DEAKINS & REMUS

[2021] FCCA 156

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEAKINS & REMUS [2021] FCCA 156

Catchwords:
FAMILY LAW – Property – self-represented husband seeking adjournment at commencement of trial – husband’s repeated failure to participate in proceeding – adjournment clearly not appropriate – matter proceeding undefended – consideration of contributions and future needs – 63/37 division of non-superannuation assets in favour of the wife and equalisation of superannuation just and equitable.

Legislation:

Family Law Act 1975 (Cth), ss.75(2), 90XT(1)(a), 106A

Cases cited:

Sexton & Sexton [2012] FamCAFC 218

Stanford & Stanford (2012) 247 CLR 108

Applicant: MS DEAKINS

Respondent: MR REMUS

File Number: DGC 70 of 2020

Judgment of: Judge Burchardt

Hearing date: 18 January 2021

Date of Last Submission: 18 January 2021

Delivered at: Dandenong

Delivered on: 5 February 2021

REPRESENTATION

Counsel for the Applicant: Mr Tesoriero

Solicitors for the Applicant: Malkin Lawyers

Counsel for the Respondent: Self-Represented

Solicitors for the Respondent: Not Applicable

ORDERS

1. The Applicant and Respondent sign all documents and do all things necessary to place the real property known as B Street, Suburb C in the State of Victoria more particularly described in Certificate of Title Volume ... Folio ... (“the B Street, Suburb C Property”) on the market for sale forthwith out of Court (“the Sale”) and the proceeds of sale be applied in the following order:

   (a)To pay all costs, commissions and expenses of the sale;

   (b)To discharge the mortgage and any encumbrances affecting the B Street, Suburb C Property;

   (c)The sum of $4,400.00 to the Applicant (being the Orders for Costs made in Interim Orders 16 March 2020 and 21 July 2020);

   (d)To payout debts owing to Region D Water, Owners Corporation and Council arising from the property (including any judgement debts in the name of the parties).

   (e)The balance to the Respondent.

2. That for the purposes of the Sale the following Orders shall apply:

   (a)The selling agent shall be appointed by the President of the Real Estate Institute of Victoria (“REIV”) or his nominee;

   (b)The mode of sale shall be determined by the selling agent;

   (c)The conveyancer shall be appointed by the selling agent;

   (d)The listing and reserve price for the sale shall be as determined by the President of the REIV or his nominee;

   (e)Both parties shall do all acts and things and sign all documents necessary to give prompt effect to the Orders of the Court for the Sale.

3. That pending completion of the Sale:-

   (a)The rental income be applied towards the mortgage encumbering the B Street, Suburb C property;

   (b)During such right of occupation the Respondent pay all instalments pursuant to the mortgage, rates, taxes and other apportionable outgoings related to the B Street, Suburb C Property as and when they fall due;

   (c)Both the Applicant and Respondent hold their respective interest in the B Street, Suburb C Property on trust pursuant to these Orders

   (d)Neither party further encumber the B Street, Suburb C Property;

   (e)That liberty be reserved to either party to apply with respect to the terms and conditions of and execution of the Sale;

4. That contemporaneously with the sale of the B Street, Suburb C Property the Wife pay the Husband $16,047 (“the Payment”).  In the event that the proceeds of Sale of the B Street, Suburb C Property are insufficient to payout the debts referred to in Order 1(d) then the Wife shall pay the shortfall and deduct 50% of the shortfall from the Payment to the Husband.

5. That the Applicant retain as her sole property the real property known as E Street, Suburb F in the State of Victoria and more particularly described in Certificate of Title Volume ... Folio ... (“the E Street, Suburb F property”) and the Applicant indemnify the Respondent from the mortgage liability encumbering the E Street, Suburb F property together with all rates and outgoings.

6. That paragraph 5-9 of these Orders are binding on the trustee of the Super Fund G, member number ...34 (the fund).

7. The base amount allocated to the Applicant out of the interest of the Respondent in the Super Fund G, member number ...34 (“the fund”) is $13,703.00 (“the base amount”).

