Deen & Deen
[2023] FedCFamC2F 1106
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Deen & Deen [2023] FedCFamC2F 1106
File number(s): NCC 257 of 2019 2 Judgment of: JUDGE CARTY Date of judgment: 25 August 2023 Catchwords: FAMILY LAW – PROPERTY –final orders sought pursuant to s.79 of the Act– duration of relationship- where the parties were in a de facto relationship prior to their marriage – whether the de facto relationship commenced in 2004 or in 2008 – agreed balance sheet – court satisfied in all the circumstances that it is just and equitable to make orders – each party made initial direct financial contributions – husband’s initial direct financial contribution significantly greater than the wife’s –consideration of global or separate pool approach to assessment of contributions – two pool approach convenient – assessment of contributions during relationship – consideration of what orders are appropriate to make Legislation: Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth) ss 4AA, 75, 79, Part VIII
Cases cited: Briginshaw & Briginshaw and Another (1938) 60 CLR 336
Crabtree & Crabtree (1963) 5 FLR 307
Dickons & Dickons [2012] FamCAFC 154; (2012) 50 FamLR 244
Fairbairn v Radecki [2022] HCA 18
Holland & Holland [2017]FamCAFC 166
In the Marriage of Olliver [1978] FamCA 24; (1978) FLC 90-499
Kowaliw (1981) FLC 91-092
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 (30 April 1986)
Stanford & Stanford [2012] HCA 52
Zaruba & Zaruba [2017] FamCAFC 91
Division: Division 2 Family Law Number of paragraphs: 226 Date of last submission/s: 13 January 2023 Date of hearing: 28 & 29 January 2022 Place: Newcastle Counsel for the Applicant: Mr Rugendyke Solicitor for the Applicant: Byrnes Lawyers Solicitor for the Respondent: Marsden Law Group ORDERS
NCC 257 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DEEN
Applicant
AND: MS DEEN
Respondent
ORDER MADE BY:
JUDGE CARTY
DATE OF ORDER:
25 AUGUST 2023
THE COURT ORDERS THAT:
1.These Orders are made by way of declaration of property interests pursuant to Section 78 of the Family Law Act 1975 (“the Act”) and by way of alteration of property interests pursuant to Section 79 of the Act.
Payment to the Wife
2.Within 28 days of the date of these Orders the husband shall pay to the wife, or as she otherwise directs in writing, the sum of $631,700.51.
Wife to vacate the B Street, Suburb C property
3.Within 28 days of the date of these Orders and simultaneously with the husband complying with Order 2 hereto the wife shall vacate the property situate and known as B Street, Suburb C NSW being the whole of the land contained in folio identifier … (‘the Suburb C property’), and thereafter the wife is restrained from attending at the Suburb C property without the prior written consent of the husband.
4.The wife shall leave the Suburb C property in a clean and tidy condition.
The B Street, Suburb C property
5.By way of declaration of property interests, the husband is declared to have the sole right, title and interest in the Suburb C property and the husband shall indemnify and keep indemnified the wife in relation to all liabilities in respect of the Suburb C property, whenever and howsoever arising.
The D Street, Suburb E property
6.By way of declaration of property interests, the wife is declared to have the sole right, title and interest in the property situate and known as Suburb E NSW being the whole of the land contained in folio identifier … (‘the Suburb E property’) and the wife shall indemnify and keep indemnified the husband in relation to all liabilities in respect of the Suburb E property, whenever and howsoever arising.
The F Street, Suburb G property
7.By way of declaration of property interests, the husband is declared to have the sole right, title and interest in the property situate and known as Suburb G being the whole of the land contained in folio identifier … (‘the Suburb G property’) and the husband shall indemnify and keep indemnified the wife in relation to all liabilities in respect of the Suburb G property, whenever and howsoever arising.
The H Street, Suburb J property
8.By way of declaration of property interests, the husband is declared to have the sole right, title and interest in the property situate and known as Suburb J QLD being the whole of the land contained in folio identifier … (‘the Suburb J property’) and the husband shall indemnify and keep indemnified the wife in relation to all liabilities in respect of the Suburb J property, whenever and howsoever arising.
The K Street, Suburb L property
9.By way of declaration of property interests, the husband is declared to have the sole right, title and interest in the property situate and known as Suburb L QLD being the whole of the land contained in folio identifier … (‘the Suburb L property’) and the husband shall indemnify and keep indemnified the wife in relation to all liabilities in respect of the Suburb L property, whenever and howsoever arising.
The Manufactured home
10.By way of declaration of property interests, the husband is declared to have the sole right, title and interest in the manufactured home located at M Street, Town N (‘the manufactured home’) and the husband shall indemnify and keep indemnified the wife in relation to all liabilities in respect of the manufactured home, whenever and howsoever arising.
Burial plot
11.Within 28 days of the date of these orders, the husband shall sign all documents and do all things necessary to transfer to the wife all his interest in the burial plot in the O Cemetery at Suburb P.
Enforcement Orders
12.In the event that the husband fails to make the payment to the wife required by Order 2 hereto by the due date, or any portion thereof remains outstanding after the due date for payment, the husband shall pay interest to the wife at the rate prescribed by the Federal Circuit and Family Court (Family Law) Rules 2021 from the due date until payment is made in full.
13.In the event the husband fails to comply with Order 2 hereto by the due date, then the husband shall do all acts and things necessary to list for sale and to sell the B Street, Suburb C property by private treaty at the earliest possible date and disburse the proceeds of the said sale in the following manner and priority:
(a)Payment of agent’s commission and advertising expenses and legal expenses of the sale.
(b)Payment of the sum of $631,700.51 plus interest accrued as per Order 12 hereof to the wife.
(c)The balance then remaining to the husband.
14.Should the Suburb C property fail to have sold by way of exchange of unconditional contracts for sale within 3 months of the Suburb C property first being offered by sale by private treaty, the husband shall do all acts and things necessary to cause the said property to be offered for sale by public auction on the first Saturday four months after the property was first offered for sale by private treaty.
15.The reserve price for the auction of the Suburb C property shall be five per centum (5%) less than the price that the said property was last offered for sale by private treaty.
16.Should the Suburb C property fail to sell at the first auction the husband shall do all acts and things necessary to cause the said property to be offered for sale by public auction every fourth Saturday thereafter until the said property is sold and the reserve price of each subsequent auction shall be two per centum (2%) less than the preceding reserve price.
17.That in the event the Suburb C property is sold by way of auction, the sale proceeds shall be disbursed pursuant to Order 13 hereto.
Motor vehicle
18.That as between the parties, the husband is hereby declared to be solely entitled to Motor Vehicle 1 and the husband shall indemnify and keep indemnified the wife in relation to all liabilities in respect of the said motor vehicle, whenever and howsoever arising.
Other Orders
19.That as between the parties, and subject to the above Orders, the husband and the wife shall each respectively retain all interest in and entitlement to:
(a)All personal property currently in his or her respective possession or control.
(b)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his or her sole name respectively.
(c)All interests in life insurance policies and superannuation funds in his or her sole name respectively.
20.That the wife shall be and remain liable for any debts in her name, at the date of these Orders, save as provided for in preceding orders, and in these respects shall indemnify and hold harmless the husband from and against all and any liability in relation hereto.
21.That the husband shall be and remain liable for any debts in his name, at the date of these Orders, save as provided for in preceding Orders, and in these respects shall indemnify and hold harmless the wife from and against all and any liability in relation hereto.
22.That the parties shall do all acts and things necessary and give all consents and execute all documents and writings to give effect to these Orders in the time periods prescribed.
23.That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act1975 to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
24.Any written submissions in support of an application for costs shall be provided to chambers and served by no later than 28 days of the date of these orders.
25.Any submissions in response to an application for costs shall be provided to chambers and served within a further 14 days after receipt of the submission provided in Order 25 hereto.
26.In the event that written submissions in support of an application for costs are not filed and served in accordance with Order 24 hereto then any and all outstanding applications will be withdrawn and dismissed upon the expiration of 28 days from the date of these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE CARTY
INTRODUCTION
The applicant husband Mr Deen (“the husband”) seeks orders to alter the property interests of the parties pursuant to s. 79 of the Family Law Act1975 (Cth) (“the Act”) following the breakdown of the marriage. The husband contends that he is entitled to receive property with a value equivalent to seventy-two per centum (72%) of the net pool of assets, on a contribution basis.
The respondent wife Ms Deen (“the wife”) also seeks orders to alter the property interests of the parties, and she contends that she is entitled to property with a value equivalent to forty‑five per centum (45%) of the net pool of assets, on a contribution basis.
Neither party seeks an adjustment pursuant to the matters in s.75(2) of the Act.
The parties are in dispute about a number of issues, including the length of time that they were in a de facto relationship before their marriage in 2011 and the appropriate order to make based on a proper assessment of their respective contributions.
The husband submits that the relevant period of cohabitation was just shy of 10 years. The wife submits that the relevant period of cohabitation is 13 years and 5 months.
The Court has found that, having regard to all of the circumstances of the relationship, the parties were in a de facto relationship[1] from 2008 until they married in 2011, a period of about 3 years and 5 months. Thereafter the parties were married for a period of 6 years and 4 months. The relevant period of cohabitation is therefore about 9 years and 9 months.
[1] In a relationship as a couple living together on a genuine domestic basis as set out in s.4AA of the Act
The Court has found that the husband is entitled to property with a value equivalent to 69.5% of the net pool of assets, and that the wife is entitled to property with a value equivalent to 30.5% of the net pool of assets.
BACKGROUND
In this background, statements of fact should be construed as findings, unless otherwise stated.
The husband was born in Australia in 1952. He was 70 years old at the hearing. Currently he lives in a home, which he owns, situated on a property at Town N, New South Wales. The husband retired from paid employment in 1988, when he commenced caring for his late father, who passed away in 1990. Thereafter the husband cared for his mother, who passed away in 2002. Ever since he retired from paid employment, the husband has relied on income generated from his investments, including from his unencumbered real properties. The husband has no children and has not re-partnered.
The wife was born in Country Q in 1961. She was 61 years old at the hearing. The wife immigrated to Australia in 1980, and became an Australian citizen in 1985. She currently lives at B Street, Suburb C, New South Wales (“the Suburb C property”) with her mother. The husband is the sole registered proprietor of the Suburb C property. The wife has not re‑partnered. She works as a health care worker at R Company at Suburb S, New South Wales.
The wife has one daughter from a previous relationship, Ms T who was born in 1987 and is currently 35 years old.
In 1977 the husband purchased a property at B Street, Suburb C (“the Suburb C property”).
