Dalby and Dalby
[2017] FCCA 3389
•7 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DALBY & DALBY | [2017] FCCA 3389 |
| Catchwords: FAMILY LAW – Property orders. |
| Legislation: Family Law Act 1975 (Cth) |
| Bevan v Bevan [2013] FamCAFC 116 In the Marriage of Clauson (1995) FLC 92-595 In the Marriage of Ferraro [1992] FamCA 64 In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626 Kennon v Kennon [1997] FamCA 27 Lynam v Director-General of Social Security (1983) 52 ALR 128 Sha & Cham [2017] FamCAFC 161 Stanford v Stanford [2012] HCA 52 Whinton & Whinton (2014) FamCA 102 |
| Applicant: | MR DALBY |
| Respondent: | MS DALBY |
| File Number: | NCC 1314 of 2014 |
| Judgment of: | Judge Myers |
| Hearing dates: | 4–5 July 2016, 21–24 November 2016, 5–7 July 2017, 14–17 August 2017 |
| Date of Last Submission: | 17 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 7 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bateman |
| Solicitors for the Applicant: | Mr Fryatt |
| Counsel for the Respondent: | Mr Sundstorm |
| Solicitors for the Respondent: | Ms Clarke |
ORDERS
Within 28 days from the making of these orders, the Respondent wife (“the wife”) do all acts and things and sign all documents necessary to transfer to the Applicant husband (“the husband”) all of her right, title and interest in the property situated at and known as Property A, delivering vacant possession to the husband.
Simultaneous with compliance with order 1, above, the husband pay to the wife the sums of $89,714.36 and $3,262.24.
Simultaneous with compliance with orders 1 and 2, above, the wife will do all acts and things as to refinance the (omitted) Bank Investment Loan and the (omitted) Bank Home Loan listed as items 24 and 26 within the joint balance sheet, forming Exhibit “R” in the proceedings, so as to release the husband as borrower or guarantor in respect of such loans and to release from such loans security over the said property at Property A.
The husband transfer to the wife his interest in the 122 (omitted) shares held in their joint names.
Within 7 days from the making of these orders, the wife make available for collection by the husband’s nominee (excluding his children) the following items:
(a)The husband’s passport;
(b)One ladder;
(c)One set of car ramps;
(d)One old record player and one old set of scales;
(e)One tent and camping gear;
(f)Two boxes of photos and one pile of old books;
(g)Two crockery bowls, 2 crockery plates and 2 pottery pots;
(h)One old mantel clock;
(i)One little rocking horse;
(j)Two broken shovels;
(k)One bag of adult movies belonging to the husband;
(l)Two work benches, with one vice attached; and
(m)A 2-door cupboard in the garage at Property A and the contents contained, therein.
Within 14 days from the making of these orders, the wife shall request from her son or any third party, the return of any items of furniture of furnishings she has loaned or provided to be held on trust for her.
Within 35 days from the making of these orders, the parties each attend at the other’s individual residence. While at each residence, the parties shall toss a coin, with the husband to call the toss at the wife’s residence and the wife at the husband’s residence. The winner of the toss shall, thereafter, select an item of furniture and the other party shall then select an item of furniture. The parties will, thereafter, take turns selecting individual items of furniture and furnishings. The parties shall place stickers in a designated colour on the items they have selected, until such time as all of the furniture and furnishings at each party’s residence have been divided between them.
The parties will, thereafter, remove those items they have selected, pursuant to order 7, above into their possession, away from the other party’s residence.
Pending compliance with orders 7 and 8, above, each party shall be prohibited by injunction from destroying, parting with, giving away or selling any items of furniture or furnishing in their possession as at the date of these orders.
Otherwise as provided for in these orders, each party be declared to be the sole beneficial owner to the exclusion of the other party, of any real property, funds in bank accounts, superannuation, motor vehicles, shares in public or private companies, businesses, tools and the like that stands in that party’s name or in that party’s possession as at the date of these orders.
If either party refuses or neglects to sign (within 14 days of a written request to do so) any document necessary to give effect to the terms of these orders, the Registrar of the Newcastle Registry of the Federal Circuit Court of Australia is hereby appointed, pursuant to the provisions of the Family Law Act 1975 (Cth), to execute such documents on behalf of such party.
IT IS NOTED that publication of this judgment under the pseudonym Dalby & Dalby is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
NCC 1314 of 2014
| MR DALBY |
Applicant
And
| MS DALBY |
Respondent
REASONS FOR JUDGMENT
EX TEMPORE
This is a final property decision in respect of proceedings between the applicant husband, Mr Dalby, and the respondent wife, Ms V. The applicant husband seeks orders as set out in the husband’s minute of order, filed 1 July 2016, that provide:
1. The respondent wife forthwith must do all acts necessary to transfer to the respondent husband all of the right, title and interest in the property known as and situated at Property A in the State of New South Wales, hereinafter referred to as, “Property A”, being the whole of the land and comprised in folio identifier (omitted) free of encumbrance.
2. The respondent wife must discharge any encumbrance on the title of Property A prior to the transfer of interest to the applicant husband prior to order 1. The respondent wife must vacate Property A and leave it in a good condition within 28 days of the date of these orders.