8. Pursuant to s 90XT(1)(a) of the Family Law Act 1975, whenever a splitable payment becomes payable in respect of the interest of the Respondent in the fund, the Applicant is entitled to be paid the base amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount and there be a corresponding reduction in the entitlement of the Respondent.

9. That this order has effect from the operative time and the operative time is four business days following the serving of these Orders on the Trustee of the fund.

10. Within 14 days of becoming entitled to receive a superannuation benefit from the fund, the Applicant will give the trustees of the fund:

    (a)All such forms as necessary to enable it to determine the nature and quantum of the Respondent’s superannuation entitlement; and

    (b)Any other related information it may reasonably require.

11. Until such time as the superannuation split to the Applicant pursuant to these Orders can be rolled over into a separate account to the Applicant:

    (a)The Respondent will give to the Applicant and the Trustee of the fund written notice of not less than 28 days before such time as he elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole in whole or in part their entitlement in the fund;

    (b)The Respondent will direct and authorise the trustee of the fund to communicate with the applicant and/or any person authorised by them in writing:

    (i)To answer any reasonable enquiries as may be made by them on or on their behalf from time to time regarding her entitlement in the fund; and

    (ii)To give to the applicant and/or her authorised representative a copy of any notice of any application or request by the Respondent which seeks release of entitlement in the fund in so far as that release may affect the Applicant’s entitlement in the fund pursuant to these orders; and

    (c)The Respondent, his servants and/or agents be and are hereby restrained from doing any act or thing which would prevent the Applicant, her heirs, executors, administrators or nominees from receiving the benefits in the fund to which they are entitled pursuant to these Orders.

12. In the event that the superannuation split to the Applicant pursuant to these Orders can be rolled over into a separate account to the Applicant each of the parties will each do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.

13. There be liberty to each party and the trustee of the fund to apply regarding the implementation of these orders affecting the interests of the Respondent and the Applicant in the fund.

14. That in the event that the Respondent refuses or neglects to execute a Deed and/or instrument in compliance with the provisions of the paragraphs of this Order, the Applicant is hereby appointed pursuant to Section 106A of the Family Law Act 197 to execute all Deeds, documents and/or instruments in the name of the Respondent and do all acts and things to give validity and operation to the Deeds, documents and/or instruments.

15. That the Respondent provide to the Applicant copies of his taxation financial documentation and tax returns for the financial years 2016/2017 to 2019/2020 within 14 days of request.

16. That unless specified in these Orders and save for the purpose of enforcing any monies due under these or any subsequent Orders:

    (a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders.

    (b)Monies standing to the credit of the parties in any bank account are to become the property of that party in whose name the account is registered and the parties shall do all necessary acts and things to close any joint accounts and the balance in any such joint account be divided equally;

    (c)Each party forego any claims they may have to any superannuation benefit belonging to or earned by the other;

    (d)Insurance policies remain the sole property of the owner/beneficiary named therein;

    (e)Each party be liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;

    (f)Each party be responsible for and indemnify the other for their individual debts; and

    (g)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

17. There be liberty to the parties to apply in respect of implementation of these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 70 of 2020

MS DEAKINS

Applicant

And

MR REMUS

Respondent

REASONS FOR JUDGMENT

Introductory

1. At the trial of this matter on 18 January 2021, the respondent husband (the parties are divorced but it is convenient to keep the nomenclature) sought an adjournment.  Applicant wife opposed and sought that property orders be made on an undefended basis.  I indicated that I would reserve judgment.  If I was to grant an adjournment, I indicated that I would make orders to progress the matter to trial.  If I did not, I would deal with the property matters on the wife’s materials alone.

The Submissions Made at Court

1. What follows is a paraphrase taken from my notes.

2. Counsel for the wife indicated that the wife seeks to retain the former matrimonial home at E Street, Suburb F.  There is no equity in the investment property in B Street, Suburb C.  Rental income received by the husband had not been applied.  There should be a 70/30 split in his client’s favour.  She also sought a superannuation splitting order and the fund had been given procedural fairness.  The wife made the greater and initial contribution.  She had $10,000 in savings and a car worth $18,000.  The husband had $15,000 credit card debt.  The wife was the homemaker.  They made equal contributions to the mortgages.  After separation, the wife had paid all the outgoings in E Street, Suburb F and half the mortgage.  The husband stopped paying any of the E Street, Suburb F expenses and mortgage.  The wife earns half what the husband has earned, and this justifies her having 70 per cent of what is a small pool.  Separation was in 2016 and the husband ceased paying the mortgage in September 2018.  Since then, the wife has continued to pay her half.

