Dekker & Rapallino
[2024] FedCFamC1F 462
•11 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dekker & Rapallino [2024] FedCFamC1F 462
File number: DGC 4162 of 2018 Judgment of: HARTNETT J Date of judgment: 11 July 2024 Catchwords: FAMILY LAW – PROPERTY – Where each of the parties sought an alteration of property interests – Where the property pool is modest – Where the wife failed in her duty of disclosure – Where a s 79(4) of the Family Law Act 1975 (Cth) adjustment is made – Where the wife divested real property to her sister post-separation – Where the wife’s sister refused joinder and where the wife failed to call her as a witness – Where the husband transferred funds to Country B – Where contributions post separation and s 75(2) of the Family Law Act 1975 (Cth) matters favoured the wife – Orders made altering property interests of the parties. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VIII , ss 75, 79, 90SM, 90XT, 102NA, 106A
Family Law (Superannuation) Regulations 2001 Part 6
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Superannuation Industry (Supervision) Regulations 1994
Cases cited: Aitken & Aitken (2023) FLC 94-142
Benson & Drury (2020) FLC 93-998
Burke and Burke (1981) FLC 91-055
C & C [1998] FamCA 143
G v G (2000) FLC 93-043
Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
JEL v DDF (2001) FLC 93-075
Jones v Dunkel (1959) 101 CLR 298
Kowalski and Kowalski (1993) FLC 92-342
Mallet v Mallet (1984) 156 CLR 605
Norman & Norman [2010] FamCAFC 66
Stanford v Stanford (2012) 247 CLR 108
Weir & Weir (1993) FLC 92-338
Zao & Lee [2019] FamCAFC 169
Division: Division 1 First Instance Number of paragraphs: 139 Date of last submissions: 30 April 2024 Date of hearing: 13-15 December 2023; 14-15 & 19 March 2024 Place: Melbourne Counsel for the Applicant: Mr Eley Solicitor for the Applicant: Berry Family Law The Respondent
(14-19 March 2024):Litigant in person Solicitor for the Respondent
(13-15 December 2023):Connley McInnes Lawyers Pty Ltd ORDERS
DGC 4162 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DEKKER
Applicant
AND: MS RAPALLINO
Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
11 JULY 2024
THE COURT ORDERS THAT:
1.Within 60 days hereof, the applicant husband (“the husband”) do all acts and things and sign all documents necessary to transfer to the respondent wife (“the wife”) all his right, title, and interest in the property known as and situate at C Street, Town D in the State of Victoria (“the Town D property”), at the wife’s expense as to conveyancing costs.
2.Contemporaneously with the transfer of the property as outlined in Order 1 above, the wife is to pay the husband the amount of $169,910 (“the payment”) to the Berry Family Law Trust Account.
3.Pending the transfer of the Town D property to the wife and the payment to the husband:
(a)the wife have sole right to occupy the property and shall meet all mortgage repayments, rates and other outgoings for the property;
(b)the wife maintain comprehensive insurance for the Town D property at her expense;
(c)the parties hold their respective interests in the Town D property upon trust for one another pursuant to these orders; and
(d)each party is prohibited by injunction from further encumbering the Town D property without the consent in writing from the other party and existing mortgagee.
4.Each party is prohibited from drawing down on or increasing the balance of the property mortgage without the other party’s consent.
