ultimately to her own account. I am satisfied on the evidence that the wife withdrew the sum of $40,919.00 from their joint account and put it into her own account. That sum should have otherwise been available for distribution between the parties on the percentage split determined by the court. It is instead in the possession of the wife. The transactions are patently clear as seen in the exhibited bank accounts. This is another issue about which the wife obstinately refused to concede the obvious until after she had been cross examined. I intend to include the sum of $40,919.00 in the asset pool as I regard it as a joint asset, removed from the pool solely by the wife.
The wife says that she maintained an account of her own which could only be accessed by internet transfer. She asserts that the husband has also maintained his own account. When considering the cash in each of their accounts, the parties agree that they received an insurance payout of $22,000.00 at or around separation and that they split those funds 50/50 and each put their half of the funds into their own account.
The wife says that the $11,000.00 which she put into her bank account was part of the money she withdrew at separation. I do not accept this. Straight out withdrawals from their joint funds, which total $40,919.00, were removed by the wife and placed into her own account.
The wife says I should not include this sum of $49,919.00 in the asset pool as the husband has some secret savings somewhere else that he has not disclosed. The wife relies on his non- disclosure of accounting records for the companies operated by the husband during the marriage, and submits that because the husband has not been forthcoming with these documents, the court should draw an adverse inference and conclude that he has secret savings somewhere. I have already made a finding that tax returns were disclosed by the husband. I am not prepared to make a finding that the husband has secret funds hidden away as asserted by the wife. It is pure speculation. There is no evidence to support it.