3. It will be apparent that these submissions were made on the basis that the matter was proceeding.  The husband, who was self-represented, had not in any meaningful way addressed the Court.

4. The husband went on to say that each week he had paid more on the mortgage (something the wife conceded to the extent of $20).  He disagreed that the wife did most of the cleaning.  He wanted to clear debt and have it finished.  He wanted it sorted correctly.  He had attended the last hearing and thereafter contacted a lawyer, but that lawyer told him it was too late.  He confirmed he was working and earning about $69,000 per year.

5. I sought to understand the husband’s position and following what in effect was some prompting, the husband indicated that he was seeking to have the matter adjourned so that he might obtain representation and/or consider his position.  His complete lack of familiarity with legal process made it slightly difficult to understand exactly what he was saying.  If I understood him correctly, he fully accepted that the various delays of which counsel for the wife made issue were his fault but did not provide any explanation for his deficiencies.

6. Counsel for the wife then proceeded to make submissions about the adjournment application.  He submitted there could be no confidence the husband would attend to his affairs.  He was aware of the matter being on foot and had attended the conciliation conference.  Previous cost orders had been made but not paid.  There had been no disclosure by the husband, and the wife had been put to extra expense of reconstructing the parties’ affairs from subpoenaed documents.  Her affidavit material was based on the husband’s own bank statements.

The Adjournment Application

1. In order to understand the adjournment application properly, it is necessary to detail the history of the matter.  The wife’s initiating application was filed on 13 January 2020 together with her affidavit and financial statement.  On 20 January 2020, the husband signed an acknowledgement of service, and on the 30^th of January 2020, an affidavit of service confirmed this.  The wife’s materials which had been handed to the father clearly denoted a first return date of 16 March 2020.

2. On 16 March 2020, the husband did not attend, nor had he filed any materials.  The Court made order inter alia that the husband file and serve responding materials by 6 April 2020, that the husband pay the wife costs of $2,200, thrown away within 30 days and the Court also ordered the husband to attend court on the next return date at 29 April 2020 or face a warrant.  These orders were posted to the husband’s residential address by the Court.

3. The husband clearly received the documents because he attended the Court on 29 April 2020.  Orders were made by consent for a conciliation conference.  Further, the husband was ordered to file and serve his responding materials within 14 days.  He did not, however, file any such materials.  The matter proceeded to a conciliation conference ultimately on 21 July with Registrar Riddiford.  The husband attended.  He was ordered to pay $2,200 costs.  The order made by Registrar Riddiford reads as follows:

   That the Respondent Mr Remus pay to the Applicant Ms Deakins the sum of $2,200.00 (two thousand two hundred dollars) being the costs incurred by the Applicant of and incidental to the conciliation conference appointed for this day (calculated at scale) that were thrown away as a consequence of firstly the failure and/or neglect of the Respondent to file and serve documentation in accordance with the Order of Judge Burchardt made 16 March 2020 and secondly the failure and/or neglect of the Respondent to prepare for the conciliation conference so as to be in a position to consider the offer of settlement made and/or make a counter offer of settlement.

4. The costs order was stayed for 7 days.

5. On 13 November 2020, there was a further hearing (in fact, the original posited trial date).  The husband had not paid any outstanding costs orders, had not filed documents and did not attend.  The matter was set down for trial for one day on 18 January 2021, and leave was granted to the applicant to proceed undefended if the husband failed to attend.

The Applicable Law

1. In the matter of Sexton & Sexton [2012] FamCAFC 218 (“Sexton”), the Full Court of the Family Court dealt with a matter which had some differences, as all cases do, from this one but was equally in some ways similar to the circumstances of this case.  At [19] to [22], the Full Court set out the relevant history of the proceeding at first instance as follows:

   On 28 June 2011, the day her Honour was due to give her reasons for judgment, the husband sought to file an affidavit.  That affidavit sets out, among other things, the husband’s “reasons” for his non-compliance, the personal history of the parties, the contributions of the parties, s 75(2) factors relevant to the husband and the orders sought by the husband.  This affidavit was of some 66 paragraphs. 