5.If the wife does not make the payment within 60 days hereof, the husband and the wife forthwith do all acts and things and sign all such documents as are necessary to immediately sell the Town D property and for that purpose:
(a)within seven (7) days, the wife nominate three agents to list the property for sale and the husband shall select one agent from the list within seven days of receiving the wife’s nominations;
(b)within seven (7) days the husband nominate three conveyancers/lawyers to perform the conveyancing works and the wife select one conveyancer/lawyer from the list within seven days of receiving the husband’s nominations;
(c)in the event one party defaults on their obligations under this Order, the other party shall make the selection;
(d)if a cost associated with the sale is required to be paid upfront, each party shall pay one half of that cost;
(e)the parties shall jointly determine the method of sale, listing price, reserve price, sale price and terms of sale and in default of agreement the price or term is to be determined by the agent;
(f)the property is to be sold in its present condition save for any repairs or improvements agreed between the parties in writing;
(g)the parties co-operate with the agent in relation to the marketing of the property for sale, including making the key readily available, always allowing inspection of the property as reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection;
(h)both parties are permitted to attend meetings with the agent, to negotiate with any prospective buyer and to attend the property for the auction;
(i)upon agreement being reached for the sale, the parties execute in a timely manner, the Contract of Sale, the Mortgage Discharge Authority, any VOI or other document necessary to complete the sale upon their submission to them by the real estate agent or conveyancer;
(j)the parties do all acts and sign all documents necessary to distribute the proceeds of sale of the property in the following manner and priority:
(i)to pay the costs of the sale, including any agent’s commission and advertising expenses, and the conveyancer’s costs;
(ii)to discharge any mortgage encumbering the property;
(iii)to pay to the husband the payment together with any interest accrued on any part of that payment still outstanding at the rate as provided for in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021; and
(iv)the balance then remaining to be paid to the wife.
6.The wife pay to the husband one half of the four valuation fees incurred by the husband in respect of the single expert valuations of the properties known as and situate at 1 E Street Town F; 2 E Street Town F; C Street, Town D; and G Street Suburb H and such payment be made by the wife to the husband’s solicitors within 60 days of the making of these orders.
7.The Court allocates, as required by s 90XT(4) of the Act, a base amount of $50,000 to Mr Dekker (“the non-member party”) out of the member interest of Ms Rapallino (“the member party”) in Superannuation Fund 1.
8.In accordance with s 90XT(1)(a) of the Act:
(a)the non-member party (or the non-member party’s financial manager, administrators, executors, beneficiaries, heirs or assigns) is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b)the entitlement of the member party in the member party’s superannuation interest (or the entitlement of such other person who becomes entitled to receive a payment out of the member party’s superannuation interest) is correspondingly reduced by force of this Order.
9.The Trustee of the Fund do all such acts and things and sign all such documents as may be necessary to:
(a)calculate, in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the non-member spouse in the immediately preceding clause of this Orders;
(b)pay the entitlement whenever the trustee makes a splittable payment from the wife’s interest in the Fund.
10.This order has effect from the operative time and the operative time is the beginning of the day four days after this order is made.
11.After service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (“the Regulations”) the member spouse shall do all such acts and things and sign all such documents as may be necessary, including but not limited to exercising the non-member spouse’s request in accordance with the Regulations for the transfer or rollover of the non-member spouse’s interest in the member spouse’s name in the Fund.
12.There be liberty to each party and the Trustee of the Fund to apply regarding the implementation of these Orders affecting the interests of the non-member spouse and the member spouse in the Fund.
AND THE COURT NOTES THAT:
A.The value of the non-member spouse’s interest is calculated in accordance with the SIS Regulations; and
B.Any payments from the member spouse’s superannuation interest in the Fund made after the Trustee has created a new interest in the non-member spouse’s name in the Fund are not splittable payments in accordance with the requirement of the Family Law (Superannuation) Regulations 2001.
AND THE COURT ORDERS THAT:
13.Unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these Orders:
(a)each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these Orders with the wife to retain the furniture and household effects in the Town D property;
(b)each party retain their own bank accounts, including any credit card accounts or personal loan accounts;
(c)the parties do all things and sign all documents necessary to close any joint accounts, and any funds remaining in any joint account shall be divided equally between the parties;
(d)insurance policies remain the sole property of the owner named therein;
(e)each party be solely liable for and indemnify the other in relation to all debt and liabilities in their name or attaching to any item of property to which that party is entitled pursuant to these Orders; and
(f)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
14.In the event that any party refuses or neglects to comply with any provision of these orders a Registrar of the Family Court of Australia at Melbourne is hereby appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute all deeds and documents in the name of the party in default and do all things and acts necessary to give validity and operation to these orders.