3. Within 28 days, the respondent wife must do all acts necessary to effect a delivery to the applicant husband by leaving for his use and collection at Property A the following items of personalty and ensure that item is in good condition, having regard to its age:
a) all of the applicant husband’s clothing in her possession, including dress and work clothes, ties, shoes, boots, shirts, pants, shorts, suits, coats, jumpers and the husband’s black wedding suit that he wore at the party’s wedding;
b) the applicant husband’s passport and legal papers; the applicant husband’s personal papers and business papers, including any tax returns, wages and superannuation documentation;
c) photographs of the applicant husband and/or his family which were in the albums located in the home;
d) videos of the applicant husband or his family which were located in the home; the applicant husband’s gold-face watch with gold hands and gold band;
e) the applicant husband’s square-shaped onyx dress ring with a roll of diamonds on one side of the gold band;
f) the applicant husband’s toiletries – aftershave, medical creams, tablets and travel packs;
g) the applicant husband’s work tools located in the shed on the property at Property A, including a brand new circular saw, drill, saws, jackhammers, ladders, long electrical leads, workbenches, car products, car ramps, car polish and oil;
h) the applicant husband’s camping equipment, including tin and stove; all of the husband’s gardening equipment, including lawnmower, whipper snipper, blower, electric hedger, higher pressure cleaner;
i) all of the applicant husband’s gardening books and car maintenance books; the applicant husband’s two old record players with records;
j) the applicant husband’s old set of scales;
k) the applicant husband’s gas patio heater; the applicant husband’s old antique clock that belonged to his grandfather;
l) the applicant husband’s two-door cupboard full of trophies and memorabilia;
m) the applicant husband’s bar fridge; the applicant husband’s barbecue;
n) the applicant husband’s antique poker machine; and
o) any other items of personalty of the applicant husband that were at Property A as at 28 April 2013.
4. The wife thereafter prepared two lists of furniture, furnishings and chattels held in the former matrimonial home as at the date of separation, being approximately equal in value, and provided this list to the husband and husband at liberty to choose one of those lists of furniture and upon advising the wife of the list of furniture that he wishes to retain, the wife do all acts and things necessary, including the exclusion of all documents necessary, to transfer to and deliver to the husband all of the right, title and interest in each of those items of furniture and the husband to do all acts and things necessary to transfer to the wife all of his right, title and interest in the balance of the items of furniture on the other list.
5. The respondent wife pay to the applicant husband within 28 days of the date of these orders the sum of $100,000. Each party must do all acts and things and sign all documents necessary to give effect to these orders. That in the event either party refuses or neglects to sign any document necessary to give effect to these orders within 14 days of a written request to do so from the other party, then the registrar or nominee of the Family Law Court Registry in Newcastle is hereby appointed to sign any document necessary to give effect to these orders in place of the defaulting party pursuant to the provisions of section 106A of the Family Law Act. The respondent wife pay the applicant husband’s costs of, and incidental to, these proceedings.
The Respondent wife seeks orders in accordance with a Minute of Order filed on 30 June 2016, being Annexure “A” to the wife’s outline of case document. The wife seeks the following orders in that document:
1. That within 35 days of the date of these orders, the husband do all acts and things, and execute all documents, instruments and writing necessary to transfer to the wife all of the parties’ right, title and interest in the real property known as and situated at Property A in the State of New South Wales, being the holder of the land more particularly described in certificate of title folio identifier (omitted) (the Property A property).
2. That the wife be declared to be the sole beneficial owner of and entitled to the real property known as and situated at Property B in the State of New South Wales, being the whole of the land more particularly described as certificate of title folio identifier (omitted), the Property B property. That the wife thereafter indemnify the husband against any liability for outgoings in respects of the Property B property and any liability in respect of the mortgage or charge thereon.
3. Simultaneous with compliance with order 1, the wife shall pay to the husband the sum of $260,000.
4. That within seven days of the date of these orders, the wife make available for collection by the husband’s nominees, excluding his children, the following items: the husband’s passport; one ladder; one set of car ramps; one old record player and one old set of scales; camping gear; two boxes of photos and one pile of old books, two crockery bowls, two crockery plates and two pottery pots; the old mantle clock; one little rocking horse; two broken shovels; one bag of adult movies belonging to the husband; workbenches times two, one with a vice; a two-door cupboard at the garage of Property A and the contents therein.
5. As between the parties and except otherwise as provided for in these orders, the husband be declared to be the sole beneficial owner and solely entitled to all other items of personalty presently in their possession, custody or control of each of them, including, but not limited to, the motor vehicles, furniture, furnishings, jewellery and shares, money, standing of the credit of the parties, any bank building society or credit union account to be the property of the parties in whose name such a bank account is held.
6. Each party hereby forgoes any claim they may have to any superannuation benefits owned by the other. The party in whose name any policy of superannuation insurance stands shall deemed to be the owner of the sole beneficiary of such policy to the exclusion of the other. Each party be solely liable for and indemnify the other against any liability encumbering any item of property. That party is entitled to pursuant to this order.