As to the complaint by the wife that the husband has not disclosed the documents relative to the companies which were operating during the marriage, I reject this complaint. Documents such as tax assessments are included in the wife’s own list of documents relating to [I] Pty. Ltd and [N] Pty. Ltd as seen at SVC 19 in the wife’s list of documents.
The husband has not lodged BAS statements, and he admits that his tax affairs are completely in a shambles. My observation is that it is a lot more than being in a shambles. The husband may very well be committing an offence under the Tax Act. He has not, however, been living a life of great comfort and excess post separation. I am not satisfied that the issue of him disclosing bank statements for the companies that he was running in the last years of their relationship is of any great moment. It is more in my view about his laissez-faire attitude to financial affairs and being disorganised with his bookwork. As I said the husband sees himself as being entrepreneurial in setting up new businesses, but he does not seems to give much if any value to the keeping of proper records or complying with accounting requirements or taxation obligations, all issues that any successful business would take for granted. It has, of course, been open to the wife to issue subpoenas for the relevant bank accounts, which she has failed to do.
Having regard to all of the circumstances of the husband’s and wife’s wealth during the relationship, and the husband’s post separation and current circumstances, I do not accept that alleged failure to disclose bank statements of the company accounts (noting I have tax returns) would in any way justify this court concluding that there are hidden assets somewhere held by the husband. This issue encapsulated the contradictions in this case held forth by the wife. When it comes to earning money, the wife contends that he earned almost nothing during the relationship. Having made that submission, the wife then goes on to submit that there must be significant funds held somewhere in an unknown bank account. I am not sure that the wife has ever realised the contradictions in her own arguments. As I have said, she, not unlike the husband, sought to overplay her own contributions to fit the case she sought to run. I would add that there is no evidence to support any finding that the husband has been receiving any benefit from hidden funds. Quite the opposite is the case. He has purchased a 16 year old car in November 2012, just prior to the trial to replace the former car for around $5,000.00. He has been living in the home of his de facto partner’s parents in [omitted] and now lives in his own father’s home, rent free. He is on social security benefits at the time of the trial. As I said to the wife, there is no sense about the husband’s current finances that suggests to me he has a lot of money squirreled away.
The wife also sought to raise an issue about the husband retaining an amount of $26,000.00 which was the payout figure on an insurance claim for a car post separation. Again, only after cross examination would the wife concede that the amount was used by the husband to pay out the debt on the car, and not as was alleged by the wife, retained the funds for his own use. This was a further waste of time by the wife.
Another issued the wife raised was that the husband had an interest in the “Crosby Family Trust”. The husband is not a named beneficiary to this discretionary trust and he has no power of appointment or control. Whilst there is some one-off distribution to the husband years ago, the husband’s evidence was that he never received the funds. I accept this. There is no evidence of him being a beneficiary of funds from the trust such that the court could conclude that this is likely to be a source of income for the husband or that it has in the past been a source of income for the husband.
Another issue raised by the wife was that the husband had a financial interest in a property at [P]. As I understand it, the wife alleged the husband had a quarter share (inherited) in this property. I am satisfied on the evidence that the extent of the husband’s interest is a 1/8^th interest, or more particularly a quarter interest in the ½ interest previously held by [name omitted], as a remainder man, along with his three other siblings, in the [P] property. This interest has not materialised at the time of trial, there is no evidence as to any value which could be ascribed to it. It is an interest which may never amount to any significant financial gain for the husband and this certainly has not happened at the time of trial. The value given to such a small holding and what amount of capital would ever be realised by such a holding will be regarded by me as minimal. It is not an asset which I consider could be included in this asset pool. The whole issue is so speculative as to what if any funds would ever be realized by this minority holding.
In terms of vehicles, the parties had a Mazda and a Toyota Hilux on or around the time of separation. The wife’s evidence is that the Mazda was purchased 3 months prior to separation and that she solely paid the car repayments from the time it was acquired. Importantly, the wife paid all of the car repayments since separation until the trial. This is not contested. The other vehicle, the Toyota Hi-lux was written off in April 2010 when it was in the possession of the husband. The husband received the proceeds, however, he paid those proceeds towards the debt on the car. The wife started off this trial by saying that the husband retained these proceeds. During cross examination she conceded that the husband used the payout figure to pay off the debt. Since then the husband has acquired a vehicle paying just a few thousand dollars for it and that vehicle was involved in a fire and burned not long before the trial. As I have said elsewhere, the husband and his wife then purchased together a Mitsubishi Pajero, 1996. It cost them about $5,000.00. The husband notionally owns half.
The wife submitted that I should exclude the Mazda which she retains from the asset pool. Whilst the wife submitted that most of her assets be excluded from the asset pool, which I am not accepting should occur, I have decided that given that the wife alone paid for the Mazda repayments, that there can be no suggestion that the husband made post separation financial contributions to this debt. The husband concedes that he has not made any post separation financial contributions. I consider therefore that it will distort the property pool to include the value of the Mazda in the property pool as the remainder of the property pool are assets and liabilities acquired or incurred during the relationship. I consider that the Mazda should be seen on an asset by asset basis, given it was acquired 3 months prior to separation. I have therefore decided to remove that car from the pool and the debt that goes with it, along with the post separation vehicle acquired by the husband and his new wife. The wife is naturally to remain responsible for the remaining debt.
I have had regard to each of the party’s asset pool figures as seen in exhibits H5 and W5. I have largely accepted the husband’s asset pool however, I have deleted the $69,000.00 which has been reimbursed to the wife’s parents from the actual sale proceeds of the [B] unit, which brings that figure from $143,000.00 to $74,000.00. I have also noted that the figure of $40,919.00 should be inserted as funds otherwise available for distribution at the time of separation, those funds being the funds withdrawn by the wife. The wife wishes to include as a joint debt her current tax debt. I do not regard this as a joint debt, given the parties separated three years ago.
Having had regard to the forgoing findings, I am satisfied that the Asset Pool consists of the following assets and liabilities:

Asset	Value
ASSETS:
Property M, [M]	$540,000.00
[B] Investment	$7,375.00
[B] unit proceeds	$74,000.00
CBA account (add-back money removed)	$40,919.00
Total Assets	$662,294.00
LIABILITIES
CBA mortgage; FMH	$250,000.00
Amex (estimated at separation)	$2,000.00
St George Visa	$4,229.00
Total Liabilities	$256,229.00
NET ASSETS:	$406,065.00
Superannuation
[C]	$46,191.00
[S]	$41,820.00
Total Superannuation	$88,011.00
TOTAL POOL:	$494,076.00