In 1984 the husband purchased a property at U Street, Suburb V (“the Suburb V property”).
In about 1993 the husband purchased a property at F Street, Suburb G (“the Suburb G property”).
The parties first met in 2000, when the husband was about 48 years old and the wife was about 39 years old. The husband was living with his mother, in his mother’s home at Suburb G. The husband’s mother employed the wife, on a casual basis, to clean the home at Suburb G. The wife was living with her daughter Ms T, and her parents, at D Street, Suburb E (“the Suburb E property”).
The parties became friends. In 2000 the husband loaned the wife a car. The wife invited the husband to visit her home at Suburb E. In 2001 the husband was invited to and attended the wife’s fortieth birthday party.
In about late 2001 the husband’s mother moved into a nursing home.[2] The husband visited his mother daily. He felt depressed and very lonely[3] and regularly spent time with the wife and her family at the Suburb E property. The husband says that he felt sorry for the wife’s family, especially her parents who did not speak English.
[2] Exhibit I
[3] Husband’s affidavit paragraph 37
In 2002 the husband made a Will, and he appointed the wife his sole executor and trustee. He bequeathed to the wife a legacy of $100,000, and the rest of his estate to Ms T[4]. The husband says he did this because he was lonely and depressed, and the wife was offering him friendship.
[4] Husband’s Affidavit paragraph 38; Wife’s affidavit Annexure A
In 2002 the husband’s mother passed away. The wife attended her funeral service. In late 2002 the husband moved back into his own property at Suburb G (“the Suburb G property”).
In 2003 the husband realised approximately $280,000 from the sale of shares which he held in W Pty Ltd, and he inherited approximately $530,000 from the Estate of his late mother. He used the proceeds of the sale of his shares and his inheritance to purchase:
(a)The real property at X Street, Town Y (“the Town Y property”);
(b)The real property at H Street, Suburb J (‘the Suburb J property”); and
(c)The real property K Street, Suburb L (“the Suburb L property”).
In 2003 the husband travelled to Queensland with the wife’s father, and the two men stayed with the husband’s brother, and his family, for a few days. In 2003 the husband attended Ms T’s debutante ball with the wife.
The parties agree that by mid-2003 they had commenced a sexual relationship with each other, which took place at the husband’s residence in Suburb G. The wife is from a traditional family, and she did not want her daughter, or her parents, to know that she and the husband were having sex before marriage, and the parties conducted their sexual relationship away from the Suburb E property. The wife was careful to be back home by the early hours of the morning, so that she could wake up at Suburb E and be there for her daughter in the morning.
In 2004 the wife’s father transferred to the wife an estate in fee simple in the Suburb E property for the consideration of $1.00.[5]
[5] Husband’s affidavit Annexure K
In 2004 the husband sold the Suburb V property and realised a net amount of approximately $300,000. In 2004 he deposited $460,066.18 into a term deposit which matured in late 2004.
Between mid-2004 and late 2004 the parties travelled together overseas, including to Country Z, where they stayed with the wife’s relatives. The parties shared the costs of the travel equally. The husband purchased two rings in City AA, and each party wore one ring.
In late 2004 the parties’ opened a bank account in their joint names with BB Bank[6] (“the joint account”). It is common ground that the initial deposit of $20,000 into the joint account was transferred from the wife’s savings, and that subsequent cash amounts were deposited into the joint account, including a total amount of $60,000 in savings provided by the wife’s parents, as well as some further savings of the wife and some windfalls. The husband agrees that he did not deposit any funds into the joint account. He did earn interest on the monies in the joint account,[7] and in 2008, the joint account was closed and the funds were transferred into a Term Deposit account held in the husband’s sole name[8]. The husband agrees that he did not make any deposits into the Term deposit account.
[6] Wife’s affidavit Annexure K
[7] Wife’s affidavit Annexure L
[8] Wife’s Annexure M
In mid-2005 a quotation for the construction of a two storey four bedroom home on the Suburb C property[9] was issued by CC Building Company to the parties jointly and, subsequently, variations to the contract, requests for payment, and the inspection, completion and the final occupation certificates were issued and addressed to both parties. The construction of the home on the Suburb C property was completed by late 2006 at a total cost of about $280,000.
[9] Wife’s Annexures N and O
In 2006 the parties travelled to Region DD together to inspect the real properties owned by the husband there.
In about 2007 the husband moved out of the Suburb G property and commenced to live at the Suburb C property. The wife remained living with her parents and Ms T at the Suburb E property, and provided care for her uncle and aunt, who lived in Suburb S.
In 2007 the wife’s uncle passed away. In 2007 the wife’s father was hospitalised, and he died in 2008.
In 2008 the husband purchased a right of burial for himself and the wife in the O Cemetery[10] in a plot adjacent to the plot owned by the wife’s parents.
[10] Wife’s Annexure V and W
In 2008 Ms T, who was then about 20 years old, moved into the Suburb C property where the husband was living.
In May 2008[11] the wife and her mother moved into the Suburb C property and commenced to live there with the husband and Ms T.
[11] Wife’s affidavit paragraph 195; The Husband agreed in cross examination that by May 2008 five people were living in the home at the Suburb C property, that is himself, the wife, her daughter, along with the wife’s brother and the wife’s mother.
It is common ground that at least from May 2008 onwards the parties’ lived together in a de facto relationship until they married in 2011. The parties continued to live together after the marriage and separated on a final basis on 16 February 2018. There are no children of the marriage.
In 2012 Ms T moved to City EE for work. In early 2014 Ms T purchased a property in Suburb FF. The parties provided the sum of $116,919 to Ms T to assist her with the purchase of her property. In mid-2016 the parties bought a new Motor Vehicle 2 for Ms T and gifted it to her about three months later, when she returned from work overseas.
On 16 February 2018 the parties finally separated. The husband moved out of the Suburb C property. The wife and her mother have remained living in the Suburb C property since separation.
In about early 2018 the husband purchased a home, in which he now lives, for the sum of approximately $425,000. The husband paid for the home with $220,000 which he withdrew from his GG Bank Super account and the balance of around $200,000 was withdrawn from his GG Bank Saver account.
On 31 January 2019 the husband filed an Initiating Application, and on 9 November 2020 he filed an Amended Initiating Application.
On 15 March 2019 the wife filed a Response.
In late 2019 a Divorce Order was made, which became absolute in late 2019.
In July 2021 the husband sold his property at Town Y for approximately $445,000.
THE HEARING
The final hearing proceeded over the course of two days on 28 and 29 November 2022. The evidence was completed within the time estimated for the hearing, however there was insufficient time for final submissions. A timetable was set for the filing of written submissions, including a reply by the applicant, which was filed on 13 January 2023.
Mr Rugendyke of Learned Counsel appeared for the husband at the hearing. In support of his case the husband relied upon:
(a)Outline of Case Document (Final Hearing) filed 23 November 2022;
(b)Amend Initiating Application filed 9 November 2020;
(c)His Affidavit filed 3 March 2022;
(d)His Financial Statement filed 7 November 2022;
(e)Written submissions filed 9 December 2022; and
(f)Written Submissions in Reply filed 13 January 2023.
Mr Reeve Solicitor appeared for the wife at the hearing. In support of her case the wife relied upon:
(a)Her Outline of Case Document (Final Hearing) filed 24 November 2022;
(b)Her Affidavit filed 10 March 2022;
(c)Affidavit of Ms T filed 16 November 2020;
(d)Her Financial Statement filed 18 November 2022;
(e)Minute of Order Exhibit B; and
(f)Witten Submissions filed 13 January 2023.
Objections were taken by each of the parties to parts of the affidavits relied upon by the other, which resulted in the exclusion of certain parts of each of the affidavits relied upon.
Each party tendered into evidence documents which were admitted and became exhibits in the proceedings.
LEGAL PRINCIPLES
These property proceedings are to be determined in accordance with Part VIII of the Family Law Act 1975 (Cth) (“the Act”).
Section 79(1) of the Act empowers the court to make such orders as it considers appropriate altering the interests of the parties to a marriage in the property of both or either of them.
Section 79(2) of the Act provides that the court shall not make an order under the section unless it is satisfied that it would be just and equitable to do so.
In Stanford & Stanford[12] the High Court said that when an application for property settlement is made the court must first identify the legal interests of the parties in the property and then consider whether it is just and equitable to make an order altering those legal interests. The question of whether it is just and equitable to make an order cannot be dealt with simply by considering whether a party has made contributions as set out in s 79(4) of the Act. The High Court stated:[13]
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
[12] Stanford & Stanford [2012] HCA 52
[13] Ibid paragraph 42
In determining the question of what order, if any, is just and equitable to make altering the interests of the parties in the property, the court is required to undertake the following tasks:
(a)Identify the assets, liabilities and financial resources of the parties to the marriage;
(b)Identify and assess the relevant contributions of each of the parties within the meaning of s 79(4)(a), (b) and (c);
(c)Consider the matters in s 79(4)(d), (e), (f) and (g), including the matters in s 75(2) so far as they are relevant, and determine whether any adjustment ought to be made to the contribution based entitlement of the parties assessed earlier; and
(d)Consider the effect of the above findings and decide whether it is just and equitable to make the order.
ASSETS, LIABILITIES AND SUPERANNUATION INTERESTS
Both parties had input into the creation of the joint balance sheet[14] which is reproduced below:
[14] Exhibit A
Ownership
Description
Husbands value
Wife’s value
ASSETS
Wife
D Street, Suburb E
870,000
870,000
Husband
F Street, Suburb G
600,000
600,000
Husband
B Street, Suburb C
1,150,000
1,150,000
Husband
H Street, Suburb J
650,000
650,000
Husband
K Street, Suburb L
530,000
530,000
Husband
M Street, Town N, NSW
570,000
570,000
Husband
HH Company Shares
10,452
10,452
Husband
JJ Company Shares
8,897
8,897
Husband
KK Company Shares
366
366
Husband
LL Company Shares
1,534
1,534
Husband
BB Bank account #...67
254,185
254,185
Husband
BB Bank account #...91
18,662
18,662
Husband
BB Bank account #...99
5,724
5,724
Husband
BB Bank account #...68
1,850
1,850
Husband
GG Bank account #...50
21,233
21,233
Husband
GG Bank account #...69
34,621
34,621
Husband
GG Bank account #...49
674,317
674,317
Wife
BB Bank account #...22
39,427
39,427
Wife
BB Bank account #...42
2,331
2,331
Wife
Commonwealth Bank account #...30
211
211
Wife
Commonwealth Bank account #...50
579
579
Husband
Motor Vehicle 1
15,000
15,000
Husband
Household contents
2,000
2,000
Wife
Household contents
2,000
2,000
Total
$5,463,389
$5,463,389
SUPERANNUATION
Member
Name of Fund
Type of Interest
Husbands value
Wife’s value
Wife
Super Fund 1
Accumulation interest
79,049
79,049
Total
$79,049
$79,049
NET TOTAL ASSETS (including Superannuation)
$5,542,438.00
$5,542,438.00
The Assets
I find that the total assets, including the wife’s superannuation interest, amount to $5,542,438.00 gross.