7. That if either party refuses or neglects to sign within 14 days of a written request to do so, any documents necessary to give effect to these orders, a registrar of the Newcastle Registry of the Family Court of Australia is appointed pursuant to the provisions of the Family Law Act to execute such documents on behalf of such party. That the husband pay the wife’s costs and incidentals to these.
The Court has read and considered the following documents filed on behalf of the husband, namely:
a)affidavits of the husband, filed 6 June 2016 and 6 November 2016:
b)a financial statement filed by the husband, 30 May 2016;
c)affidavit of Mr E, filed 6 June 2016;
d)affidavit of Mr G, filed 6 June 2016;
e)affidavit of Mr N, filed 6 June 2016;
f)affidavit of Mr P, filed 6 June 2016;
g)outline of case filed 1 July 2016.
The Court has read and considered the following documents filed on behalf of the wife, namely:
a)amended response, filed 30 May 2016;
b)affidavit of the wife, filed 3 June 2016, and exhibits found in the two-ring binder folders to that affidavit;
c)further amended financial statements to the wife, filed 3 June 2016;
d)affidavit of Ms G, filed 3 June 2016;
e)affidavit of Mr T, filed 3 June 2016;
f)affidavit of Mr A, filed 3 June 2016;
g)outline of case document, filed 30 June 2016.
The Court has read and considered the documents tendered during the proceedings forming exhibits A through to AA.
By way of background, the husband was born on (omitted) 1951 and the wife was born on (omitted) 1952. The parties have no children of the relationship. The husband had two adult children of an earlier relationship, Mr N and Mr S. The wife has two adult children of an earlier relationship, Mr T and Mr M. The date of commencement of the parties’ relationship is controversial.
The husband suggests he first met the wife in 2004. The wife suggests the parties began dating on (omitted) 2004. The husband gives evidence of the parties’ relationship beginning as a friendship, with the parties spending time together on weekends dancing. It was not controversial that in 2004 the wife was living in a property registered in her name at Property B, and the husband was living in a property registered in his name at Property C.
What is also not controversial is at that time the wife was self-employed as a (occupation omitted) and the husband worked as a (occupation omitted) for (employer omitted) and thereafter changed his employment to that of a (occupation omitted).
The husband suggests that in late 2005 he considered the parties were in an exclusive boyfriend-girlfriend type relationship and he began to stay over at the wife’s home one night per week and, on occasion, two nights per week.
The husband further suggests at paragraph 9 of his affidavit, filed 6 June 2016, that at no time did the wife ever sleep around at his home at Property C. By contrast, the wife suggests at paragraph 13 of her affidavit that she began sleeping at Property C one or two nights a week. A substantial proportion of cross‑examination was devoted to the state of Property C.
The wife gives evidence at paragraph 13 of her affidavit that so bad was the condition of Property C that the husband warned her before she first saw the home, saying words to the effect, “You’ll get a shock. It’s not as clean as your house.” If the wife’s evidence at paragraph 14 of the affidavit is accepted, the husband’s warning was a significant understatement as to the home’s condition. The wife suggests at paragraph 14 of her affidavit that the pool was green, there were holes in the walls, and all of the back yard was completely overgrown.
The wife went on to suggest there was dog faeces “everywhere”. There were old tyres laying around. The carpet was damaged. There were holes in the staircase. The mirror doors were broken. The garage was full of beer bottles and the deck was rotten. The wife gives evidence of Property C being sparsely furnished. At paragraph 15, of the wife’s affidavit she sets out located in the property was an old brown lounge suite, an old fridge, an old washing machine, a double bed in each of the boys’ rooms and a queen bed in the husband’s bedroom.
The wife’s physical description of the home and the home environment continues at paragraph 16 of her affidavit with the wife describing the husband’s son treating the husband with complete disrespect, where Mr N physically threatened the husband, saying to the husband, “Get down here” - in other words, downstairs – “or I’ll knock your fucking head off,” and, further, that Mr N and Mr S regularly referred to the husband as “a cunt”.
The wife gave further evidence of the state of the Property C property at paragraph 18 of her affidavit where the wife suggests she observed a big black skull and graffiti painted on the wall in Mr J’s bedroom; in Mr S’s bedroom, there were big holes in the wall; there was a fist hole in Mr S’s bedroom door as well as two other large holes in the bedroom walls; there was a big hole in the wall in the stairwell, about 30 centimetres in diameter and there was in the garage empty alcohol bottles and cans everywhere, even on the roof beams.
As for the cleanliness of the home, the wife suggests at paragraph 18 of her affidavit that throughout the home “you could feel grit under your feet. All you could smell was faeces. The bathrooms were filthy with dirt and mould”. The wife further suggested she refused to sit on the toilet seat because “it was just so bad”. Inconsistent with the wife’s earlier evidence at paragraph 13 where the wife suggested she stayed at Property C one or two nights a week, the wife states at paragraph 19 of her affidavit:
I didn’t sleep over at Property C very often. I recall on Tuesday night Mr Dalby and I usually went out for tea with Mr Dalby’s mother, Ms J, and then we slept over Property C. This suited me because I did not have to eat from Mr Dalby’s kitchen. On the occasion I slept over, I left early in the next morning and showered at home.