Contributions

The Wife

At the commencement of the marriage, the wife received gifts from her family of money, and of selling a car. I accept that, in all, she had a sum around $30,000.00, which she brought into the relationship. It is not contested that the wife also owned an apartment which she had bought in [B] many years before meeting the husband, which I have referred to elsewhere in this judgment. She purchased the unit in 1995 for $60,000.00, subject to a mortgage of $45,000.00. The mortgage was paid by the tenants and the short fall between the rent and the mortgage repayment was paid by the wife’s parents.
Three years later she commenced cohabitation with the husband. The husband concedes that the wife had around, say, $20,000.00 worth of equity in the apartment some three years later, when they got together. The wife’s evidence after cross-examination satisfies me that she had around $30,000.00 from her car and gifts. I refer to page 94 of the transcript in which it was suggested to the wife, after clarification, that if all of those things were taken into account that ended up with a total of $27,000.00.[10] This is in addition to the equity she held in the [B] unit, so in all, the wife at the commencement of the marriage, had assets worth around $50,000.00. This figure does not include the value of the “top up” payments made by the wife’s parents throughout the relationship up until the unit was sold.
[10] Transcript, page 94, line 30.
Of that $30,000.00 in cash, $10,000.00 was used as a contribution to a property acquired by the parties at [F]. I am satisfied that the balance of the funds were used during the relationship.
I am satisfied that the wife worked throughout the relationship when she was able to do so after obtaining her visa. The husband had a year or so off on a sabbatical trying to work out his next business plan.

The Husband

At the commencement of the relationship, the husband had minimal assets and debt at the commencement of the relationship. He had a Ford Courier motor vehicle, he says valued at $24,000.00 with a loan of $17,000.00. He had a Holden Gemini 2000 with a loan of $1,200.00 and an unknown amount of savings and superannuation. He had credit card debts of $3,000.00 or so which was spent on a stereo system for the Ford Courier and the balance for furnishings and consumer electronics.
The husband says he had musical equipment of $21,000.00. The wife says he took nearly all of this with him, save and except a piano, which she is happy for him to have. He took the computer equipment, and he had some small debts relating to speeding fines, and a couple of personal cash debts for $500.00 to his close friends, and he had an outstanding mobile phone bill. He says he does not recall the amount. The impression I have of the husband, is that he was engaged in employment but that he was probably spending most of his money on a day to day basis and he had various debts. Having personal debts of $500.00 to “close friends” confirms my impression that the husband is a poor money manager. There was nothing of any great significance brought in by the husband in terms of assets, he had numerous personal debts which almost match or outweigh the value of the two cars minus the debts. It seems the musical equipment has left the marriage with him.
In terms of contributions, during the marriage, the husband sought to agitate a special contribution for his involvement in lodging an insurance claim from the BSA.
These parties set out together to build a home. They engaged a builder who was less than satisfactory, and the wife would say that the husband dealt with that builder, and got them into the situation they found themselves in and that was that they paid the builder $50,000.00, however the property that was built needed to be pulled down and the building effectively had to be rebuilt. The husband asks the court to give him special consideration for the fact that he successfully lodged a claim with the BSA against the builder and that this claim resulted in the parties receiving the sum of $199,424.00 which was effectively a windfall of $129,000.00 for the parties. The wife says he did not do it himself and that they both were involved in the process of lodging the claim one way or another.
I am satisfied that the BSA claim was driven by each of the parties. It was in their interests to do so. I do not accept that there was any special skill required on the husband’s part to lodge an insurance claim with the BSA. I accept the wife’s evidence that she assisted at a critical time too, when alternate quotes had to be obtained to satisfy the BSA requirements. As I said, I do not consider that any one party deserves any special credit for the fact that an insurance claim is lodged and compensation is received. It is not anything about which a special skill was required. I consider that the money obtained in relation to the BSA claim is not a special contribution of either party. It was simply part and parcel of their marriage partnership, and each did all they could to bring about that claim.