15.Each party pay their own costs of and incidental to the proceeding.
16.Otherwise all extant property applications be dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 the pseudonym Dekker & Rapallino has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
PRELIMINARY
This proceeding commenced in the then Federal Circuit Court of Australia (now Division 2 of the Federal Circuit and Family Court of Australia) on 11 December 2018 upon the applicant husband (“the husband”) filing an Initiating Application for final and interim parenting orders. The respondent wife (“the wife”) filed a Response to Initiating Application on 4 March 2019 in which she also sought only parenting orders. Thereafter, the wife filed an Amended Response to Initiating Application on 22 February 2022, to include an application for final property orders as sought by her. That Application was out of time making necessary the wife’s seeking of leave to proceed with such Application, with leave being granted on 28 February 2022.
The husband then filed an Amended Application for Final Orders on 4 May 2022, which contained final property orders as sought by him.
An order for the appointment of an Independent Children’s Lawyer was made on 30 January 2019.
The proceeding was transferred to Division 1 of the Federal Circuit and Family Court of Australia by orders made on 10 June 2022.
The matter proceeded for final hearing in December 2023 and ran over the course of six days, being from 13-15 December 2023, 14-15 March 2024 and 19 March 2024. The husband was assisted by an interpreter in the Country B language, although his English was coherent, and his comprehension was competent. His command of the English language had enabled him to prepare and swear his trial affidavit and other material without the assistance of an interpreter.
The wife had legal representation for the trial as funded by Victoria Legal Aid pursuant to a s 102NA of the Family Law Act 1975 (Cth) (“the Act”) order made on 6 April 2023. The wife was legally represented by J Lawyers from 11 July 2023 to 17 November 2023. On 8 December 2023, a Notice of Address for Service was filed by Connley McInnes Lawyers on behalf of the wife. Such representation ceased during the running of the trial after leave was given on 14 March 2024 for the wife’s solicitor to withdraw from the proceeding. At that time, the wife’s solicitor had concluded his cross-examination of the husband. The wife determined to proceed as a litigant in person for the final three days of trial, as she had done for much of the proceeding from 2018.
On 19 March 2024, being the last day of the trial, final parenting orders were made by consent. The child, X born 2012 was the subject of the parenting orders as sought by each of the parties. At trial, X was aged 11 years. She had lived with the wife since the physical separation of the parties on 1 May 2018. The husband had spent only limited, supervised time with X since the parties’ physical separation.
The effect of the 19 March 2024 Orders was relevantly, that the mother have sole parental responsibility for X; X continue to live with her mother; X commence to spend unsupervised time with her father being three nights each week, and otherwise special occasion, and holiday time. The apportionment of time spent with X by each of her parents was approaching equal time though the mother had an extra night with X each week.
In the circumstances of the settlement of the parenting orders proceeding, with that issue taking up a large part of the trial, these reasons for judgment are limited to the Court’s consideration of the property orders as sought by each of the parties.
The property proceeding largely concerned the alteration of the parties’ property interests in the real property known as and situate at C Street Town D in the State of Victoria (“the former matrimonial home”) in circumstances where neither the husband nor the wife had remaining other non-jointly held assets of significant value save for the wife’s superannuation entitlements in respect of which the husband sought a splitting order. Whilst the wife had acquired in her sole name, and during the parties’ cohabitation, three other real properties, she had divested herself of those properties after separation. The wife failed in her obligation of disclosure in respect of her ownership and dealings with these properties, a matter canvassed later in these reasons.
Orders sought
The husband sought final property orders pursuant to s 79 of the Act relevantly that the former matrimonial home be sold with the proceeds being applied to firstly, pay all costs, commissions, and expenses of sale; secondly, to discharge the mortgage and other encumbrances affecting the property; and thirdly, the balance then remaining to be paid to the husband. He sought further that the parties otherwise retain all motor vehicles and monies in bank accounts in their respective sole names; that the former matrimonial home furniture and contents be divided equally between the parties; and that a superannuation splitting order be made such that the husband receive 50 per cent of the wife’s superannuation entitlements.