   Her Honour gave leave for the husband to rely on paragraphs [1] – [17] of that affidavit and proceeded to give her reasons for judgment. 

   Her Honour first gave leave for the husband to file the abovementioned affidavit. 

   Her Honour then went on to discuss the husband’s non-compliance with orders throughout the proceedings.  Her Honour noted that the husband said he “negated” dealing with this matter, but pointed out the fact that he had provided no medical evidence to demonstrate that he was unable to comply with directions.  Her Honour commented that the husband’s non-compliance was not just in relation to one order or two orders but it was a course of conducted which, in her Honour’s view: 

   …makes this non-compliance serious.  There has been an extensive series of non-compliance in circumstances where the husband has not deposed to a timetable that would see this matter ready for a trial…

   I am not satisfied with the reasons that he has given for non-compliance.  He has not really provided any satisfactory reasons and I am therefore not satisfied that it is appropriate to further delay this matter when the wife has at all times complied with the Court’s directions and the matter was, by consent, going to proceed on a default basis on 2 June 2011…

2. It will be noted, of course, that this matter was not ultimately ordered to proceed on a default basis.

3. I do not propose to deal with each of the grounds of appeal in that case in any detail because they are not directly pertinent to the points I wish to make.  What is important is the matters of general principle flowing from the judgment of the Full Court.  At [45] – [51], the Full Court said as follows:

   This ground alleges that her Honour failed to have any or any proper regard to the availability of an order for costs to compensate the wife for another adjournment in this matter.  This “compensation” was suggested by senior counsel for the husband in submissions dated 9 June 2011.

   Both senior counsel for the husband and counsel for the wife drew attention to the decision in Aon Risk Service Australia Ltd & Australia National University.  In that decision, His Honour Chief Justice French said [32]: 

   In the proper exercise of the primary judge’s discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs.  Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings.  Moreover, the time of the Court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account.  So too is the need to maintain public confidence in the judicial system.  Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU’s statement of claim should not have been allowed.  The discretion of the primary judge miscarried.

   Again in [30], his Honour said: 

   It might be thought a truism that “case management principles” should not supplant the objective of doing justice between the parties according to law.  Accepting that proposition, JL Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by  r502.  Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.

   The majority of the Court (Gummow, Hayne, Crennan, Kiefel and Bell JJ) came to the same conclusion as the Chief Justice.  Their Honours said [33]: 

   …The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment. 

   Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important consideration in the exercise of the court’s discretion.  Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment.

   Their Honours also said [34]: 

   An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation.  There is no such entitlement.  All matters relevant to the exercise of the power to permit amendment should be weighed.  The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on the application for leave to amend…

   The applicant sought in [1] to [17] of his affidavit sworn on 9 June 2011 to explain that he had in some way found himself unable to deal with the proceedings before the Court.  The husband’s explanation for his non-compliance is set out at [34] of these reasons.  Essentially the husband asserted that he was not able to mentally deal with the proceedings in the Federal Magistrates Court and the husband believed he psychologically blocked out the proceedings.  No medical evidence was adduced to support his assertion that he was mentally unable to deal with the matter or that he had psychologically blocked the proceedings out.  Nor did the husband elaborate further about those assertions.  Thus it was unclear what might have caused him to negate dealing with the proceedings before her Honour. 

   It was submitted that an order for costs would compensate the wife for any delay.  However, to adopt the words used by the majority in Aon Risk Services Australia Limited & Australian National University, there is no entitlement for a party to amend a pleading on the basis that a party can raise an arguable claim, subject only to payment of costs by way of compensation.  The Court must weigh all matters relevant to the exercise of the power to permit amendment, such as substantial delay, wasted costs and concerns of case management.  It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.  Such an order may not always undo the prejudice a party suffers by late amendment.  The learned Federal Magistrate was entitled in the exercise of her discretion to permit written submission, but to otherwise bring the matter to a conclusion.