The wife goes on to state at paragraph 19:
I did not want to use Mr Dalby’s bathroom.
The wife states at paragraph 20 of her affidavit:
I say the condition of Mr Dalby’s property at Property C did not improve at all throughout the time we were dating and then living together until we renovated the property together.
The Court heard the wife’s cross‑examination in respect of the state of the property at Property C and observed the manner in which the wife gave her evidence. The Court did not find the wife a compelling witness and does not accept the wife would have been prepared to have stayed over at the husband’s property should it have been in the sort of physical state the wife described in her affidavit or where the husband was subjected to threats of abuse from his sons at the property.
The husband suggests that immediately before he met the wife the pool at Property C was well maintained; the walls did not have holes in them; the back of the home was tidy and clean; there were no debris or tyres on the property; the carpet was getting old, but not damaged; there were no holes in the staircase or broken mirror doors and the garage was in a tidy condition.
The husband described how he had created a tropical garden at the property and that at some stage a wedding or weddings had been held in the yard. Tendered during the proceedings forming Exhibit “G” was a valuation of Property C prepared as at 22 February 2005 for the purposes of property proceedings between the husband and his former partner, Ms L. The valuation noted the pool leaking and the pool pump was faulty.
The valuation suggests that:
The property was considered to be in fair to poor condition, requiring attention with damaged and rotten doorframes, holes on doors and internal lining, a damaged rear sliding door that no longer opened, evidence of water leaks in several places and poorly maintained decking timbers. The valuation went on to set out that the residence would also benefit from repainting. Additional items were noted, but these are considered the prime items. The other items, it would appear, have been the result of poor maintenance generally. It is apparent that little maintenance had been undertaken in recent times. The subject dwelling is a reasonably substantive home, but it has been let go and it is in need of some more significant repairs.
The husband gives unconvincing evidence of having completed what might best be described as small repair works to the property, making such a determination after having been shown the valuation during cross‑examination. The Court accepts the property was in far worse condition to that described by the husband and not as bad as that described by the wife.
The Court does not accept the wife stayed at the husband’s home. While the date of full-time cohabitation remained in issue where the husband suggested he did not reside with the wife until (omitted) of 2008 – at a time when he changed his drivers licence and address with (omitted) Bank and noted the wife’s address on his tax return – the husband gave undisputed evidence of the wife doing some painting work and gardening work at Property C earlier than 2008, although only for a couple of hours in total.
The wife gave significant evidence of having provided assistance to the husband in renovating Property C. The wife suggested she did what she described as “all of the painting work, both inside and out”, with her friend Ms L’s assistance, and that she “climbed the palm trees at the back and chopped all of the dead palm branches off and cleared all the vines”. The wife further suggested that she took 20 loads of rubbish in a trailer to the tip.
The Court heard the wife’s cross‑examination in respect of whether the wife could have accessed a vehicle with a tow bar to pull a trailer. The Court had reason to doubt the wife’s evidence about having taken a trailer to the tip given such evidence.
The wife gave further evidence of having assisted to pull up the downstairs carpet in the home; having washed and sealed floor tiles laid by the wife’s friend, Mr P; having repainted doorframes; having cleaned all the windows and light fittings and having helped the husband replaster holes in the walls.
The wife further suggested she re-grouted and re-sealed some of the bathrooms and cleaned and fixed the vertical blinds. The wife suggests she bought plants from a nursery and replanted them at Property C. The wife gave evidence at paragraph 41 of her affidavit of having purchased plants and hardware totalling $794.82. The wife set out at paragraph 42 of her affidavit that the renovation took almost two years to complete.
The husband denied the wife’s assertion that she paid for items as suggested. The wife suggests at paragraph 29 of her affidavit that she began full-time cohabitation with the husband in (omitted) 2006. The parties were some two years apart as to the date of cohabitation. The husband gave evidence at paragraph 78 of having had a surgical operation for cancer in (omitted) 2007, following which the husband stayed with the wife where she assisted him in his recovery for a period of two weeks.
The husband suggests he remained off work for approximately eight weeks and that during that period he received Centrelink payments. The husband gave additional evidence at paragraph 22 of his affidavit that he had been diagnosed with prostate cancer in 2007 and at the time of his diagnosis the wife said to him she wanted the parties to sell both their homes and purchase a home together.
The husband gave evidence that he agreed to the wife’s suggestions, but she later told him she would not let him move in to live with her until he had sold his home. Despite this evidence, the husband did move in, if only for a short period, during his convalescence following his cancer surgery. The Court notes that during the period the wife suggested the husband had cohabitated with her prior to (omitted) 2008 the wife had failed to disclose, as a provider of (employment omitted) that the husband had moved in to reside with her.