The wife sought final property orders including that the former matrimonial home, and any other real property in Australia in either of the parties’ names, be transferred to the wife to the exclusion of the husband; that the parties retain all monies in bank accounts, and shareholdings, in their respective sole names; and that the parties each retain their respective superannuation entitlements.
The only superannuation entitlements are those belonging to the wife in Superannuation Fund 1. There was evidence before the Court that the Trustee of the fund had been afforded procedural fairness in respect of the husband’s application for a splitting order.
MATERIAL RELIED UPON
The husband relied upon:
(1)Amended Initiating Application filed 22 November 2023;
(2)his affidavits filed 22 November 2023 and 12 March 2024;
(3)Financial Statement filed 22 November 2023;
(4)affidavit of Mr K (single expert property valuation) filed 22 November 2023;
(5)affidavit of Mr L (single expert property valuation) filed 5 December 2023; and
(6)written submissions filed 23 April 2024.
The wife relied upon:
(1)Amended Response to Final Orders filed 24 March 2023;
(2)her affidavits filed 4 December 2023 and 13 March 2024 (noting that only paragraphs one, two and four were allowed into evidence with the balance of the affidavit material being struck out);
(3)Financial Statement filed 11 December 2023; and
(4)written submissions filed 9 April 2024 and 30 April 2024.
The wife also filed, on 30 April 2024, a Further Amended Response to Initiating Application. This document was not before the Court during the trial and was not relied upon by the wife. No procedural fairness was afforded to the husband in the wife seeking to post the conclusion of the trial, place before the Court further and/or other orders sought by her. No leave was granted for the wife to rely upon this further material; indeed, no application was made by the wife to that effect. In those circumstances, the Court disregards this document which appeared on the Court portal.
RELEVANT FACTUAL FINDINGS
In 1979, the husband was born in Country B. He has lived in Australia since 2011, became a permanent resident of Australia in about 2013, and became an Australian citizen in 2018. He was aged 45 years at trial. The husband was unemployed and in receipt of Centrelink benefits.
In 1983, the wife was born in Country B. She has lived in Australia since 2008 and is an Australian citizen. She was aged 40 years at trial. She is employed as a health professional, working part-time.
The parties married in Country B in early 2011. In late 2011, the wife returned, and the husband relocated, to Australia, where they commenced to live in a property at M Street, Town N in the State of Victoria which the wife rented in her sole name. The husband was able to relocate to Australia on a spousal visa which was sponsored by, and arranged through, the wife.
Upon their relocation to Australia, the wife commenced working and resumed her full-time employment, where she was earning approximately $2,500 gross each fortnight.
The wife asserted that the husband, at that time, coerced her to convert her personal bank account to a joint account held by the parties. She did so. Her income went into the joint account, and later into other accounts as well, and she applied her income to the mortgage secured by the former matrimonial home, and other household outgoings and family expenses. She also applied her income as she saw fit and as the marriage progressed.
In early 2012, the parties purchased the land on which the former matrimonial home would be built for a purchase price of approximately $130,000. In mid-2012, the parties contracted a building company to build the home (the cost to build the house was $185,500). The total cost was approximately $310,000. The parties financed the purchase of the land and the construction of the house with a home loan from P Bank in the amount of $281,770.63; a first homeowners grant in the sum of $26,500; and with savings of approximately $8,000. Among other costs of purchase as incurred by the parties was mortgage lenders insurance of $3,190.63.
Sometime subsequently, on the wife’s evidence, the husband refused to sign documents which would have allowed the parties to reduce the applicable interest rate on their home mortgage from 6.2 per cent to 3.39 per cent. The husband said as to this evidence under cross-examination, that documents were requested by the wife to be signed by him commencing around 2013, but that such documents were to transfer the husband’s interest in the former matrimonial home to the wife, not to reduce the interest rate on the home loan, and that he “did refuse at that time” to sign those documents.[1] His evidence otherwise was that in 2017, the wife sought to re-finance the mortgage and he refused. The purpose of the wife wanting to re-finance on the husband’s evidence was that the wife wanted to buy a property across the railway station to her mother (who perhaps had acquired her own property in Australia, but I can make no finding) and the husband was not supportive of the idea.