The Liabilities
There are no liabilities.
Financial Resource
There are no additional financial resources.
Net Pool of Property
I find that the net pool of property, including superannuation, amounts to $5,542,438.00.
SECTION 79(2) FAMILY LAW ACT
I consider that the situation of the parties in the present case falls squarely within the ambit of the circumstances referred to in the passage already quoted from Stanford. Neither party contended otherwise. The court is satisfied that it is just and equitable to make an order altering the interests of the parties in their property in the circumstances of this case.
CONTRIBUTION ASSESSMENT SECTION 79(4)
The issues in dispute concerning the assessment of contribution in this case are:
(a)The duration of the period of the parties’ cohabitation;
(b)Whether the court will analyse the contributions on an asset by asset basis, which the husband submits is appropriate or on a global basis, which the wife submits is appropriate;
(c)The assessment of contributions including, but not limited to the following particular issues:
(i)The value of the husband’s superannuation at commencement of cohabitation;
(ii)The amount of cash savings held by the wife at commencement of cohabitation;
(iii)The contributions made by the wife to construction of the new residence on the Suburb C property;
(iv)The direct financial contributions made by the wife to the joint expenses of the parties, including whether the wife’s financial contributions assisted the husband to accumulate superannuation during the period of cohabitation;
(v)The extent of the wife’s contributions as homemaker;
(vi)Whether the wife wasted money by gambling; and
(vii)The overall contribution based entitlement of each party.
The duration of the period of the parties’ cohabitation
The application is not straightforward because, although the parties agree they were in a de facto relationship between May 2008 and 2011, the date on which they married, the wife contends that the de facto relationship commenced in 2004, whereas the husband contends that the de facto relationship did not commence until May 2008 when the wife moved into the Suburb C property.[15] The time at which the de facto relationship commenced is, at least according to the manner in which the parties conducted their cases, one of the most important issues in this case.
[15] Husband’s affidavit paragraphs 147, 148
For ease of reference, in these Reasons, the period between 2004 and May 2008 is referred to as the “disputed period”.
The time at which the parties commenced a de facto relationship for the purposes of the Act is a conclusion which is informed by the facts, that is by facts either as agreed by the parties or as found by the Court. For the Court to come to the conclusion that the parties were in a de facto relationship during the disputed period it must be satisfied, in accordance with the relevant standard of proof,[16] that during the disputed period “…having regard to all the circumstances of their relationship…[the parties]… have a relationship as a couple living together on a genuine domestic basis.”[17]
[16] S 140 Evidence Act 1995 (Cth); Briginshaw and Briginshaw and Another (1938) 60 CLR 336
[17] Section 4AA (1) of the Act
Some of the relevant facts that might assist the court to reach its conclusion about whether the parties were in a de facto relationship throughout the disputed period, are set out in section 4AA (2) of the Act, which provides:
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
Section 4AA (3) highlights that no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
Section 4AA (4) provides that:
A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
In Fairbairn & Radecki[18] the High Court considered the meaning of “breakdown of a de facto relationship”, as well as the meaning of a number of words and phrases which appear in s.4AA of the Act, including “living together”. The High Court observed[19] that:
“Living together, consistently with authority, should be construed as sharing a life together as a couple. Section 4AA does not prescribe any way by which a couple may share a life together. Its language is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist. That conclusion is supported by the varied factors listed in s 4AA (2). In a given case, some of the factors in s 4AA (2) may be relevant and some may be irrelevant; some may have greater prominence than others…In particular, s 4AA(2) is a statutory recognition that what may constitute a genuine de facto relationship is not to be determined in the same way in every case by reference to rigid criteria that must always be satisfied. In that respect, the language of s 4AA (2)(b) does not assume that every de facto relationship must have a “common residence” to some “extent” and of some “nature”. Such a construction is entirely denied by s 4AA(3).”
[18] [2022] HCA 18
[19] Ibid at 39
While it was not entirely clear from the wife’s evidence when, in 2004 the parties allegedly commenced a de facto relationship, her Solicitor submitted that she contends that the de facto relationship commenced in mid-2004 upon the parties return from holiday together in Country Z[20].
[20] Written Submission for the Respondent Wife
THE EVIDENCE
The wife’s evidence about when the parties’ relationship was transformed, from “simply boyfriend girlfriend and dating”[21], into a de facto relationship was imprecise and unclear.
[21] Wife’s affidavit paragraph 56
The parties travelled to Europe together and spent about four months there in 2004. It is common ground that before the travel to Europe they were not in a de facto relationship, and nor were they married.[22] Nevertheless the wife annexed a copy of an MM Company overseas travel insurance certificate[23] wherein the parties are noted to have “GOLD/COUPLE” cover, but that evidence does not assist the Court to determine the dispute about when a de facto relationship commenced.
[22] Wife’s affidavit paragraph 56
[23] Wife’s affidavit Annexure H
The wife says that when the parties were in Country Z “I introduced him as my husband to my family and friends.”[24] The husband denies that he was introduced to the wife’s family as her husband. The parties slept in separate beds whenever they were staying with the wife’s family. The husband says that because the wife’s family knew that the parties were not married, the wife was anxious to ensure that her family did not think the parties were having sex.[25]
[24] Wife’s affidavit paragraph 74
[25] Husband’s affidavit paragraph 79
The parties agree that while they were in Country Z they purchased matching rings. The wife says that the husband said to her “I want you to be my wife and I want people to know we are married.”[26] The husband denies that conversation. In cross-examination the husband initially denied that he purchased two rings in City AA at a cost of approximately $50AUD each. His oral evidence was inconsistent with the evidence he provided in his affidavit[27]. He said that his affidavit is wrong, that he went into the store, that the wife had always wanted to buy the rings, and that the rings weren’t very expensive. He remained adamant that the rings were not wedding rings[28]. The wife says that the parties wore their rings for the entire trip, and after they returned to Australia.[29]
[26] Wife’s affidavit paragraph 66
[27] Husband’s affidavit paragraph 79
[28] Husband’s affidavit paragraph 79
[29] The wife annexes at exhibit I a photo which clearly depicts the husband wearing a gold ring on his left hand ring finger in 2004 during the European holiday.
The wife says that the parties discussed marriage and living together while overseas. The wife says that some months after their return to Australia the husband presented her with an engagement ring. The husband denied in his affidavit,[30] and under cross- examination, that he purchased an engagement ring after the parties returned to Australia in 2004. He was shown a receipt for purchase of an “engagement ring with diamonds” for the sum of approximately $1,000 at Suburb NN in late 2004[31] . The husband said “I bought it as a friendship ring. [Ms Deen] called it an engagement ring. I called it a friendship ring.” He said that he purchased the ring on his own, and that the wife was not with him at the time. The husband says that he did not propose marriage to the wife, but agrees that the parties discussed living together in the future.
[30] Ibid paragraph 82
[31] Exhibit K
The wife’s evidence is that after the parties returned from their European holiday they were spending almost of all their days and well into the evening together[32]. The husband denies that that is true.[33] The wife says that the parties continued their sexual relationship at the Suburb G property, and says that she was cleaning for the husband as well as doing his ironing, and changing his bedsheets. She says that the parties’ meals were cooked and eaten at Suburb E with the wife’s family, and that after dinner the parties would leave and go to the Suburb G property so that they could have privacy to engage in sexual relations.
[32] Wife’s affidavit paragraphs, 112 & 114
[33] Husband’s affidavit paragraph 90-91
The husband says that the parties would often go to clubs together to play games and that the wife would play the poker machines.[34] He also agrees that he would go to Suburb E to eat dinner with the wife and then back to his home at Suburb G, but he says that he often ate at home alone. He says that the wife would remain at the club until the early hours of the morning before returning to her home.[35] He denies that the wife cooked for him every day and denies that she cleaned his home. He says that he assisted her to care for her Aunt and Uncle, when he accompanied her to their home while the wife was caring for them.
[34] Husband’s affidavit paragraph 92
[35] Husband’s affidavit paragraph 93
It is common ground that after their return to Australia in 2004 a joint bank account was opened in the parties’ names. The wife says that the parties agreed that the funds would be used to purchase a house in joint names.[36] The wife’s evidence is that she said to the husband “let’s put our money together and start saving for this house.”[37] The husband disputes that the parties agreed to use the joint funds for joint purposes. His evidence is that the wife said to him
“My parents have gifted me $60,000 in cash which they have hidden from Centrelink. The money has been buried in tins in the garden…I want you to put the money into an account in your name. I don’t want Centrelink to know anything about it.”
[36] Ibid paragraph 104
[37] Wife’s affidavit 85
The husband says that he instructed the bank to open the account in his sole name but that the bank opened the account in joint names in error.[38]
[38] Husband’s affidavit paragraphs 113,114 and 117
The parties agree that the wife initially transferred $20,000.00 into the joint account from an account in her sole name. The wife annexes to her Affidavit[39] the opening statement for the joint account. She says that thereafter $60,000.00 was deposited into the joint account. Those funds were accumulated by the wife’s father and were stored in tins concreted into the ground at the Suburb E property.
[39] Wife’s affidavit Annexure K
The wife says that in late 2004 the parties began actively looking to try and buy a house, where they could live together, and which was large enough to accommodate the parties and the wife’s parents and her daughter Ms T. The wife says that by 2005 the parties had found that the properties they were looking at were too expensive and outside their budget. She says that the husband said to her, referring to the Suburb C property, “Why don’t we just knock this old property down and build our house on this land?” She says that the parties commenced looking at exhibition homes across Sydney to find a house design that they liked.
When it was put to the husband in cross examination that, after their return from Country Z, the parties had talked about building a house, he answered “no, not building a house together. It was an investment for me.” The husband was taken to documents which appear to demonstrate that both parties were involved in the arrangements and choices required in respect of construction of the new residence at the Suburb C property between 2005 and 2006. The husband denied knowing why the quotation from CC Building Company was addressed to both parties.[40] When it was put to him that in late 2005 he and the wife both signed a Home Owners Termite Control Agreement[41] he said “we both had to sign it.” He conceded that he was aware that correspondence addressed to both parties was being forwarded in respect of the construction of the house. The husband said “there was nothing I could do about it.”