Initial Contributions

Under initial contributions I am satisfied that the wife brought in an asset worth about $20,000.00 and that she had some cash, and cars and gifts, and I accept that she had about $30,000.00. All in all, her initial contributions are in the range of $50,000.00. In terms of the husband’s contributions at the commencement of the relationship, he had modest assets with some debts (mainly 2 cars) which debts almost neutralise the value of the assets. He was not in anything like the secure position that the wife was in.

Contributions – Step 2

Income of the Husband and Wife

In turning to the financial contributions during the relationship, the tax returns available show the husband’s income for those periods. The wife would have the court believe that he did not earn money during the relationship and she was the only one earning money. This was not so. The tax returns show the level of net income. I accept the submissions made that wages paid went into the joint relationship, and that depreciation shown is just a paper loss and that there was more available to the parties than the tax returns would suggest. I accept the husband’s evidence that he basically earned an income throughout the marriage, and I accept that the wife did too. When the parties commenced a relationship, the husband appears to have been working as an [occupation omitted], full time earning around $41,600.00. The wife says he was earning $62,400.00 when he subsequently worked at [omitted] for 12 months, and then $78,000.00 when he worked at [omitted]. The husband was then employed with [omitted] earning $78,000.00 per annum according to the wife. He had a couple of months unemployed.
Once the husband finished his contract of employment [omitted], he purchased an [omitted] company with a friend, paying $10,000.00. The company was later bankrupted and lost all of its capital. Whilst the husband spoke of earning over a $100,000.00 in his company, and whilst that may be so in terms of turnover, the husband did not make the necessary concessions about expenses coming out of a business and appeared unfamiliar with the concept of net earnings. His Counsel though understood that the figures referred to by the husband were gross earnings. One figure was $135,000.00 over 13 months in late 2006 or $10,000.00 per month gross that is, gross income only without any reference to the expenditure for that period. His taxable income, though, in this period at times varied from $28,000.00 to $35,000.00. I consider that the husband sought to overplay his financial contribution by contending that he earned far more than the wife and referring the Court to his figures which were always gross figures. As I have said, I am not sure that the husband appreciates the difference between turnover and net earnings. His calculations referred to his hourly rate but made no reference to the expenses involved in earning that income. In 2008 the husband worked on developing a new business plan though, it seems, brought in little to no income. The wife referred to this period as his sabbatical. I had a strong impression that the husband concentrates on developing businesses or operates them, but has little understanding of the financial management required. It is fair to say that in the early years of their marriage when the husband was changing job locations frequently, he earned more than the wife who was then earning around $35,000.00, however, money was still being borrowed from the wife’s parents or being gifted to the parties to enable payment of debts, some of which were introduced by the husband at the commencement of the marriage. The wife was granted a work visa in September 2009 and commenced work as an [omitted] earning around $28,600.00. She was not permitted to work for about the first year.
The wife made other contributions and also borrowed money from her parents to pay for the husband’s debts at the commencement of the relationship. Because of the husband’s limited income in 2008 the wife’s parents gave them a gift of $5,000.00 to pay a number of urgent bills. The wife also drew on funds from the bank account in [B] to pay bills.
The wife took on two further jobs in 2003 to supplement their income and I accept that her overall combined income in that year was around $93,000.00 which was higher than the husband’s then salary. The husband has not lodged tax returns after 2009. This is typical of his inattention to proper accounting and his tax obligations. There is evidence of tax returns from 1997 and 2002 up until 2009. Sometimes a salary for each of the parties is included in the business as an expense. I accept that the husband has earned an income however I do not accept that his income is a factor worthy of significant weight over and above the salary earned by the wife during the relationship. The wife made other financial contributions as I have said during this period, including putting in gifts of money from her family to pay bills. There have been periods of time such as the year or so prior to separation when the husband was not earning an income and as he says he was working on coming up with a different business plan to earn money.
These parties have always in my view, forgotten that they were in a marriage. I am not satisfied that their exertions at earning an income and contributions during the marriage require any adjustment to either party. They have each worked, they have each had times of not bringing in an equal income. They have bought and sold property. They have each had a year where they earned no income. The businesses that the husband ran during the relationship provided a reasonable income during the marriage, though I do not accept that his net income was in the range of hundreds of thousands of dollars. The husband is quite naïve in my view in regard to business financial workings. The taxable income generated from the companies operated by the husband is not remarkable. I am not satisfied that this income was higher than the wife’s at the same period. The period when the husband’s income was higher was when he was working on a contract with [omitted], however at the end of the marriage the wife’s income was higher than the husband’s.
Mr Priestly submits that the disparity was at its highest in 2002. Mr Priestly asks me to infer that the husband earned more than the wife overall because at a point in time, when the parties acquired the [M] property, a sum of $34,719.00 physically came from the husband’s bank account. Mr Priestly says;
“The reason there was $34,000.00 from the husband’s bank account is because he was saving that money due to his higher income earning and that is another matter to take into account.”[11]
[11] Transcript. page 116, line 25-35.