The Court heard and considered the significant evidence of the husband’s furniture being stored and then moved to the wife’s residence at Property B. Based on both the parties’ evidence, the parties were at its latest in some form of a relationship as at late 2005, with that relationship becoming what might be described as a bona fide domestic relationship, on the wife’s evidence, as early as (omitted) 2006 or, on the husband’s evidence, as late as (omitted) 2008. In the decision in Sha & Cham [2017] FamCAFC 161, the Full Court, then comprising Bryant CJ, and Ainslie-Wallace and Cronin JJ, stated:
In determining whether two people have a relationship as a couple living together on a genuine domestic basis the court is to have regard to all of the circumstances of their relationship, which may include the matters to which s 4AA refers. Whether such a relationship exists will depend on an assessment of all of the circumstances of the relationship, each circumstance to be given such weight as the court considers appropriate (see Sinclair & Whittaker [2013] FamCAFC 129; (2013) FLC 93-551 at [54]). It is not to be overlooked that each circumstance or element that makes up a relationship should be considered in the context all of the aspects of the particular relationship (Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131) (“Lynam”).
It was said in Lynam at 131:
Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
The Court considers those matters set out at section 4AA of the Family Law Act 1975 (Cth). The Court has considered both the parties’ evidence as to the relationship. The Court notes the dispute as to the date on which the parties shared a common residence. Having heard the parties’ evidence, it was clear the parties enjoyed a sexual relationship up to the time of the husband’s cancer surgery.
The Court notes the dispute with respect to degree of financial dependence and independence. The Court notes the ownership use and acquisition of property where the parties had maintained individual residence until the husband’s sale of Property C with the property being first offered to the market for sale in April of 2007. The Court considers the degree of commitment to a shared life. Such a commitment is evident having regard to the listing of the husband’s property for sale. This coincided with the period of time in which the husband lived with the wife following his cancer operation. The husband gave evidence of the wife suggesting he could not move in to live with her in early 2007.
Listing the husband’s property for sale could only have been done in the view of the Court where the parties had, at that stage, a commitment to a shared life. The Court heard evidence that the parties’ relationship was a public one, but little evidence on the topic was adduced such that the Court could give weight to the reputation and public aspects of that relationship. The Court, having made an assessment of all of the circumstances of the relationship, finds that the parties were in a bona fide domestic relationship as at April 2007.
As at April 2007, the home at Property C was on the market for sale. It was ultimately sold in December 2007 for 370,000 with settlement taking effect in January of 2008. The husband gives undisputed evidence that he received a net figure on the sale of $268,918.74. The Court notes that at that time the husband owned an amount of furniture. The husband gave evidence that as at January 2008, the husband owned:
a)a Ford (omitted) which the husband suggests it was worth $12,000;
b)a Toyota (omitted) which the husband suggests was worth $1000;
c)superannuation worth $161,241.88, as evidenced by Annexure “D” of the husband’s affidavit;
d)savings that totalled $1307, as evidenced by Annexure “D” of the husband’s affidavit;
e)a spa bath the suggested he had purchased for $7000.
At about the beginning of 2008, the husband suggests the wife owed her home at Property B, valued at $280,000. The Court notes this evidence was not disputed. There was a small mortgage on the property. The wife owned a Subaru motor vehicle and owned items of furniture as set out at paragraph of the wife’s affidavit. In addition, the wife had some amount of superannuation – her business – that the Court notes was never valued. The business was assigned a nil value on the joint balance sheet. The wife additionally owned an amount of furniture and furnishings.
Following the sale of Property C, the husband began paying moneys to the wife. The husband suggests it was some $500 every four weeks at paragraph 74 of his affidavit. Both parties continued in their employment. The wife gave evidence as contained in her affidavit at paragraphs 79 and 80 of having earned the greater income during the relationship from her employment.
Following the wife’s figures being challenged during cross-examination, the wife conceded that the figures she had placed on the income received in her (omitted) business were gross, as opposed to net figures, after taking in to account the costs of operating her business. In actual fact, it became apparent that the parties’ respective incomes were not dissimilar during the course of their relationship. The parties were both at great pains to tell the Court of the moneys they both expended on such things as holidays, wedding expenses and birthday parties.
The parties purchased a property at Property A, exchanging contracts on 19 August 2008. The purchase price was some $387,000 plus stamp duty of approximately $12,000. The wife conceded at paragraph 59 of her affidavit that the purchase was funded with the husband contributing $268,819 from the proceeds of sale he had received from Property C, and a further sum of $44,633.66 being moneys the husband withdrew from his (omitted) superannuation fund.
The wife suggested she borrow the sum of $94,084.19 against the Property B property and contributed the sum of $87,101 towards the purchase of Property A. The contribution made by both parties allowed them to complete the purchase of Property A unencumbered. The parties subsequently moved in to Property A, renting out Property B. The wife engaged a real estate agent to manage the Property B property.
In about October 2008, the wife gave evidence that she borrowed the sum of $15,000 to complete improvements to the Property A property. There is a dispute as to who paid for what towards the purchase of furniture and furnishings and other items for Property A. There is agreement that the husband paid approximately $1000 per month towards the mortgage secured over the Property B property.
The parties both sought, in a failed attempt, to account for every dollar spent by them during the relationship the wife making claims at paragraph 77 of her affidavit that:
As a percentage of our combined living expenses over a five-year period I have calculated that Mr Dalby’s $1000 a month covered 17.5 per cent. My financial contributions covered the remaining 83.5 per cent of our costs.