[40] Wife’s affidavit Annexure N
[41] Wife’s affidavit Annexure O
In mid-2005 the parties obtained a quotation from CC Building Company which was issued to “[Mr Deen] and [Ms Deen]”[42]. The wife says that both parties signed the contract for the building works in 2005. The cost was $295,000.00, plus additional costs to finish the interior of the property including light fittings, tiles, security doors, blinds, flooring and landscaping. It is common ground that the entire construction contract costs were paid from the husband’s savings and not from the joint account. The wife says that she suggested the parties use the money in the joint account but the husband declined to do so, and the wife alleges that he said he was “doing this as a wedding present for you.”
[42] Wife’s affidavit Annexure N
The wife says that between 2005 until about October 2006 she and the husband oversaw the building of the Suburb C property. She says that although the parties continued to live in their separate homes they would spend almost every day together and that they continued their routine of spending evenings together, with the wife returning home to Suburb E each night before her parents and daughter woke up in the morning.
The wife says that during the day she would often go to the building site at Suburb C. She provides evidence about the works that she did on the Suburb C property[43], which the Court will consider later in these reasons when assessing the contributions of each of the parties.
[43] Wife’s affidavit paragraph 142
When it was put to the husband that a five bedroom home had been constructed on the property because the parties needed accommodation for himself, the wife, her daughter and the wife’s parents, he answered “no, it was a good investment for me later on.” When it was put to him that the wife was involved in making choices in respect of how the property would be constructed, he answered non-responsively and said “I chose the bricks.” When pressed, he conceded that the wife was also involved in making choices. The husband again answered non‑responsively when it was put to him that the wife attended at the final inspection, but when pressed said that “she looked at it.” He volunteered the following evidence: “she had a torch for looking for scratches on the tiles. She was looking for trouble. She was always looking for faults with everything.”
The wife says that from 2005 onwards the parties attended many events together with her friends in the Country Z community, and would celebrate house parties and birthday parties with her friends and the parents of Ms T’s friends.
In January 2006 the husband transferred 700 of the wife’s JJ Company Shares to his sole name leaving 31 shares in the wife’s name. The wife says that the husband did this around the time that she went to Centrelink at Suburb S to make a claim for a carer’s pension to assist her to provide care for her uncle who had suffered a stroke. The wife says the husband later sold 31 shares for the wife.
In May 2006 the parties travelled to Queensland together to check on the husband’s investment properties. They stayed at the husband’s brother’s home at Suburb PP. The brother and wife were away. In December 2006 the managing agent of Suburb QQ sent a letter to the parties addressed to Mr and Ms Deen[44].
[44] This used an anglicised form of Ms Deen’s first name which the husband and his family used to refer to the wife: Wife’s affidavit paragraph 159
When the Suburb C property construction was finalised the husband moved into the new residence there. The wife says that she was planning to move into the Suburb C property, but her father fell ill and was hospitalised in 2007, before passing away in 2008. The wife says the plan for the parties to move in together was put back as she needed to deal with her father being ill and her mother being depressed.
The husband continued to spend time with the wife at her aunt and uncles’ home in Suburb S. The parties would mostly have dinner together at Suburb E.
The wife annexes receipts from Australia Post at Suburb E indicating that the rates for the Suburb C and Suburb E properties, in the total sum of $202.25 were paid in cash in 2007. The husband could not recall, when asked about this in cross examination, but said that he used to pay small bills in cash.
The parties went shopping together to furnish the residence at the Suburb C property in mid‑2007. This was around the time that the wife says they started making plans for her to move into the Suburb C property so that they could live together.[45] Clearly some invoices were issued to the wife, at the Suburb C property address. The wife says that she used her funds to pay for these purchases, which total $6,057.00.[46] The wife says that she purchased various goods and some services for the Suburb C property from 2006 onwards [47] and that she paid using her personal savings[48]. The wife estimates that her expenditure on goods and services for the Suburb C purportedly was in excess of $13,750 in cash.
[45] Wife’s affidavit paragraph 176, 177
[46] Ibid Exhibit U
[47] Ibid paragraph 198
[48] Ibid paragraph 199
The husband disputes the wife’s evidence that she paid for the furniture or for the various goods and services. He says that he purchased most of the furniture[49] and that the construction of the Suburb C property was not finalised until 2008[50]. He says that the works had been completed to lock up stage by approximately mid-2007[51]. He denies that the wife paid for the various goods and services for the Suburb C property.
[49] Husband’s affidavit paragraph 136
[50] Ibid 133
[51] Ibid 137
The wife transferred her savings of $20,000 into the joint account in September 2004, and thereafter made cash deposits into the account from the $60,000 which was the gifted to her by her parents. There were no withdrawals from the joint account before it was closed in March 2008 and the funds were transferred into a sole account held by the husband. From 2004 until 2011 the wife was receiving payments from Centrelink, and in the affidavit which the wife supplied to Centrelink[52] she does not tell Centrelink that she had any paid employment during that period. Further the wife deposes that she would use her carer’s pension to buy groceries and petrol, pay for car registration, and other general household expenses. She also used the carer’s payment to meet the outgoings for the Suburb E property[53]. The wife does not explain how it is that, in those circumstances, she was able to save sufficient funds from her only source of income, the Centrelink Carer’s Pension, to spend more than $20,000 on furniture and other goods and services in respect of the Suburb C property during 2006 and 2007, when her annual income during that period was around $20,000[54]. I find the wife’s evidence in respect of her expenditure on those items to be highly implausible.
[52] Wife’s affidavit Annexure AT
[53] Wife’s affidavit Annexure AT paragraph 40
[54] Husband’s affidavit paragraph 165 and Annexure J
I prefer the evidence of the husband, which is that he paid for most of the furniture and for the goods and services required to construct the Suburb C property. The husband’s income was significantly superior to the wife’s throughout the relevant period and he was in a position to make the purchases whereas I find that the wife was likely not in any such position.
In 2008 the husband purchased a right of burial at the O Cemetery at Suburb P to be next to the wife’s mother and father.
In early 2008 Ms T moved into the Suburb C property where the husband was living, at the time with the wife’s brother.
In May 2008 the wife and her mother moved into the Suburb C property and the husband says that this when the parties commenced a de facto relationship.
The wife’s daughter Ms T provided an affidavit in support of the wife’s case[55] and was not cross-examined.
[55] Affidavit of Ms T sworn on 16 November 2020, subject to paragraphs 9, 17-19 and 42 not pressed or omitted following objection, and parts of paragraphs 27, 29, 32 and 35 omitted following objection
I accept the evidence of Ms T that the husband visited the wife at Suburb E on most days from 2000 onwards. Ms T says that by the time she was 16 years old[56] it was clear to her that the parties were in “a romantic relationship”. Ms T says that she liked the husband. She had a friendly relationship with him and he was generous to her. She says that she grew quite close to him because he was a routine fixture in her and her family’s lives and he treated her like a daughter.
[56] She was born in 1987 and turned 16 in 2003.
Ms T says that she had a conversation with the wife, before the parties travelled to Europe together in 2004, during which the wife asked her how she felt about the parties being in a relationship. Ms T deposes that she told the wife that she had no issues with it “if you love him and he makes you happy”.
Ms T says that she noticed that the parties were both wearing rings when they returned from overseas in 2004, and that she had not observed them wearing rings previously. The “engagement” or “friendship” ring was not purchased until late 2004, so Ms T must be referring to rings which the parties purchased in Country Z. Ms T’s evidence is that the wife told her “[Mr Deen] and I are engaged and want to live together. We want you and your grandparents to live there with us.”
Ms T deposes that the wife told her that the parties could not find a house they liked and that they had decided to build one. She says that her grandfather gifted the wife money towards the new home, and that she visited multiple display homes with the parties.
Ms T deposes that after her mother and her grandmother moved into the Suburb C property “My mother and [Mr Deen] slept in the same room, as it was accepted by the family that they were engaged”.
The husband says that up until mid-2008 he stayed overnight at Suburb E on 3 or 4 occasions, and slept separately from the wife, and that the wife did not ever stay overnight in his home at Suburb G.[57] The wife does not dispute that evidence.
[57] Ibid paragraph 97
Credit issues
Neither party was an impressive witness. To be fair to each party, much of the evidence concerned events which occurred more than 15 years ago. I consider it likely that, to some degree, each party has reconstructed what occurred and has preferred a recollection of events that supports their own case.
The husband asserted during cross examination that he’d only been invited to accompany the wife on the trip because “she only wanted half the money for the trip, she wanted to use me, and I was used by her.” The husband said that he realised that he was being “used” in late 2004, when the parties returned from Europe. In answering a question about why, if he felt that he had been “used”, he’d married the wife in 2011 the husband said “I tried to break it off, I didn’t want to get married but she started screaming and going on.” He asserted that he was pressured into marrying. When he was asked why he had never before asserted that he was pressured into the marriage, in any of the three affidavits he has filed in the proceedings to date, he answered “I haven’t made it up. It is the truth”.
I consider that the husband was unfairly critical of the wife, and dismissive of her contributions. He appeared very keen to diminish her in the eyes of the Court, and took every opportunity to advocate his own case and denigrate the wife. At times he gave inconsistent evidence.
Counsel for the husband submitted that the Court will be concerned about the wife’s credit because she has been prepared to make untrue statements to Centrelink in order to advance or to protect her own financial interests.
It is beyond doubt that the wife made an untrue representation to Centrelink about her financial circumstances in late 2004[58], when she had an obligation to be truthful. She represented to an officer of Centrelink that she had cash on hand of less than $5.00 when on the same day she transferred $20,000 from her bank account into the parties’ joint account.
[58] Exhibit R
The wife has deposed in the current proceedings that as at late 2004 she had cash savings of around $50,000, and savings in a Country Z bank account of $7,000-$8,000 and her BB Bank account.[59] Annexed to the wife’s trial affidavit are two other affidavits which the wife affirmed on 23 April 2021 and 29 April 2021 respectively (“the Centrelink affidavits”)[60]. The Centrelink affidavits were prepared, and provided to Centrelink, after the husband alleged, in the current proceedings, that the wife has committed Centrelink fraud. The wife deposes in the Centrelink affidavits that in late 2004 she and the husband opened a joint bank account and that she deposited $20,000 of her savings into the joint account and her parents provided $60,000 to her, which was gradually deposited into the joint account, beginning in 2004 and over the next several years. The wife omits, from the Centrelink affidavit, evidence that she has given in the current proceedings that she had savings of around $57,000 to $58,000 as at late 2004.[61]
[59] Wife’s affidavit paragraph 88. The wife was granted a Certificate pursuant to s.128 of the Evidence Act (Cth.) in respect of the evidence she provided to the court about her savings
[60] Annexure AT to Wife’s trial affidavit
[61] In paragraph 83(c) and (d) of her affidavit the wife deposes that she had savings of up to $58,000.