1. I respectfully adopt the observations of the Full Court in Sexton which, as I hope the extract quoted explains, is as applicable to applications for adjournment as they are to amendment, including, in my view, even on applications to adjourn at a final hearing.

Consideration of the Adjournment Application

1. The husband has not complied with orders to file his materials made on 16 March 2020 which he received.  He did not comply with orders made on 29 April 2020 which were by consent and in his presence.  He also received the orders made on 13 November 2020 and still did not file any material.

2. The husband did not do anything to prepare for the conciliation conference which led to cost orders.

3. The husband has not paid either of the cost orders made against him although the time for compliance has long past.

4. The husband has offered no explanation for any of these failures.  To his credit, he did not seek to deny his defaults but he has provided no medical or other evidence, even as it were from the bar table, to explain.

5. Although the husband has made mention of having made recent, and unproductive, contact with a solicitor, he has had over a year to obtain legal representation and has not been able to do so.  Nothing the husband said to the Court suggested he would be able to obtain legal representation in the foreseeable future.

6. The husband himself expressed a desire to have the matter finalised.

7. The matters the husband indicated he might wish to contest, as I understood it, were first that he had paid the mortgage each week, to a degree undisclosed by the wife, and second, that he disagreed that she did most of the cleaning.  The latter point is plainly at the margins, in any event.  The former is a relatively minor contribution issue, in circumstances where the wife has had in effect to reconstruct the financial picture from subpoenaed documents.

8. There is no suggestion that the husband can and/or will pay any further cost orders, should the court adjourn and make them.

9. Finally, separation took place in 2016.  Any adjournment would be to at least November 2021.

10. In all the circumstances, it is clear that the matter should not be adjourned.  I am conscious this is a significant step inasmuch as the husband will simply not be heard, but for the reasons I have set out above, in my view it is appropriate to proceed on an undefended basis.  It should be noted that the wife’s submission that the finances of the parties had been reconstructed not least from the husband’s own financial documentation is, when one comes to the wife’s trial affidavit, clearly correct.

The Substantive Application

1. The following facts seem to me to be scarcely open to question and are taken from the wife’s trial affidavit. 

2. The wife was born in 1987, and the husband was born in 1985.  They met when both very young and commenced cohabitation in 2007, following which they married in 2010.  They separated on the 17^th of November 2016 and the divorce order became operative on 14 January 2019.

3. The wife had started work at Employer H in 2007 at which time the parties were saving for a deposit on a home.  She had savings of $10,000, plus a Motor Vehicle 1 she had been able to buy for $18,000 in 2005 (when she was only 18 – she must have saved carefully to buy it).  The husband was said to have had no savings but credit card debts of over $15,000.  From 2007 the parties lived with the father’s parents and paid a total of rent of $50 per week, which was on any view of the matter, clearly, a significant assistance to them in their savings endeavours.  There are no figures for the parties’ superannuation at commencement, but in the circumstances, they are likely to have been minimal.

4. In 2008, the parties bought the land for what eventually became the matrimonial home at E Street, Suburb F, with a deposit provided by the wife.  The loan was in her name alone because of the husband’s debts.  Both parties contributed to purchase the land and build the home, but the wife says she put in $6,000 more in total than the husband.  Nonetheless, the wife concedes that the husband’s father gifted them an indeterminate amount of money to help with the house and in my view the contributions towards the building of the property must be taken as a whole to be even.  The parties were able to move in in 2010, so they had three years of very considerable rental assistance from the husband’s parents.

5. In 2014, the parties bought an investment property in B Street, Suburb C as joint proprietors.  The husband was in charge of the purchase and rental and the like thereafter.  But from subpoenaed documentation, the wife has ascertained that the purchase price was $343,000, with a loan of $272,000.  The wife contributed $20,000, including a $15,000 victims of crime payment, but the husband’s boss loaned him $10,000 to assist.

6. From subpoenaed material, it has become apparent that on the 4^th of November 2014 the loan in respect of the B Street, Suburb C property was refinanced to $301,695, with a 60 month period of interest only.  This was of course an increase of some $30,000 and the wife did not get any of that amount.  All rental receipts have been paid into one account or another of the husband.