In support of her contention, the wife gave evidence at paragraph 76 of her having made calculations utilising records exhibited to her affidavit at pages 459 to 483. Having heard the wife’s cross-examination, the Court accepts that even a basic calculation of the wife’s earnings were incorrect. It is disappointing to the Court to observe parties put to considerable expense and effort going through what would have, no doubt, been a draining exercise for the purpose of giving evidence. Such an exercise carries little if any weight when making a property determination pursuant to section 79 of the Family Law Act.
In reality, both parties were working to the best of their capacity. They both earned similar amounts. Despite the dim view each has of the other when looking back over their marriage, the Court finds each party was working and contributing towards the costs of their household as best as they could. The husband gave this type of evidence at paragraph 77 of his affidavit of having undertaken landscaping and garden work at Property A. The wife denied the husband’s assertions about such work.
It is not controversial that the husband was diagnosed with what the husband described as “chronic myeloid leukaemia” in 2008. The husband gave undisputed evidence of his current medication costing him $210 per month. The Court notes the complete absence of any expert evidence that might go towards the effect the leukaemia has had on the husband’s function, the likely need for future medical intervention, including costs and future prognosis, nor was there any such evidence in respect of the wife’s health.
The parties married in 2010. The Court read and heard significant evidence as to who paid for the costs of the wedding. The husband suggests he did not know how much was paid for the wedding, but that the wife paid for most of it. The wife suggests the wedding costed $13,840.20.
The parties honeymooned in (country omitted) with the husband funding the trip with a personal loan. The husband surprised the wife with a trip to (country omitted) for her 60th birthday. The wife surprised the husband with a trip to (country omitted) for his 60th birthday.
Both parties allege family violence perpetrated by the other with only the husband asking that such alleged family violence be taken into account by the Court having regard to the decision in Kennon & Kennon (1997) FLC 92-757. In Kennon at page 84,294 Fogarty and Lindenmayer JJ discussed the effect of violent conduct in an assessment of the parties contributions and held:
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put another way, to have made his or her contributions more arduous than they ought to have been, that is a fact which a trial judge is entitled to take in to account in assessing the parties’ respective contributions within section 79. We prefer this approach to the concept of “negative contribution” which is sometimes referred to in this discussion.
The husband gave evidence that the wife was violent towards him on five occasions. The husband suggested that the wife controlled him, humiliated and embarrassed him. The husband suggested this affected him socially. It did not affect his employment. It did not affect his ability to earn an income or contribute towards the expenses of a household.
The husband’s evidence, if it were accepted by the Court, suggests he was exposed to family violence within the meaning of family violence contained in the Family Law Act. The husband’s evidence that it affected him socially but did not affect his ability to earn an income or contribute towards the expenses of the household is such that the Court is not able to find that the wife’s alleged conduct made the husband’s contributions more arduous than they ought to have been. And any argument made by the husband, taking in to account the decision in Kennon, must, accordingly, fail.
Both parties alleged violence perpetrated by the other. The husband was, in fact, charged with an assault and an ADVO applied for against the husband for the protection of the wife. The charge and ADVO application were defended by the husband and dismissed. The evidence before the Court in respect of the allegations of violence by both parties does not lend itself to the Court making a finding that one or of the other parties perpetrated violence upon the other. The Court does, however, accept that for a significant period of the parties’ relationship it was not a good one.
These proceedings are governed pursuant to section 79 of the Family Law Act 1975 and generally Part VIII of the Family Law Act 1975. In the case of Stanford v Stanford [2012] HCA 52 the High Court at paragraphs 78 and 79 considered the matter in which Courts should approach and determine property proceedings and held:
It is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying according to the ordinary common law and equitable principles the existing legal and equitable interests of the parties in the property.
The Court has historically determined property proceedings in accordance with its well-established principles set out in Hickey & Hickey [2003] FamCA 395 at 143 embarking on a four-step process. The first step requires the Court to identify and value assets, liabilities and financial resources of the parties at the time of the hearing. The second requires the Court to consider the parties’ contributions and consider any adjustment that be made between the parties. The third step requires the Court to consider that actual circumstances of the parties and to make adjustment for those circumstances considering a variety of factors set out at section 75(2) of the Family Law Act. The last step, step 4, requires the Court to satisfy itself as to the actual effect of the orders being just and equitable.
In the decision in Bevan v Bevan [2013] FamCAFC 116, the Full Court considered the decision in Stanford and any implications of that decision when looking at the four-step process or approach taken by the Courts. Bryant CJ and Thackray J held:
Prior to Stanford, property applications were commonly dealt with by reference to what the trial Judge called “a four stage process”. This process was described at [31] and [32] of his Honour’s reasons. The jurisprudential basis for the process was well established – see the line of cases cited in Hickey & Hickey [2003] FamCA 395; (2003) FLC 93-143 at [39].