The wife omits to mention in the Centrelink affidavit that she considers that she and the husband were engaged from 2004, or that she and the husband were in a sexual relationship at any time. The wife informs Centrelink that she and the husband “officially moved in together” in 2008, and in a section headed “Commencement of Cohabitation in the Suburb C property” the wife tells Centrelink that she moved into the Suburb C property in May 2008.
In 2011, shortly prior to the parties’ marriage, the wife attended at Centrelink to report that she had moved in with her “boyfriend” four days earlier. This was untrue, as both parties agree that they were living together in a de facto relationship from at least May 2008.
Clearly the wife’s credit is lacking. However the case is not one which turns entirely on the credit of either party. Many of the disagreements are not about the facts but the inferences that the Court ought to draw from the facts in order to reach a conclusion. However overall I have found the husband’s evidence to be more plausible, consistent and more credible than the wife’s evidence, and more consistent with the documentary evidence which was either annexed to the parties’ affidavits or tendered into evidence.
SECTION 4AA(2) MATTERS
Duration of the relationship
It is an agreed fact that the parties had a de facto relationship from May 2008, when the wife moved into live with the husband at Suburb C, and in 2011 when the parties married. That agreed fact does not assist the court to determine whether the parties were in a de facto relationship during the disputed period.
There are many kinds of relationships. Whether the relationship that the parties had during the disputed period is appropriately characterised as a de facto relationship, a romantic relationship, a sexual relationship, a boyfriend girlfriend dating relationship, or some other kind of relationship is the issue.
Nature and extent of their common residence
It is clear from the High Court’s examination of s.4AA[62] that a common residence is not a decisive factor when determining whether a couple is “living together”. The High Court observed that:
“Living together for the purposes of s 4AA(1) will often, perhaps usually, mean cohabitation of some residence by a couple for some period of time. But cohabitation of a residence or residences is not a necessary feature of “living together”. That phrase must be construed to take account of the many various ways in which two people may share their lives together in a modern world…Two people, for any number of reasons, may not reside in the same residence, but nonetheless be in a de facto relationship in the sense required by s.4AA”
[62] Fairbairn v Radecki [2022] HCA 18
The circumstances of the parties in Fairbairn v Radecki were quite different to the circumstances of the parties in the present case. In Fairbairn v Radecki there was no dispute that the parties had commenced a de facto relationship in late 2005 or 2006. In March 2018 the de facto wife, due to her dementia, was moved into an aged care facility. The question in that case was whether the de facto relationship had broken down and if so by what date. The appellant argued that the parties’ de facto relationship had broken down when the appellant was placed in an aged care facility such that the parties were no longer physically living together. In rejecting that argument the plurality said that:
“It is contrary to the text of s 4AA and to statutory context and purpose to which reference has been made. It is also contrary to real-world considerations. It would be productive of injustice if two people who live apart (including for reasons of health) were incapable of remaining in a de facto relationship.” (emphasis added)
The High Court in Fairbairn v Radecki considered the decision of the Full Court of the Supreme Court of New South Wales in Crabtree & Crabtree [63] and noted that:
“…the Full Court recognised that it was possible for a husband and a wife who maintained “separate residences” to not be living separately and apart, so long as they live in a “single household”….The Full Court drew a distinction between living in separate houses as against separate households” That distinction, it was held, applied to the concept of cohabitation. [64]”
[63] (1963) 5 FLR 307
[64] Ibid, paragraph 36
In the present case each party maintained a separate residence until May 2008 and did not live in a single household together until the wife moved into the Suburb C property. I accept that cohabitation of a residence is not a necessary feature of “living together” for the purposes of s.4AA, and that it is necessary to consider all of the indicia set out in the section.
Sexual relationship
It is not in dispute that the parties were engaged in a sexual relationship, which commenced prior to mid-2004.[65] It does not assist the court to delve into the details of the parties’ sexual relationship, except to note that there is no evidence that the nature of their sexual relationship changed after the time that the wife says the parties commenced a de facto relationship.
[65] Husband’s affidavit paragraph 50; Wife’s affidavit paragraph 26
Apart from occasions when they travelled away from their respective residences, and were able to spend time together overnight in a hotel or another private place, the parties did not stay overnight in the same residence, unless they slept separately, and the wife did not spend any overnight time in the husband’s household until she moved to Suburb C in mid-2008.
Degree of financial dependence or interdependence, and any arrangements for financial support, between them
The husband was a self-funded retiree who lived off his investments throughout the disputed period, and indeed throughout the entire time that the parties cohabited. He had his own bank accounts and made his own spending decisions and paid for his own outgoings. The wife was in receipt of a Centrelink benefit throughout the disputed period. She did not tell Centrelink that she was in a de facto relationship with the husband. The wife had her own bank accounts and made her own spending decisions and paid for her own outgoings[66].
[66] Wife’s affidavit Annexure AT
In late 2004, shortly after they returned from Europe, the parties opened a joint bank account. As noted previously, all deposits made into the joint account came from the wife’s funds, namely from her savings, and the $60,000 stored in tins by her father, and other windfalls that she received. There were no withdrawals made from the joint account during the disputed period. In early 2008 the joint account was closed and the funds were deposited into an account held in the sole name of the husband. Thereafter the parties did not operate a joint bank account.
The wife says that the agreement between herself and the husband was that they would use the funds in the joint account to purchase a house in their joint names. The husband denies that there was any such agreement and he says that the joint account was opened at the request of the wife because she did not want Centrelink to find out about the $60,000 that her father had given her, from the money hidden in tins. It appears that the wife did not inform Centrelink in 2004 that her parents had gifted her the money, and the funds in the joint account were not used to purchase a house or any other property in the parties’ joint names.
Although the contract for the construction of the new residence at the Suburb C property was issued in the joint names of the parties, the Suburb C property is and has at all relevant times been held in the sole name of the husband. At law therefore, the new residence is and has always been the property of the husband, and it is common ground that the husband paid for the construction of the new residence pursuant to the contract.
The wife did grocery shopping for her household, and the husband would eat there often. The wife says that the husband never bought groceries for her household,[67] although in one of her Centrelink affidavits the wife deposes that he did buy grocery items on one or two occasions[68]. There is no suggestion that either party depended on the other party to purchase groceries.
[67] Wife’s affidavit paragraph 121
[68] Wife’s affidavit Annexure AT
There is evidence that on one occasion in 2007 the wife paid in cash her own water bill and the husband’s water bill for the Suburb C property, in the combined sum of $202.45. The husband said in cross examination that he used to pay small bills by cash. This transaction does not indicate any degree of financial dependence or interdependence, or any arrangements for financial support. It is entirely consistent with the wife assisting the husband by paying his relatively small bill at the same time as she went to the post office to pay her own bill, and I cannot discount the possibility that the husband gave the wife the cash to pay his share of the bill. However the husband’s water bill came to be paid by the wife, that circumstance does not demonstrate financial dependence or interdependence, or arrangement for financial support between the parties.
The wife has not demonstrated that there was any degree of financial dependence or interdependence, or any arrangements for financial support, between the parties during the disputed period, and I am not satisfied that there any intermingling of funds during the disputed period.
The ownership, use and acquisition of their property
No joint property was purchased.
Throughout the disputed period the husband owned his home at Suburb G and four investment real properties, his savings and his superannuation. The wife owned the Suburb E property. The wife’s savings had been deposited to the joint account as already noted, and the funds in the joint account were not used by the parties to acquire any property during the disputed period.
The parties spent time at each other’s homes, but at all relevant times they maintained their separate households.
The degree of mutual commitment to a shared life
The parties did some things together which may be considered to be evidence of a mutual commitment to a shared life between 2004 and 2008. The parties travelled to Europe in 2004 and stayed with the wife’s family. They acquired and wore matching rings. The husband purchased an engagement ring, which he calls a ‘friendship ring” for the wife in late 2004. The parties shared meals together, visited the wife’s Aunt and Uncle, participated in and attended at some cultural events and activities, and they went to Queensland together for a few days. All of these activities are also consistent with the parties continuing a romantic relationship as boyfriend and girlfriend dating one another.
There is little credible evidence in favour of a conclusion that the parties became engaged in 2004. The wife says that the husband “presented me with an engagement ring…I accepted the ring. I continued to wear my engagement ring…to about a year after we separated.” [69] The husband denies that the parties became engaged[70]. The wife gives no evidence that she told her friends or her family that she and the husband were engaged. It was only when the wife moved in to live with the husband in mid-2008 that her family accepted that the parties were engaged, and the parties were thereafter able to openly share a bedroom together for the first time.
[69] Wife’s affidavit paragraph 81
[70] Husband’s affidavit paragraph 82
Even if the Court could be satisfied that the parties became engaged at some point during the disputed period, the fact of an engagement does not mean that they commenced a de facto relationship. The significance of an engagement, if there was one, is that it would evidence a commitment on the part of each party to change the status of their relationship at some time in the future. An engagement per se does not transform a relationship into a de facto relationship, in the same way that a commitment to share a household at some time in the future does not, of and in itself transform a relationship.
By the time that the husband had purchased the joint burial lot, in 2018, the parties were clearly preparing to move in together and share their lives, and they commenced cohabitation only a few months later.
Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship
The relationship was not registered.
The care and support of children
There were no children of the relationship. The wife’s daughter lived with the husband from early 2008, and thereafter with both parties from mid-2008, before moving out when she was 20 years old in 2012. The husband certainly did many things for Ms T, and was generous towards her, but there is nothing to suggest that the wife relied upon him to provide any care or financial support for Ms T during the disputed period.
The reputation and public aspects of the relationship
Apart from the evidence of Ms T, there was scant evidence going to the reputation and public aspects of the relationship.
The wife’s evidence is that before the European holiday the parties were “boyfriend and girlfriend” and that she “did not want to have the reputation that that …[she]…was having sex outside of wedlock.”[71] If the wife did introduce the applicant to her family as her “husband” in Country Z in 2004, then any reputation the parties garnered as a married couple at that time was based on a false representation.
[71] Wife’s affidavit paragraph 56
As noted already, the wife’s daughter says that the wife told her, when the parties returned from their overseas trip in 2004, that they were engaged. However Ms T also says that when the wife moved into the Suburb C property in 2008 the parties slept in the same room, “…as it was accepted by the family that they were engaged.” It is common ground that the parties did not share a room together overnight at any time prior to May 2008, unless they were in independent accommodation away from their relatives, because the wife respected the customs of her traditional family.