7. On the 4^th of June 2019, the husband ceased all payments towards the B Street, Suburb C loan, but has continued to receive the rent.  The loan has increased to $319,000.  Rents received by the husband not applied to the loan until 8 July 2020 total $22,318.  The rent continued until November 2020, when the tenant vacated.  There are outstanding bills to Region D Water of $1750, body corporate fees of $4795, rates of $5,243, and previous body corporate fees of $10,314 still owing in respect of the investment property.

8. In November 2014, when the B Street, Suburb C property was purchased, the E Street, Suburb F mortgage was about $260,000.  It was increased to $360,000 in September 2016 without the wife’s knowledge, shortly before separation in November 2016.  The husband bought a car with the increased funds and obtained an overall surplus of about $40,000.  Of that, it appears that the husband applied $23,000 to the mortgage or other expenses, but $17,000 was retained to his own benefit, together with a further $3,677 he withdrew on the mortgage following separation.

9. In September 2018, the husband ceased paying his half share of the E Street, Suburb F mortgage, but the wife has continued to pay $225 per week.  The mortgage on the E Street, Suburb F property is now $346,436. 

10. The husband earns approximately $70,000 a year and has done so for a number of years in what appears to be secure employment.  The wife’s income reduced following an injury in 2014, but she still contributed her contributions to the mortgage and household expenses.  Since separation in 2016 the wife has remained in the home and has continued to pay half the mortgage and all household bills.

Stanford & Stanford (2012) 247 CLR 108

1. The court’s first task is to ascertain the legal and equitable property interests of the parties and determine whether it is just and equitable that there be a property adjustment.  Nonetheless here, as in so many cases, it is clear that both sides want an adjustment.  The basis upon which they formerly conduct their finances as a couple has wholly disappeared and it is plainly just and equitable that there be a property adjustment.

The Pool

1. The pool consists of the E Street, Suburb F property worth $525,000 with a mortgage of $346,000 and thus a net equity of $179,000. 

2. The B Street, Suburb C property is worth $346,436 with a mortgage of $319,778 thus being an equity of $27,000.

3. Each of the parties has a car.  That of the husband, bought out of the increase in the mortgage already referred to is said to be worth over $31,000.  There is a red book valuation, and in the circumstances in my opinion both cars should be included at the values which are attributed by the wife, namely, $900 for her car and $32,600 for his.

4. The bills outstanding in respect of the B Street, Suburb C property are worth $23,000 rounded off.  The wife has superannuation of $57,687 and the husband has $85,092. 

5. The wife seeks that there be added back the rent received by the husband from the B Street, Suburb C property and not applied to the mortgage in the sum of $26,907 and the $17,000 from refinancing and $3677 redrawn on the mortgage.

6. The wife seeks the sale of the B Street, Suburb C property and that there be paid relevantly additional to the usual sale costs (a) $4400 outstanding costs orders in her favour (b) the $23,000 debts to which I have referred (with the husband to pay any shortfall) and (c) the balance to the husband.

7. The trouble with this of course is that on the wife’s figures there will be no balance to be paid to the husband.

8. The wife also seeks a superannuation splitting order.  The materials show that the wife’s superannuation is $57,687 and the combined total for the husband is $85,092.

9. She asserts that contributions should be assessed 60/40 in her favour together with an eight per cent future needs adjustment.

Contributions

1. Although the wife’s initial contributions were slightly greater the parties had the benefit of living at rental costs of $50 per week from cohabitation in 2007 until they moved into the E Street, Suburb F property in 2010.  As I have already indicated this was a significant benefit to the parties on any view.

2. The house was built, and the wife’s greater contributions are in my view offset by the father’s gift. 

3. In October 2014 the B Street, Suburb C property was bought and the wife put in $20,000 but the husband’s boss contributed $10,000 (there is no information as to who repaid it but one would infer that it was probably the husband).

4. It needs to be borne in mind, furthermore, that the question of arriving at a resolution of the parties’ property interests in a manner that is just and equitable is not an accounting exercise.  It is a matter of looking at all relevant contributions and other matters. 