The four stage (or step) process involves:
- identification and valuation of the property of the parties;
- identification and evaluation of contributions to the property (including property no longer owned by the parties);
- identification and assessment of the various matters in s 79(4)(d) to (g) including, to the extent they are relevant, the matters in s 75(2);
- consideration of matters of justice and equity.
Although the four step process has been regularly applied, the Full Court has stressed it is no more than a means to an end, since the statutory obligation is to alter existing interests only if it is just and equitable to do so. Thus, in Norman & Norman [2010] FamCAFC 66 at [60], the Full Court (Finn, May and Murphy JJ) said:
It is the mandatory legislative imperative (to reach a conclusion that is just and equitable) that drives the ultimate result. For all its usefulness and merit as a “disciplined approach” or a “structured process of reasoning” (per Fogarty, Lindenmayer, McCall JJ, N and N, unreported, 10 June 1992), the “three-step” or “four-step” approach merely illuminates the path to the ultimate result.
To like effect, in discussing the four step approach in our joint judgment in Martin & Newton [2011] FamCAFC 233; (2011) FLC 93-490, we said (original emphasis):
... that approach is not legislatively mandated, and as the Full Court [in Hickey] said, is simply the preferred approach. This is because it will be sufficient, in most cases, to have regard to the overall justice and equity of the orders after determination of the asset pool, consideration of contributions and assessment of the relevant s 75(2) matters.
But in our view, there is no requirement that the justice and equity of the order, as prescribed by s 79(2), must only be considered at the fourth (and last) stage. In our view, the requirement to make an order that is just and equitable permeates the entire decision making process, and it is not impermissible to consider it at an earlier point if the particular case requires it. We consider this is such a case.
What is clear from the case law is that the four-step approach, whilst not legislatively mandated, continues to be adopted by Courts when determining applications under section 79 of the Family Law Act for a judgment of property interests as it is a means by which the Court is able to illuminate a path forwards to resolve a pathway towards a result that is just and equitable. This approach is well established in authorities. In that regard see, In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626, In the Marriage of Ferraro [1992] FamCA 64, In the Marriage of Clauson (1995) FLC 92-595, and in the case of Whinton & Whinton (2014) FamCA 102 where Johnston J stated:
In our view it will be less likely that a separate issue arises under section 79(2) and will be conflated if judges refrain from evaluating contributions and other relevant factors in percentage of monetary terms until such time as they have first determined that it would be just and equitable to make an order.
This is a case where the assets of the parties are not divided evenly between them. The Court takes the view that in this case the Court ought for to make a finding as to whether it is just and equitable to make an order property adjustment when identifying the existing legal and equitable interests of the parties.
In Stanford the High Court suggested that:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife.
The Court suggests this is one of those cases. The Court finds that it is just and equitable to make a property settlement order adjusting the parties’ property interests.
During the hearing the Court will sometimes utilise the evidence of experts, such as valuers, agreements between parties, or the making and findings upon evidence presented, or identified to value the parties’ property, liabilities and financial resources.
Having regard to that document tendered during the proceedings, forming Exhibit “R”, in the proceedings being a joint balance sheet, the Court makes the following findings in respect of property assets and liabilities.
| Ownership | Description | Value |
| ASSETS | ||
| Joint | Property A | $510,000 |
| Wife | Property B | $340,000 |
| Husband | (omitted) shares, 879 shares at $4.92 | $4,887 |
| Joint | (omitted) shares, 122 shares at $4.92 | $602.24 |
| Husband | (omitted) policy | $8669.88 |
| Husband | Savings, (omitted) | $530 |
| Husband | (omitted) Ford | $800 |
| Husband | Kia (omitted) | $10,000 |
| Husband | Tools | $50 |
| Wife | (omitted) Bank account | $539.03 |
| Wife | (omitted) (First Account) | $2980.48 |
| Wife | (omitted) (Second Account) | $2233.67 |
| Wife | (omitted) shares | $2085 |
| Wife | (omitted) shares | $932 |
| Joint | Household contents of the parties | Not known |
| Wife | Jewellery, based on admission against interest | $2412 |
The Court notes the following add backs:
a)wife’s proceeds of sale of vehicle $800.
There was insufficient evidence as to any add backs for the husband to make a finding on the topic.
| LIABILITIES | ||
| Husband | (omitted) Visa card | $340 |
| Wife | (omitted) Bank mortgage | $89,714.36 |
| Wife | (omitted) Bank home loan | $10,353.45 |
| Wife | (omitted) Visa card | $815.78 |
| SUPERANNUATION | ||
| Husband | (omitted) accumulated super | $106,000 |
| Wife | (omitted) superannuation accumulated interest | $22,488 |
The Court considers the financial contributions made by the parties, namely:
a)equity in the parties’ real property owned by them at commencement;
b)the husband’s superannuation;
c)the wife’s superannuation;
d)the two motor vehicles owned by the husband, the motor vehicle owned by the wife;
e)the interests in the wife’s business and the parties’ savings; and
f)furniture and furnishings.
While it is hard to place an absolute exact figure on the husband’s initial contributions and that of the wife, the Court accepts that the husband’s initial contribution was some $200,000 greater than that of the wife’s initial contribution.