It is not clear why, if the parties had become engaged in late 2004, that they continued to maintain the pretence that they were not having sexual relations until the wife moved into the Suburb C property in 2008. The parties were able to share a room together in 2008 because the wife’s family apparently accepted that they were engaged. Logically the wife’s family had not accepted that the parties were engaged in 2004.
By 2005 the parties were mutually engaged in the construction project at the Suburb C property. In mid-2005 CC Building Company issued a quotation to build a new home on the Suburb C property in the names of each of the parties. There is no doubt that the parties had had discussions about living together in the future from 2004[72].
[72] Husband’s affidavit paragraph 82
In mid-2006 the parties travelled to Queensland together so that the husband could inspect his investment properties. The wife says that the husband introduced her to the managing agents as his wife[73] , which he denies. It appears that, at some point in time, the managing Agent gained the impression that the parties were a couple, because a letter from the agent dated late 2006 is addressed to ‘[Mr and Ms Deen].”[74] Given that the wife was inclined to represent the parties as a married couple to family in Country Z in 2004, when they were clearly not, in order to maintain her sense of decorum, I consider it possible that the wife may have made representations to others along the way, to the effect that the parties were “married” or otherwise cohabiting, when they were not, and it is equally possible that the agent may have made an assumption that the parties were a couple.
[73] Wife’s affidavit paragraph 157,158
[74] Wife’s affidavit Annexure R
The wife’s evidence overall raises the question of why, if the parties were engaged and did consider themselves to be in a relationship as a couple living together on a genuine domestic basis, they did not simply get married. The wife had the blessing of her daughter, and a marriage would have alleviated the pressure she was under to hide from her parents, for years, the fact that the parties were enjoying a sexual relationship together. The husband and wife could have lived openly as a married or indeed a de facto couple in front of the wife’s parents, but they chose, for whatever reason, not to do so until 2008 when they moved in together.
The wife does not explain why she did not tell Centrelink that she considered herself to be in in a de facto relationship with the husband. I reject the submission that she provided information in her affidavits to Centrelink which clearly set out the nature of her relationship with the husband. By way of example, she omitted to tell Centrelink that she was in a sexual relationship with the husband.
The wife did not contemporaneously inform Centrelink of any change in her relationship status until just before the parties married in 2011.
Conclusion as to the commencement of a de facto relationship
The wife bears the onus of proving on the balance of probabilities that a de facto relationship commenced in 2004, as opposed to 2008 when the husband agrees that the de facto relationship commenced.
The High Court of Australia in Briginshaw v Briginshaw [75] considered the standard of proof on the balance of probabilities which is to be applied in civil cases. Dixon J observed that:[76]
“…when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality…it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved, the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” shall not be produced by inexact proofs, indefinite testimony, or indirect inferences”
[75] (1938) 60 CLR 336
[76] Ibid page 361,362
There is no doubt that the parties were in a romantic relationship between 2004 and May 2008 and clearly they had a plan to live to together as a couple at some future time. The wife’s involvement in making decisions and choices concerning the construction of the new home on the Suburb C property is consistent with the plan that, at some point in the future, the wife would take up residence at the Suburb C property with the husband and they would live together as a couple on a genuine domestic basis. However on a day to day basis the parties’ relationship continued along the same lines as was at the time of their European holiday, when the parties were boyfriend and girlfriend dating. Throughout the disputed period the parties maintained separate households, they did not acquire any joint property, they did not intermingle their funds, and the parties continued to hide their sexual relationship from the wife’s parents. The wife lead a full life in her own domain, providing care for her various family members, including her late uncle and her father, and running her own household, albeit with the assistance of her mother. It appears that until May 2008, the wife was not in a situation where she could have a relationship with the husband as a couple living together on a genuine domestic basis.
Having objectively assessed the circumstances of the parties during the disputed period the Court does not feel an actual persuasion that the parties were in a de facto relationship during the disputed period, and I am not satisfied on the balance of probabilities that the parties were in a de facto relationship at any time before May 2008, when the wife moved in to live with the husband at the Suburb C property.
I find that the parties were in a de facto relationship from May 2008 until they married in 2011, and that thereafter they lived together as a married couple until their final separation in February 2018.
The Court finds that the parties cohabited for a period of nine years and nine months.
WHETHER THE COURT WILL ADOPT A GLOBAL OR AN ASSET BY ASSET APPROACH TO THE ASSESSMENT OF THE PARTIES’ CONTRIBUTIONS
There is very little dispute between the parties about what assets they each owned at the commencement of cohabitation. The husband owned five unencumbered real properties, some savings, superannuation[77], a car and some furniture[78].
[77] Husband’s affidavit paragraph 149
[78] Wife’s affidavit paragraphs 83
The wife owned one unencumbered real property, some savings, a car and some furniture[79].
[79] Ibid paragraph 83
Counsel for the husband submitted that the Court ought to adopt a two pool approach when assessing the contributions to the property of the parties or either of them. Counsel submits that it is appropriate to leave to one side the assets that each of the parties held at the commencement of the cohabitation, apart from the Suburb C property. He submits that the Suburb C property, the manufactured home at Town N and the wife’s superannuation ought to be assessed in a separate pool to the other assets which were held by the parties at the commencement of cohabitation. He submits that neither party asserts that they made a contribution in respect of any asset held by the other at the commencement of cohabitation, apart from the Suburb C property, and the husband concedes that the Town N property was purchased post separation from funds which the wife had contributed to, and that the wife’s superannuation was first acquired during cohabitation.
Counsel referred to the decision of the High Court in Norbis v Norbis[80], and to decisions of the Full Court in Zaruba & Zaruba [81] and Holland & Holland[82] in support of his submission.
[80] [1986] HCA 17; (1986) 161 CLR 513 (30 April 1986)
[81] [2017]FamCAFC 91
[82] [2017]FamCAFC 166
In Norbis their Honours Mason and Deane JJ made the following observation:
“16. Although it is natural to assess financial contributions under s.79(4)(a) by reference to individual assets, it is also natural to assess the contribution of a spouse as homemaker and parent either by reference to the whole of the parties' property or to some part of that property. For ease of comparison and calculation it will be convenient in assessing the overall contributions of the parties at some stage to place the two types of contribution on the same basis, i.e. on a global or, alternatively, on an "asset-by-asset" basis. Which of the two approaches is the more convenient will depend on the circumstances of the particular case. However, there is much to be said for the view that in most cases the global approach is the more convenient. It follows that the Full Court is quite entitled to prescribe that approach as a guideline in order to promote uniformity of approach within the Court. In saying this we are not to be understood as denying the legitimacy of the trial judge's ascertainment in the first instance of the financial contributions of the parties by reference to particular assets. It is difficult to conceive how the trial judge in many cases could otherwise take account of such contributions as he is required to by s.79(4)(a) of the Act. In this respect we agree with the comment of Nygh J. in G and G that, although mathematical precision is certainly not required, there is ordinarily a need to know the circumstances in which assets were acquired and the general extent of each party's contribution to them.
17. The assessment of the parties' entitlements before the making of an order is another question, quite distinct from the assessment of their contributions. As a matter of construction of s.79 Nygh J. is right in saying that the section imposes no obligation on the Family Court to pursue in relation to this issue either the global approach or the asset-by-asset approach to the exclusion of the other. We do not understand the Full Court in the present case to suggest otherwise. What the Full Court asserts is that the global approach is the only "realistic", that is, convenient, means of arriving at the entitlements of the parties. Again, it seems to us that it will depend on the circumstances of the particular case, though in the majority of cases the global approach will be the more convenient and for this reason the Full Court is entitled to prescribe its adoption as a guideline in the majority of cases. The Family Court has rightly criticized the practice of giving over-zealous attention to the ascertainment of the parties' contributions, and we take this opportunity of expressing our unqualified agreement with that criticism, noting at the same time that the ascertainment of the parties' financial contributions necessarily entails reference to particular assets in the manner already indicated.”
The Solicitor for the wife submitted that a global approach was preferable. He submitted that an asset by asset approach is more likely to be adopted where the relationship is a short one, because the intermingling of finances is in some respects a function and a by-product of a lengthy relationship, and the longer the relationship the more likely it is that there will be direct and indirect contributions.
The Court has determined that it is convenient to adopt a two pool approach, rather than a global approach, to the assessment of the contributions of the parties in this case. In coming to its conclusion the Court takes into account that:
(a)The total period of cohabitation and marriage (“the marriage”) was slightly less than ten years, and there are no children of the relationship;
(b)A very substantial proportion of the current net asset pool comprises assets that the husband held at the commencement of cohabitation;
(c)With the sole exception of the Suburb C property, where the parties lived during the marriage, each party kept their respective real property entirely separate from the other;
(d)The parties did not acquire any property jointly during the marriage and there was no significant intermingling of funds;
(e)With the sole exception of the manufactured home at Town N, there is no evidence that during cohabitation, or in the period post separation, either party has made a direct financial contribution to the acquisition of any item of property belonging to the other;
(f)Putting aside the improvements to the Suburb C property, there is no evidence which demonstrates that any increase in the value of real property that each party held at commencement of cohabitation is due to any circumstances other than market forces and is not due to any contribution made by the other party; and
(g)The evidence demonstrates that there have been differing contributions to different categories of assets, and no contribution by one party to some of the assets introduced by the other.
The adoption of a two pool approach will not impede the court assessing, in a holistic way, the contributions that each of the parties has made to the assets in each of the separate pools.
The assets of the parties will be divided into two separate pools for the purpose of assessing the contributions of each of the parties, and noting that the parties agree that there are no financial resources or liabilities required to be considered
POOL A – THE MATRIMONIAL PROPERTY
(H) B Street, Suburb C property $ 1,150,000
(H) Town N property $ 570,000
(W) Superannuation $ 79,049
$ 1,799,049
POOL B – ALL OTHER ASSETS
(H) Suburb G property $ 600,000
(H) Suburb J property $ 650,000
(W) Suburb E property $ 870,000
(H) Suburb L property $ 530,000
(H) HH Company Shares $ 10,452
(H) JJ Company Shares $ 8,897
(H) KK Company Shares $ 366
(H) LL Company Shares $ 1,534
(H) BB Bank account #...67 $ 254,185
(H) BB Bank account #...91 $ 18,662
(H) BB Bank account #...99 $ 5,724
(H) BB Bank account #...68 $ 1,850
(H) GG bank account #...50 $ 21,233
(H) GG bank account #...69 $ 34,621
(H) GG bank account #...49 $ 674,317
(W) BB Bank account #...22 $ 39,427
(W) BB Bank account #...42 $ 2,331
(W) Commonwealth bank account #...30 $ 211
(W) Commonwealth bank account #...50 $ 579
(H) Motor Vehicle 1 $ 15,000
(H) Household contents $ 2,000
(W) Household contents $ 2,000
$ 3,743,389
Contribution assessment
In Dickons & Dickons[83] the Full Court observed, in respect of assessment of contributions, that:
“The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship”
[83] [2012] FamCAFC 154; (2012) 50 FamLR 244
The Court is entitled to look at the whole history of the marriage in order to determine what orders it considers are appropriate altering the interests of the parties to the marriage in property.