I do not accept that this sum of money is evidence of greater income. In just examining income, I accept that the husband earned greater income for 3 or so years. There could be a variety of reasons why the husband had that sum of money sitting in an account at that time. Perhaps he was saving it for tax. It is pure speculation. The husband was working for many years in a business generating a reasonable income on a gross basis, much less though when reviewing his taxable income for that period. I reject the wife’s suggestion and inferences that the husband was primarily [sport omitted] and not earning any money. There have been legitimate expenses deducted, a car has been paid for and other expenses such as phones, the use of their computers have benefited the parties. The companies have paid salaries to each of the parties. Income was being banked throughout the relationship and each of the parties paid various expenses. That was examined thoroughly and laboriously at the trial.
This is a relationship without children and whilst I am required to look closely at the financial contributions, this 12 year relationship which is not a short one. I am satisfied that these parties worked together in their marital partnership sharing their funds and working towards their joint goals. Mr Priestly submitted that “I don’t suggest that there isn’t some sort of economic partnership between the parties” and I accept that these parties did work as a partnership, supporting each other during the good years and the bad. I have seen the tax returns for many of the years and the taxable income. The parties both received benefits from the income earned by the husband and the regular income earned by the wife. I consider that the husband is minimising the wife’s financial contributions during the relationship and that the wife is attempting to minimise the husband’s.
The wife was working throughout the relationship, not earning as much for the first few years, though I accept that in 2003 her combined income of her three jobs was $93,600.00 or thereabouts. In 2008 the husband did not earn as much as the wife. At that time she began working for [V] on a full time basis earing $93,600.00 per annum. It seems to me that the wife was supporting the household at this time. In the two years that followed until 2010, the wife was working at [V] and continued on that income. I am not satisfied that after the wife commenced working for [V] the husband earned more than the wife. It seems to be the reverse on the material I have. The wife as I said made other financial contributions through gifts from her family to pay bills. Each of the parties contributed to their joint endeavours including building homes and making investments. The husband sought to criticise the wife for investing funds in [B]. The wife in my view is astute when it comes to saving money and financial management. The outcome of that investment could have gone either way. I do not regard the wife as acting recklessly or negligently in making this investment.
In terms of the contributions I note that there are no children of this relationship and neither party made any submissions that their non-financial contributions should be anything other than equal, other than for the issues referred to in these reasons. I have read the affidavit material about what the wife says she was doing in terms of non-financial contributions. I don’t regard them as being any higher than the husband’s.