[1] Transcript 15 December 2023, p.158 line 42.
In 2012, X, the only child of the marriage, was born. Ten days after X was born, she was diagnosed with two medical conditions. As a result, she required regular treatment by paediatricians, dieticians, and speech therapists, until the age of five.
In late 2012 or 2013, the parties took up occupation of the completed former matrimonial home. The maternal grandparents also occupied this home when in Australia. They assisted the parties in the care of X and the running of their household, throughout 2013 and 2014 for varying periods.
The wife took some maternity leave and cared for X. In that care, she was assisted by the husband and her mother. The wife thereafter resumed full-time work, including shift work, in early 2013.
X was then cared for primarily by the husband who remained at home engaged in home duties including the care of X during those times that the wife was employed. The husband was assisted in some part in his provision of care to X by the maternal grandparents.
In 2013, the husband’s father gave him an amount of $3,100. The husband gave this to the wife to apply to the home loan repayments.
In 2013, the husband commenced to receive Centrelink Benefits being a carer’s allowance in respect of X who had significant health issues from birth. He received the sum of approximately $400 a fortnight, and other family benefits. He applied these monies to X’s food needs, the household expenses and toward the benefit of the family. These Centrelink benefits were received by him until the physical separation of the parties. The husband in the period following continued to receive Centrelink benefits of a different type and in April 2022 until early 2023, he received no or minimal benefits because he was in Country B both caring for his mother who was struggling following the death of his father in 2020, and attending to his own medical issues. During this time the husband did not access monies in his Australian bank accounts but rather from an independent source of income or support for the duration of his stay in Country B.
The parties each assert against the other that in June 2013, the other would not sign a document which would have allowed the family to receive a childcare subsidy in the amount of $2,700. The Court had insufficient evidence before it to make any finding about these competing claims, and in any event, nothing would have turned on this fact.
In late 2013, the wife alleged that an incident occurred in the former matrimonial home during which the husband allegedly kicked the wife’s mother in the chest and then pushed the wife while she was holding the child, causing her to fall backwards into her sister. No injuries were sustained by any party in respect of these allegations. The wife proceeded to obtain a family violence safety notice against the husband for the protection of herself, her mother and the child. The husband denied that he had ever perpetrated family violence. The husband’s mother-in-law remained living in the parties’ home throughout 2013 and 2014.
In 2014, X commenced to attend a childcare centre on a limited basis each week, at a cost in that year of $2,700 as paid by the wife from her income. That attendance at childcare continued during 2017 and 2018.
In 2014, and as admitted by the wife, the wife requested that the husband sign all necessary documents to transfer the ownership of the former matrimonial home from the joint proprietorship of the parties to the wife’s sole name. The wife continued to attempt to coerce the husband to do so up until April 2018. He did not acquiesce to this demand. He claimed the demands had commenced earlier in time.
In 2014, the husband deposited into the wife’s bank account at the ANZ Bank a sum of $4,300 being savings acquired during marriage to apply to the home mortgage.
In August 2014, according to the wife’s affidavit evidence filed 4 December 2023,[2] the wife purchased from her mother an interest in land situated at Q Street, Region R, Country B. The purchase price was approximately 8,250,000 Country B currency (AUD147,398), with a deposit of 1,000,000 Country B currency (AUD17,866.40). It was the wife’s contradictory evidence at trial, that between 2008 and 2011, that is, before she commenced to cohabitate with the husband, the wife paid to her mother a total sum of approximately $18,000 as a deposit on her purchase of the family home in Country B. The wife’s further evidence was that she had made no further payments in respect of this purchase and that the title to the land remains in the name of the maternal grandmother. The wife put no documentary or other corroborative evidence before the Court as to when the wife made the deposit payments to her mother. The wife’s evidence at trial appeared to be truthful evidence however, and the husband did not really challenge it. I accept her evidence that the deposit monies paid by her were monies earnt and held by her prior to the parties’ commencement of their cohabitation. The wife could lose those monies as she has not, to the present time, complied with the terms of the contract but the wife’s evidence is that it is unlikely that her mother would so act. I find such interest of the wife is not a significant financial resource and may never come to fruition.