Pool A
The husband purchased the Suburb C property in 1977 and the property was owned outright before the commencement of the de facto relationship and later marriage. The wife agrees that the husband paid “for the upkeep of his properties”[84] and “the council rates, water rates and electricity”.[85]
[84] Wife’s affidavit paragraph 225
[85] Ibid paragraph 206
The husband paid the contract price for the construction of the new residence on the Suburb C property. The wife asserted that she made direct financial contributions to the construction of the residence at the Suburb C property, which the husband denied. For the reasons which have already been discussed, the Court prefers the evidence of the husband on this aspect of the matter, which was more plausible than the wife’s evidence given her income at the relevant time and the fact that her savings had or were being deposited into the joint account and there were no relevant withdrawals. I consider that the wife made no significant direct financial contribution to the acquisition or improvement of the Suburb C property.
The wife made some direct non-financial contributions to the conservation of the Suburb C property during and shortly after construction of the new residence[86], in particular scrubbing and removing marks left by the tradespeople, assisting the husband to remove debris, dusting and vacuuming up mess left behind by tradespeople, putting down covers over fixtures to minimise the clean-up, providing refreshments to the workers, and she spent a day on a ladder cleaning external windows to the property.
[86] Wife’s affidavit paragraph 142
The wife’s brother and her father made some direct non-financial contributions to the improvement of the Suburb C property on the wife’s behalf[87], in particular installing tiles on the steps to the front and the back of the house, assisting the husband to install a concrete slab for the air conditioning unit, building brick columns for the fencing to the front of the property, and sealing and painting internal the skirting boards upstairs.
[87] Id
The wife was in receipt of a Centrelink carer’s payment until late 2011. Her income from Centrelink was very modest. The wife says that from about mid-2012 she rented out the Suburb E property for $380.00 per week, and it appears that this was her sole source of income from mid-2012 until she commenced paid employment in 2013.
The husband’s evidence about the wife’s taxable income for the period between 2013 and 2018[88] is not challenged. Noting that her taxable income for 2014 is not known, her average taxable income spread over the four financial years from 2015 to 2018 inclusive was about $45,678 per annum.
[88] Husband’s affidavit paragraph 219
The wife was able to accumulate savings in her BB Bank Cash Management Account and in her BB Bank Retirement Access Plus account. She saved $124,932 in her Access Plus account between May 2012 and October 2017.[89]
[89] Exhibit G
The husband’s average taxable income for the period between 2013 and 2018 was about $46,255 per annum.
Between 2011 and 2017 the husband transferred funds into his superannuation account from his income, which amounted to contributions to the husband’s super totalling $153,095. I accept the submission of Counsel for the husband that the wife’s contention that her support of the husband facilitated the accumulation of his super during the de facto relationship and marriage is not supported by the evidence. The husband was in the position to make contributions to super from income generated from his investments, and he still had income to enable him to contribute to household expenses. The husband also had the benefit of his savings which he had accumulated prior cohabitation.
I am satisfied that both parties contributed income to meet household expenses, with the husband paying for outgoings including council rates and electricity, insurances and the like and the wife and her mother purchasing groceries and household supplies.
The Court has regard to the rent free accommodation which was provided to the wife and her family members. The wife was able to earn income from the Suburb E property, and given that the property was unencumbered the net income was available for household expenses and the wife was also able to save money consistently over the years of cohabitation, as evidenced by her bank account statements.
The wife’s evidence is that she, and her mother, were primarily responsible for homemaker duties, including shopping cooking, washing, ironing, cleaning and lawn mowing, and general household maintenance. The husband sought to minimise, downplay and diminish the wife’s contributions as a homemaker, although it was conceded on his behalf in final submissions that the wife attended to the overwhelming majority of the homemaker duties throughout the de facto relationship and the subsequent marriage, with the assistance of her mother. The husband during cross examination conceded that the full extent of his contribution to the household duties was as described by the wife.
The wife’s overwhelming contribution as a homemaker must be afforded appropriate weight. The husband had the benefit of not having to concern himself with the day to day running of the household, and he was able to concentrate his energies on managing his investments and the income generated from the investments. I consider that the husband benefitted from the companionship that he derived from his relationship with the wife, and his relationships with the wife’s family members and from being included as a part of the wife’s family.
The wife’s contribution as a homemaker must be balanced and given due weighed against all other contributions including the accommodation which the husband provided to the wife and her family members.
The wife continued in her role as a homemaker while working in paid employment from 2013 until final separation (and beyond). The husband continued to benefit from the wife and her mother attending to the majority of the household duties. He was not required to make any changes in his daily routine to accommodate the wife working, nor did he contribute in any significant way to her capacity to work and to earn an income.
The Court considers that the acquisition of and the growth in the wife’s superannuation was due entirely to the wife’s industry, like the growth in the husband’s superannuation balance during cohabitation was due to his. I am not persuaded that the husband made any significant contribution to the acquisition, conservation or improvement of the wife’s superannuation.
The husband concedes that he drew upon the wife’s savings in the BB Bank Term Deposit Account following separation, and used $200,100 to purchase the manufactured home now situated at Town N (“the Town N property”). The purchase price for the Town N property $425,000. The husband concedes that the wife made a substantial contribution to the acquisition of that property. The wife contributed 47% of the purchase price. The husband has had the benefit of living in the Town N property for the past 5 ½ years, to the exclusion of the wife.
The wife has had the benefit of living in the Suburb C property, with her mother, for the past 5½ years to the exclusion of the husband. Until 2020 the husband paid the council and water rates in respect of the Suburb C property and the wife has paid the outgoings since 2020.
The wife has continued to work and accumulate superannuation during the post separation period, in respect of which I consider the husband has made no contribution.
Pool B
Apart from the B Street, Suburb C property, which has been analysed in Pool A, it is uncontroversial that the husband owned the following real properties at the commencement of cohabitation:
(a)The Suburb G property purchased in about 1993. The husband lived at the Suburb G property between late 2002 and 2008 when he moved into the Suburb C property. The Suburb G property was at all relevant times unencumbered. From 2007 onwards the husband rented out the Suburb G property and used the rent to meet his expenses and possibly to increase his savings;
(b)The Town Y property purchased in 2003 which was at all relevant times unencumbered. The husband rented out the Town Y property and used the rent to meet his expenses and possibly to increase his savings. Post separation the husband sold the Town Y property and received $428,086.57. His unchallenged evidence is that he will be liable to pay capital gains tax which is estimated to be between $29,000 and $34,000.[90] The proceeds of sale of the Town Y property are currently held in various bank accounts held by the husband although his evidence was confusing because some of the accounts into which he deposes he deposited the funds are not reflected in the joint balance sheet.[91] The discrepancies were not explored in evidence and there was no reference made in final submissions;
(c)The Suburb J property purchased in 2003 which was at all relevant times unencumbered. The husband rented out the Suburb J property and used the rent to meet his expenses and possibly to increase his savings; and
(d)The Suburb L property purchased in 2003 which was at all relevant times unencumbered. The husband rented out the Suburb L property and used the rent to meet his expenses and possibly to increase his savings.
(e)Proceeds of the sale of the Suburb V property. A Term Deposit in the sum of $460,000 matured in 2004, comprised in part of the proceeds of the sale the Suburb V property, which was purchased by the husband in 1984 and sold in 2004. The husband concedes that at the commencement of cohabitation he had about $300,000 from the sale of the Suburb V property;
(f)Super Fund 2 of approximately $200,000.00;[92] and
(g)A car and some furniture.
[90] Husband’s affidavit paragraphs 247 and 256.
[91] Husband’s affidavit paragraphs 248-255 and Exhibit A
[92] The husband asserted that he had savings of approximately $200,000 and a superannuation entitlement in the sum of $300,000. The wife concedes that the husband held $200,000 in superannuation. He says that it was more but did not produce any evidence upon which the Court can find that it was more than $200,000
In addition to the wife’s superannuation, her own savings, and the cash savings her parents provided to the her in 2004, which are assessed in Pool A, the wife held the following assets at the commencement of cohabitation:
(a)The real property at Suburb E (“the Suburb E property”), which was unencumbered;
(b)A car and some furniture; and
(c)A quantity of savings.
Neither party provided evidence in the form of a retrospective valuation of their real property, and there was no document in evidence which confirms the amount of savings that the wife had at the commencement of cohabitation, or the amount of superannuation that the husband held at that time.
The husband does not assert that he made a contribution of any nature to the Suburb E property.
The wife agrees that the husband paid for the upkeep of his properties[93] and there is no evidence that the wife contributed to the conservation or improvement of the husband’s real properties (apart from the Suburb C property in Pool A) with the possible exception of the Suburb G property.
[93] Wife’s affidavit paragraph 225
The wife says that from 2010, when the husband started to rent out the Suburb G property, between tenants, the husband, the wife and her mother attended at the Suburb G property to clean it and make it ready for leasing.[94] The wife provides no detail as to how many times this occurred, but her evidence, such as it is, is unchallenged.
[94] Wife’s affidavit paragraph 230
During the period of cohabitation the wife accumulated $124,932 in savings, and the husband made payments amounting to $153,095 into his superannuation. The Court has analysed those circumstances when assessing the capacity of each party to make financial contributions to the property in Pool A, and their capacity to make direct contributions to the welfare of the family.
Overall I consider that the wife did not make any significant financial contribution to the accumulation of the husband’s superannuation, even taking into account her contribution to joint household expenses. I consider that the contributions the husband made to his superannuation came from income generated from assets which he had acquired prior to cohabitation and in respect of which the wife made no direct financial contribution during cohabitation.
I also consider that the provision by the husband to the wife, and her mother, of rent free accommodation likely assisted the wife to accumulate savings during the marriage. I take into account when assessing the contributions of the parties to the assets in Pool B, as I have when assessing the contributions to the assets in Pool A, that the wife made the overwhelming contribution as a homemaker which must be afforded appropriate weight, whilst also being balanced against each of the other contributions of the parties.