Post Separation

Post separation the wife says that she has made financial contributions. I directed the parties to consult about what was an agreed figure spent by the wife over and above the mortgage, on maintenance of the former matrimonial home. The parties agree that the figure was $16,800.00 spent by the wife.[12] Mr Priestly submits that this sum should be seen as part of the cost occupying the home post separation and that including the mortgage, the cost to the wife of around $500.00 per week (for mortgage and maintenance) is something close to what the rentable value of the house would be. Mr Priestly submits that the home is a reasonable three bedroom home and that it would attract rental around this figure. I accept that the wife occupied the home and continued to pay the mortgage. There is some force in the submission made by Mr Priestly. I have noted the post separation contribution of the wife, but also factored in her sole occupancy and the amount paid each week to continue that occupancy.
[12] Transcript, page 147, line 45.
In summary, I am not satisfied that the evidence before me justifies the submission of the Counsel for the husband that the husband should have an uplift of at least 10% or more because of his higher income during the marriage. I consider this submission is without foundation. I consider that any discrepancy between their salaries was addressed when the wife’s salary increased and also taking into account her own work within the companies, and the other financial contributions of gifts of money during the relationship and accessing funds from her [B] account to pay bills occasionally.
Looking at the overall financial and non-financial contributions I consider that the wife is slightly ahead of the husband. Primarily this is because of her initial financial contributions of around $50,000.00. I do not consider, having had regard to the weight given to an initial contribution and the offsetting contributions of the other party[13] that her contributions have been completely eroded over the 12 and a half years of the relationship or in the post separation period. I have taken account of all of the wife’s contributions and the husband’s.
[13] Pierce & Pierce (1998) 24 FamLR 377.
I do not accept that the husband’s alleged higher income during the relationship should warrant that husband receiving 7.5% or 10% over and above the wife, which was submitted.[14] I do not accept that the wife’s ability to upgrade her standing from an [occupation omitted] to an [occupation omitted] through essentially her work experience, is a factor which should lead to the husband being given an extra percentage contribution or at all.
[14] Transcript, page 116, lines 40-45.
I have determined that the wife’s contributions have marginally exceed the husband’s and I assess the wife’s contributions at 55% and the husband at 45%. I should add that if the top up payments made by the wife’s parents had been included in this pool of assets (the $69,000.00 repaid by the wife to her parents) the value of the wife’s contributions would in my view increase to a figure to represent this inclusion, resulting in an uplift of no less than an 8% rather than 5% in her favour, bringing the division to 58% to the wife and 42% to the husband.

Section 75(2) adjustments.