5. Apart from the addbacks and debts which to my way of thinking stand apart, I think that a more accurate calibration of the contributions is one of equality.  The husband worked throughout and always made more money than the wife.  There is no doubt that once the relationship came to an end in 2016, the wife’s contributions had been greater as she has continued to pay bills throughout.  The husband ceased making any payments in respect to the matrimonial home in E Street, Suburb F in 2018.  Nonetheless the wife has only ever been paying $225 a week towards the mortgage which equates to approximately $11,000 per annum.  Thus, since the husband stopped paying in September 2018, the wife has paid approximately $25,000 more.  The mortgage is now $346,000.  She has also paid all of the bills since September 2018.

6. Against this however, and counsel made no reference to it, the wife has had the benefit of residence.  If she was not living at the matrimonial home she would have been having to pay rent.  $225 a week rent would not in my view be particularly expensive for a house on her own. 

7. I repeat again, these are not areas of a dollar for dollar accounting.  It is a matter of looking at the picture as a whole and making a fair assessment.  I note that the husband has sought to suggest in his oral submissions that he might put in issue the amount of contributions made by the parties as homemakers.  The wife has gone on affidavit that she was the primary homemaker and the husband’s brief oral submission does not in my view persuade me that that was not the case.  With financial contributions probably being very close to even overall, I think that the wife’s homemaker contribution and general financial assistance (bearing in mind her unchallenged evidence that she assisted the husband pay off his initial debt) properly would grant a five per cent loading in her favour under this heading.

8. This has left to one side however the addbacks.  If ever there was a clear case for addbacks this must surely be it.  The husband obtained $26,907 in rent and simply put it to whatever needs he thought might benefit himself.  It could and should have been applied to the mortgage.  It should clearly be added back.

9. The husband also got $17,000 from the increase in the mortgage for his own personal use and the $3677 he withdrew from the mortgage in August 2017.  Once again this is a very clear case and both those sums should be added back.

10. The B Street, Suburb C property should be sold, and the outstanding bills should be paid from the proceeds of sale together with the outstanding cost bills also.  It is not clear where payment for those cost bills would otherwise derive.  It is more probably than not that there would be an almost negligible surplus. 

11. I note that the wife’s affidavit says that Region D Water, owner’s corporation fees and Suburb C Council are the respondent’s debts only, but the current outgoings are joint.  It should be noted that I have no power to alter third party interests.  I will provide liberty to apply in respect of the resolution of the outstanding bills in case the proceeds of sale are insufficient to meet them because thought will need to be given as to how that may be dealt with.

Future Needs (the section 75(2) factors)

1. The husband is 35 years old, in good health, and fully employed in what appears to be secure ongoing employment.  The wife is 33 and suffers from anxiety which has affected her capacity to work and is presently receiving about $720 per week or approximately $36,000.

2. This was a nine-year relationship in which there were no children.  I think that the eight per cent adjustment claimed by the wife is an appropriate one, bearing in mind the very significant earning disparities and the wife’s uncertainties occasioned by the wife’s health difficulties. 

How is this Outcome, of a 63/37 Division of the Parties’ Properties to be Achieved

1. The real net assets of the parties are

   ·B Street, Suburb C property (effectively zero)

   ·E Street, Suburb F.  $179,000 net equity.

   ·Cars:  wife, $900.  Husband, $32,600.

   ·Addback for rent:  $26,907.

   ·Addback mortgage and redraw:  20,677.

   ·Total:  $260,084

2. Wife to receive 63 per cent – $163,852.  Husband to receive 37 per cent – $96,231, less $26,907 and $20,677, addbacks and car $32,600 is $16,047

3. I accept that there should be a superannuation splitting order as the wife seeks.  The vast bulk of the parties’ superannuation must have been attained during their time together, and it is in the circumstances of the matter just and equitable that there be such an adjustment.

Just and Equitable

1. In my view, a resolution of the matter that gives the wife 63 per cent of the non-superannuation assets and 37 to the husband is indeed, together with an equalisation of superannuation, just and equitable.

2. I will grant liberty to apply in respect of the implementation of these orders.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 5 February 2021