The Court considers the parties worked to the best of their capacity during the course of their relationship with both parties contributing their not dissimilar earnings to the household.
Having regard to those contributions of the type referred to at section 79(4)(b), being what might be best described as non-financial contributions to the acquisition, conservation, or improvement of the parties’ property, the Court notes the significant evidence given by both parties as to the renovation, landscaping and improvement works carried out by the parties, both prior to and during the parties’ marriage.
Neither of the parties were prepared to make any great concessions about the work the other carried out. So strong was their strident opposition to propositions put to the parties about such work during cross-examination that the Court was left in a position unable to make an adjustment based on this consideration. The Court has read and considered the evidence in relation to the parties’ contributions to the welfare of the family constituted by the parties and notes there are no children of the relationship. This is a case where neither of the parties’ children resided with them during the relationship.
Again, the parties were unwilling to make any concessions during cross-examination as to the parties’ contributions to the family welfare. The Court does, however, accept that that husband’s cancer and leukaemia diagnosis, as well as subsequent treatment, would have necessitated the wife taking on a significant role as carer for the husband, if only for a short period.
The court considers the effect of the proposed orders upon the earning capacity of the parties. Ordinarily, where parties during property proceedings work in employment, earning a pay-as-you-go type wage, this consideration is accorded little weight. In this matter however, the wife’s employment is one of operating a (omitted) business that links her earning capacity to her residence. The wife had sought to retain both the Property A property from which she operates her (omitted) business and also keep Property B, that the wife had owned prior to the parties’ relationship.
The husband sought to retain the Property A property during the hearing of the matter. A position was adopted by the wife in the proceedings that it would not be feasible for her to return to live at Property B and run the (omitted) business from that home. The wife did ultimately concede towards the end part of the hearing that it would be practical to operate the (omitted) business from Property B. The Court accepted this concession as a reasonable one, especially in circumstances where the wife operated her business from Property B prior to the purchase of Property A.
The Court does, however, accept that moving the wife’s (omitted) business from Property A to Property B would cause her some business disruption and negative effect, if only for a temporary period, and resulted in some reduction in earnings. Having taken in to account those matters set out at section 79(4)(a), (b), (c) and (d), the Court allows for these considerations and finds an adjustment as to 58 per cent to the husband and 42 per cent to the wife.
The Court considers those matters set out at section 75(2) of the Family Law Act. The Court notes the husband was born in 1951 and the wife was born in 1952. They are less than 12 months apart in age. Neither party enjoys perfect health. The Court notes the husband health as being inferior to that of the wife’s health. It is difficult to gauge the impact of the husband’s chronic myeloid leukaemia diagnosis in the absence of expert evidence. Similarly there is an absence of expert evidence in respect of the wife’s health. To that end the Court cannot ascribe any significant adjustment on the basis of health.
The parties have similar earnings. Neither party has a financial resource other than the property of the parties that the Court has found in these proceedings. There were no suggestions during the proceedings of the parties lacking the physical or mental capacity for appropriate gainful employment. Neither party has the care and control of a child of the relationship and the Court is cognisant of the commitments of the parties to maintain themselves. There was no evidence of the parties having a commitment to support a child or other person.
The Court is not aware of either party being eligible for a pension, allowance or benefit under any state, territory or Commonwealth law or under any superannuation fund or scheme. The Court considers any adjustment of property between the parties that is just and equitable will afford the parties a standard of living that in all the circumstances will be reasonable.
The Court considers the duration of the marriage has not affected the earning capacity of the parties. There was no evidence of either party cohabiting with another person. The Court does not consider there are facts or circumstances that the justice of the case required be taken in to account. There is no evidence of the parties being bound by the terms of a financial agreement, nor are there any Part VIIIAB financial agreements that are binding upon the parties.
Taking into account these considerations, as set out at section 75(2), the Court finds an adjustment as to 52 per cent to the husband and 48 per cent to the wife. The Court finds an overall adjustment as to 60 per cent to the husband and 40 per cent to the wife.
The Court considers the provisions at section 79(2) where the Court shall not make an order under section 79 unless it is satisfied that in all the circumstances it is just and equitable to make the order.
The Court notes both parties entered into a relationship owning a residence each. The husband sold his residence and contributed to the majority of the purchase price of Property A. The Court considers it would not be just and equitable for the wife to receive both Property A and Property B. Rather, it would be just and equitable that the parties retain one residence each; the wife Property B and the husband Property A.
The Court further considers it would be just and equitable to allow a reasonable period in which the wife might make arrangements to move from Property A to Property B and re-establish her business at that property. The Court considers a period of 12 weeks in which to do so would be just and equitable.
There are no matters the justice of the proceedings otherwise require the Court to consider. The Court notes the requirements of section 81 of the Family Law Act to as far is as practical, make such orders as will finally determine the financial relationship of the parties. The parties were in significant disagreement as to how to divide the furniture and furnishings between the parties. The Court notes the wife had caused to be provided some items of furniture and furnishing to her son on some form of loan basis. The Court will make orders for the recovery of those items. The Court will make orders that divide the furniture and furnishings on a turn-about selection basis.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Myers
Date: 15 March 2018
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