As to the ages of the parties, the wife is a little older than the husband. The husband is aged 36 at the trial and the wife is aged 38. Each has a new partner or spouse and each has a young child.
In terms of capacity to earn in income, I am satisfied that that the wife has a slightly superior income earning capacity to the husband. She is now being recognised through her experience as a fully qualified [occupation omitted] and gave evidence that having started as an [omitted], she eventually got to work with [omitted] and that progressively, she has been acknowledged as an [omitted]. This is quite different to the position when the wife first arrived in Australia. It cannot be said that the marriage had an impact on the wife’s ability to earn an income essentially through the relationship. It was through the wife’s own hard work that her qualifications were recognised.
I note also that the submission is made on behalf of the husband that the wife cannot say that the marriage affected her ability to earn an income because by the end of the marriage she was regarded as a fully qualified [omitted]. The husband goes further than this and says that she improved her qualifications because of the support provided by the husband and it seems to be suggested that the husband should be given some adjustment for this support. Mr Priestly of Counsel stated when comparing the wife working at the [omitted] (she having qualified in Europe and it was not recognised in Australia when she first arrived) as being similar to “a police officer’s wife who trails around behind the police officer.”[15] Mr Priestly submitted “There’s some credit goes to the husband in facilitating the wife’s ability to do that.” I do not accept that the husband facilitated the wife’s ability to improve her qualifications. This is not a case where the husband has supported the wife through years of university or other study. The wife has actually gone out and sought and obtained work in her field and through her diligence and years of experience working (whilst bringing in an income) has finally been accepted for her pre-existing skills. Through her experience in working, the wife has been ultimately accepted as an [omitted] by those around her and now her gross income is around $90,000.00 when she is working full time, which she is not at the time of trial. I regard the husband’s view that she did this thanks to his financial support as being without foundation.
[15] Transcript, page 117, line 15-25.
The husband left school at grade 10 and is a self-made man in terms of his [omitted] though he obviously has qualifications through experience. He admits he is quite hopeless with business figures and financial management. He has had a server sitting in America paying $90.00 a month for years which does not bring him in any money. His skills however managed to generate income for the parties during most of the relationship, as did the wife’s. The husband is working on new ideas at the time of trial. Overall, I consider that the wife is slightly ahead of the husband in terms of income earning capacity given her qualifications and current standing as an [omitted].
In the short term however, the wife is desirous of staying home for a period of time to be a full-time mother to her young child [X] born on [omitted] 2013. At the time of trial the wife had stopped working, she had saved some funds from working and was hoping to remain out of the paid workforce for a couple of years. She says she will return to work either on a part-time or full-time basis, depending on her financial position. The wife is being assisted in her day to day financial circumstances by her de facto husband.
The wife is very driven to reduce debts and is a good money manager. The wife’s financial statement shows an income of $2,100.00 each week with tax of $600.00, so a net income of $1,500.00 per week. Whilst that is much higher than the husband’s current income, the wife’s income dropped to around $45,000.00 which is due to her child rearing responsibilities. At present she is not working at all.
The wife is in a de facto relationship. I have had regard to the financial circumstances surrounding cohabitation. Mr B is earning around $60,000.00. He has assets and debts acquired prior to the commencement of his relationship with the wife. They are in a de facto relationship, albeit they have a child together. Mr B is helping to support the wife in this matter and their child.
Similarly, the husband is in a de facto relationship with his partner