From separation until mid-2018 the wife drove Motor Vehicle 1. The husband refused to allow her to pay the registration or drive the car, and he arranged to have the car collected by his nephew, a transport worker, leaving the wife without a vehicle. The wife has since had the use of a car owned by her mother or her daughter.
Monies and motor vehicle gifted to the wife’s daughter Ms T
The husband originally contended that the funds advanced by the wife to Ms T ought to be added back into the pool[95]. Counsel for the husband abandoned that contention at the outset of the hearing, and submitted that the gift should be taken into account in the overall assessment of contributions.
[95] Case Outline for the husband
The husband at the very least acquiesced in the gifts for Ms T. Approximately $145,000 was gifted to Ms T by the parties to purchase a real property at Suburb FF. The husband concedes that, of that sum, $114,900 came from funds originally deposited on behalf of the wife into the joint account that was held by the parties between late 2004 and early 2009, in respect of which the husband made no direct financial contribution.[96] The balance of just under $30,000 was paid from savings accumulated by the wife during cohabitation and the wife used a further $25,500 from her savings to purchase a car for Ms T in 2016, and the husband assisted in the process of buying the car.
[96] Husband’s affidavit paragraphs 198-208
I take into account when assessing the contributions of the parties to the assets in Pool B that the husband made an indirect financial contribution in respect of the sum of about $55,500 which was gifted to the wife’s daughter from the wife’s savings during cohabitation.
Alleged waste due to gambling
The husband alleged that the wife “constantly” played poker machines and that “her gambling addiction concerned me”[97]The husband denied in cross examination the wife’s evidence that she had stopped gambling in 2017 after she lost $USD1,800 while gambling on a holiday[98]. The husband was taken to records of the wife’s gambling at Suburb S Club[99], which he agreed was the primary place where the wife gambled. Those records show that the wife gambled between the period of January 2014 and April 2017. The evidence contradicted the husband’s denial, and corroborates the wife’s evidence that her gambling ceased after the holiday in 2017.
[97] Husband’s affidavit 220, 222
[98] Wife’s affidavit paragraph 352
[99] Ibid Annexure AN
Both parties attended the Suburb S Club together and played games and entered raffles and the like. The evidence demonstrates that the overall net effect of the wife’s gambling was minimal. I accept the submission of the Solicitor for the wife that the gambling expenditure is not materially significant to the assessment of the contributions of the parties in this matter.
Overall assessment Pool A
I am satisfied, having assessed the nature, form and extent of the contributions of all types made by each of the parties within the context of their particular relationship, that in respect of the assets in Pool A the contribution based entitlement of the husband is seventy per centum (70%) and the contribution based entitlement of the wife is thirty per centum (30%).
Overall assessment Pool B
I am satisfied, having assessed the nature, form and extent of the contributions of all types made by each of the parties within the context of their particular relationship, that in respect of the assets in Pool B, the contribution based entitlement of the husband is seventy one per centum (71%) and the contribution based entitlement of the wife is twenty nine per centum (29%).
SECTION 75(2) MATTERS
Neither party contended for an adjustment on account of the matters in s.75 (2) of the Act.
The husband was 70 years old at date of hearing. He is nine years older than the wife. He is a self-funded retiree, having ceased work in paid employment in 1998 when he was 46 years old. He discloses an average weekly income of $840 from investments. The husband discloses that his weekly expenses amount to $977.00.
The wife was 60 years old at the date of hearing, and she is employed part time as a health care worker. She discloses an average weekly income of $936 gross from employment and $353 net from her investment property. She is also in receipt of a carer’s allowance. The wife discloses that her weekly expenses amount to $1,126.
The wife’s mother lives in the wife’s household and is in receipt of income in the sum of $513 per week, and she contributes E$60 each week to the purchase of groceries in the wife’s household.
As a result of the orders that the court proposes to make in this matter the husband will retain his home, his four real properties, his shares, some savings, a car and his furniture. The Court is satisfied that the husband will continue to be able to support himself adequately in the future from the income he generates from his investments, and that he will continue to enjoy a standard of living which in all the circumstances is reasonable.
As a result of the orders that the court proposes to make in this matter the wife will retain her real property at Suburb E, her savings, her car and her furniture. She will receive a substantial cash payment from the husband which will enable her to relocate from the Suburb C property and back into the Suburb E property or into alternative accommodation. The Court is satisfied that the wife will continue to be able to support herself adequately in the future from the income she generates from her employment and any investment she acquires using the cash payment from the husband, and that she will continue to enjoy a standard of living which in all the circumstances is reasonable.
The court is satisfied that it is appropriate to make no adjustment in favour of either party pursuant to s.75(2) of the Act.
JUSTICE AND EQUITY
The wife’s Solicitor submitted that the wife remaining in the Suburb C property would be productive of a just and equitable outcome because, notwithstanding that the wife has been gainfully employed, in the post separation period she has not built the same wealth as the husband has due to his alleged “savvy” financial management skills. He concedes that this is partly a function of the wife not having the same capital reserves as the husband.
On behalf of the wife it is submitted that she ought to be able to retain the Suburb C property because she has always treated the property as her home and has lived there since separation caring for her mother, and has always expressed her wish to remain there.
Counsel for the husband submits that the real estate held by the husband increased in value by virtue of market forces, independent of any financial management skills of the husband. He points to the fact that a very substantial proportion of the current asset pool consists of assets that the husband already held at the commencement of cohabitation. The husband sold a property and paid for the construction of the residence at Suburb C and that any increase in value of the husband’s properties other than Suburb C has not occurred as a result of any contribution by the wife.
On behalf of the husband it is submitted that it has always been his application that the wife vacate the Suburb C property upon the payment of a settlement sum, and that the husband retain the property as sole owner, and accordingly the wife has known throughout the proceedings that the husband wished to retain the property and that he seeks an order that she vacate the property.
I consider that the orders which the court will make will be just and equitable in circumstances where the wife will retain the Suburb E property and her superannuation which she acquired during the course of cohabitation. She will also have the benefit of a significant cash payment from the husband and she has the capacity to continue in her employment. There is no evidence that the Suburb E property is inadequate to meet the accommodation needs of the wife and her mother.
Further there is no evidence on the part of the wife that she has the financial resources or the capacity to borrow the funds which she would be required to pay to the husband in order to retain the property, given the court’s conclusion as to the contribution based assessment of each party.
The Court will make an order that the husband transfer to the wife his title in the burial plot at the Suburb P cemetery. It is a plot that is adjacent to the wife’s father’s burial site. The husband was on notice of the wife’s application[100] and she provides evidence in her affidavit as to when, how and why the plot was acquired. The husband made no submission in opposition to the wife’s application. The burial plot is not included as an asset on the balance sheet and I consider that the proposed order is de minimus in terms of the alteration of the parties interests in the property, but very important to the wife. I am satisfied that it is appropriate to make the order which the wife seeks in respect of the burial plot in these circumstances.
[100] Exhibit B
CONCLUSION
The property in Pool A has a value of $1,799,049.
The property in Pool B has a value of $3,743,389.
The combined value of the property in both pools amounts to $5,542,438.
In order to achieve an outcome whereby the husband will receive property with a value equivalent to seventy per centum (70%) of Pool A he will need to receive property valued at $1,259,334.30.
In order to achieve an outcome whereby the husband will receive property with a value equivalent to seventy one per centum (71%) of Pool B he will need to receive property valued at $2,657,806.19.
Overall the husband will receive property with a combined value of $3,917,140.49 to satisfy his contribution based entitlement. This may be achieved by the husband retaining the property which is set out below, and noting that he will be required to pay the wife the sum of $631,700.51 to fully satisfy the wife’s entitlement pursuant to these orders:
(H) Suburb C property $ 1,150,000
(H) Town N property $ 570,000
(H) Suburb G property $ 600,000
(H) Suburb J property $ 650,000
(H) Suburb L property $ 530,000
(H) HH Company Shares $ 10,452
(H) JJ Company Shares $ 8,897
(H) KK Company Shares $ 366
(H) LL Company Shares $ 1,534
(H) BB Bank account #...67 $ 254,185
(H) BB Bank account #...91 $ 18,662
(H) BB Bank account #...99 $ 5,724
(H) BB Bank account #...68 $ 1,850
(H) GG bank account #...50 $ 21,233
(H) GG bank account #...69 $ 34,621
(H) GG bank account #...49 $ 674,317
(H) Motor Vehicle 1 $ 15,000
(H) Household contents $ 2,000
$ 4,548,841
Less payment to wife $631,700.51
Husband retains $3,917,140.49
In order to achieve an outcome whereby the wife will receive property with a value equivalent to thirty per centum (30%) of Pool A she will need to receive property valued at $539,714.70.
In order to achieve an outcome whereby the wife will receive property with a value equivalent to twenty nine per centum (29%) of Pool B she will need to receive property valued at $1,085,582.81.
Overall the wife will receive property with a combined value of $1,625,297.51 to satisfy her contribution based entitlement. This may be achieved by the wife retaining the property which is set out below, and a payment by the husband to the wife in the sum of $631,700.51 to satisfy the wife’s full entitlement pursuant to these orders:
(W) Superannuation $ 79,049
(W) Suburb E property $ 870,000
(W) Household contents $ 2,000
(W) BB Bank account #...22 $ 39,427
(W) BB Bank account #...42 $ 2,331
(W) Commonwealth bank account #...30 $ 211
(W) Commonwealth bank account #...50 $ 579
$ 993,597
Add payment by husband $ 631,700.51
Wife retains $1,625,297.51
OVERALL DIVISION OF PROPERTY
In the overall division of the property the husband will retain almost seventy one per centum (71%) of the net asset pool and the wife will retain will retain just under thirty per centum (30%) of the net asset pool, which I consider is appropriate, just and equitable.
The orders set out at the forefront of these reasons are the orders which are just and equitable in the circumstances of this case.
COSTS
The husband sought an order that the wife pay his costs of and incidental to these proceedings. No party made any submission in respect of costs.
It is not appropriate in my view to deal with the issue of costs until after delivery of judgment and once the parties have had an opportunity to consider the Court’s Reasons.
The orders will make provision for written submissions in support of any application for costs to be provided to chambers and served within 28 days of the date of these orders.
Any submissions in response are to be provided to chambers and served within a further 14 days after service of the applicant’s submissions.
I certify that the preceding two hundred and twenty-six (226) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Carty. Associate:
Dated: 25 August 2023
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