Ms A. They have a child [Y] born [in] 2011. He says his partner earns nothing outside of the home and that she is looking after their two year child old full time. Whilst she may work at some point in the future, this is certainly not happening at the time of trial.
Overall, the husband is not in a particularly strong financial position at the time of trial noting his wife earns nothing and he has a child to support as well as his wife. The husband is on a Newstart allowance or similar and is hoping to develop a new business.
The husband does not in my view have quite the same income earning capacity as the wife nor the same qualifications. The parties have been in conflict on this issue of the husband’s future earnings, and issues to do with a back injury. In the latest company returns that were available, the taxable income was around $35,000.00 to $45,000.00. This was after the husband had paid himself a wage of approximately $20,000.00, which means there was potential for the husband to be earning around $55,000.00 to $65,000.00. This is doing a calculation the best I can on the material before me.
The husband’s back injury is something that it seems he has had for many, many years. He says he had an injury from a car accident in 2004 and that he has a bulging disc. As I said, that may be so however I am not prepared to conclude that that is going to impede his ability to work. He seemed quite excited at the trial about the fact that his ideas for another business were being accepted by Centrelink.
The nine year old injury has not prevented the husband from continuing with his hobby of [sport omitted], albeit he says he has [omitted] only three times since separation. The husband says it is his favourite pastime and no doubt there are a number of reasons why he has not [omitted] as much recently which could include the arrival of his new baby and parenting responsibilities. The alleged injury has not prevented him from [omitted]. At a time when he was obviously getting on with the wife he sent her an email on Saturday 25 December 2010 entitled “Hello and merry Christmas.” The husband states that he was going to go [sport omitted] with [name omitted] “and hopefully I will be able to [omitted] straight back into the house.” This is not really the image or conduct of someone with a disabling back injury. I have no evidence of it impeding his ability or capacity to earn an income. I consider this issue was over stated by the husband.
There is evidence that the husband went to see a counsellor towards the end of the marriage and that he was stressed. I do not have any evidence that the husband’s psychological condition is likely to affect his future capacity to earn an income. I do not consider that stress is going to having a long lasting impact on the husband’s ability to earn an income. I had the impression that the husband sought to overplay this issue and his alleged back injury in an endeavour to receive an increase in percentage uplift when considering the s.75(2) factors. I do not accept that the husband’s alleged back injury and depression warrant an uplift factor of 5% as submitted. I reject that submission as there is no evidence to satisfy me that either the back injury or the alleged depression are conditions that would have any effect on the husband’s income earning capacity at the time of trial or in the future.
The husband seeks orders for a division of 65% in his favour. The husband at the time of trial had claimed Centrelink benefits on a disability for a period but did not like the idea of being on disability and gave evidence that he opted out of that and went onto the other kind of benefit which is similar to Newstart, but which enables a person to develop a new business. The husband is hopeful of establishing a new business with this assistance.
I consider that the s.75(2) factors slightly favour the husband in that his earning capacity is slightly lower than the wife. He has an obligation to support a child and the circumstances of his cohabitation are not as financially solid as the wife’s. Post separation the husband has been, living in his wife’s parents’ home in Canada and now lives in his father’s home. I intend to allow an uplift of 5% in favour of the husband.
I have already determined that the contributions assessment is 55% in favour of the wife and 45% in favour of the husband. Adding this 5% uplift to the husband to the findings in relation to contributions brings the division to 50% to the husband and 50% to the wife.
It became clear to the wife during closing submissions that she is not really in a position to service the current mortgage, maintain the house and borrow further funds to pay out the husband.
I had a strong impression that the wife was trying to retain the house by engineering her claim on the basis that she was to retain the proceeds of sale from her unit and almost every other asset apart from 50% of the former matrimonial home. I had to correct the wife on more than one occasion when she made the submission that she had always just been asking for 50%. This was entirely misleading. The wife was asking to pay out the husband 50% of the home after retaining almost everything else and having most of her retained assets taken out of the property pool or quarantined for her sole retention. Needless to say the wife’s approach is fundamentally and legally flawed.
In examining the overall contributions of each of the party’s and the length of their marriage, together with their relevant s 75 (2) factors, I am satisfied that this division represents a just and equitable division of the assets in the asset pool.
I am also satisfied, noting the High Court’s comments in Stanford & Stanford, that it is appropriate for the Court to make an order altering the current legal standing of the assets of the parties. The parties’ have been married for some 12 years; have asked that the Court do so.
I intend to make an order giving the wife the opportunity to pay out the husband. Noting the date that this judgment is being delivered, I will permit the wife to have until 7 February 2014. Having given her that opportunity and suggestion in September to make the necessary inquiries, I do not intend to give the wife a lengthy period to try and organise finance, as essentially her time started running at the final submissions. Following that opportunity, the property is to be listed for sale forthwith.
On the asset pool as determined by me based on the parties’ own submissions neither party suggested a superannuation split as the parties’ funds are almost equal in value. I note that the orders provide for the wife to retain the value of the [B] proceeds which in reality may never materialise and I regard this as offsetting the small discrepancy in their superannuation funds together with the fact that the wife will, if she remains living in the former matrimonial home continue to be responsible for the mortgage, rates and day to day maintenance of the matrimonial home in the short term. I intend to make an order that the parties divide the contents of the former matrimonial home equally noting that the wife has indicated that she is content for the husband to have the piano.
I have also decided to adopt the orders proposed by the husband in that the wife should retain the [B] investment, if possible, the proceeds of sale of the [B] unit and notionally, the add back consisting of the funds withdrawn by the wife at separation. The division of 50/50 should accommodate the wife’s retention of these assets, whether or not she is able to pay out the husband in cash or the house is sold.

I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of Judge Willis

Associate:

Date: 23 December 2013

[2013] FCCA 1758

23 December 2013

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