[2] Wife’s affidavit filed 4 December 2023, paragraph 241 & Annexure ASM-38.
In or around late 2014, the maternal grandmother returned to Country B. Her husband had returned to Country B some time before she left Australia. She would return to Australia from time to time in the years that followed and reside at unknown times in the former matrimonial home, as would the wife’s sister, Ms S, from time to time.
In early 2016, the parties travelled to Country B. They took X to be baptised and to undergo a medical examination. They spent two months in Country B.
Throughout the course of the parties’ marriage, the wife provided for the family financially through her employment as a health professional, working in a full-time capacity until 2016, and then in a part-time capacity. The husband attended to homemaker duties, including caring for X, who was a sick child. The husband also contended he cared for the wife’s sister, Ms S, and the wife’s mother and/or parents during those times that they lived at the former matrimonial home. I accept he did so in small part.
At times between 2015 and 2021, the husband also worked casually in unskilled work and in the health care sector, working for only two months for four to five hours a week in 2015, and averaging less than five hours of work each week in 2016 and the years that followed, up to 2022. He earnt between $4,000 and $10,000 a year on his evidence. He claimed that he provided to the wife around $11,000 in this period to be applied to the home loan repayments. While the wife had decreased her working hours, and increased her caring responsibilities for X, the husband continued to work outside the home very little despite the wife’s desire for that to occur. It was the husband’s evidence that he was unsuccessful in finding employment in other areas despite having two degrees from Country B. The husband attributed his difficulty in finding a job to his poor English-speaking skills but if that were indeed the case, and there is no independent evidence as to that matter, he did not seek to advance them. Beyond his completion of some English language courses in 2012 and/or 2013 as arranged by the wife, to assist in his speaking, reading and comprehension of English, he did not seek out any formal means of improving his English over the next decade.
The husband alleged that the wife and her family subjected him to mental and physical abuse throughout their marriage. It was the husband’s evidence that the wife’s mother told the husband to “’kill [himself]’ otherwise, the family would have to ‘kill [him]’”.[3] The husband also alleged that the wife and her family referred to him as a “servant” and threatened to “send [him] back to [Country B]”.[4] These ongoing threats led the husband to allegedly be fearful for his safety, and fearful that his relationship with X would be compromised.
[3] Husband’s affidavit filed 22 November 2023, paragraph 85.5.
[4] Husband’s affidavit filed 22 November 2023, paragraphs 85.1 and 85.4.
The wife alleged that the husband subjected her to “physical, emotional, verbal, psychological and financial abuse” throughout their marriage.[5]
[5] Wife’s affidavit filed 4 December 2023, paragraph 40.
Between July 2013 and April 2016, the husband sent a total of $50,409 to his immediate family in Country B. Such transfers of funds occurred from the husband’s T Financial Services bank account, and from the parties joint account, and were made without the knowledge or consent of the wife and were forwarded by the husband for the support of the husband’s family. His evidence as to the sum of $4,000 of the funds he transferred to his family was that such monies belonged to him as they represented the initial contribution of $4,000 savings that he “had…when [he] came to [Australia]”.[6] The husband’s evidence otherwise, was that a total of $35,500 of these funds were provided to him in various smaller amounts over time. The provider was his father’s relative and friend “[Mr U]” who “gave it to [him]”.[7] The monies were not a loan and were paid by Mr U to the husband’s father to have medical treatment in Country B. The husband said as to the remaining $10,909 that he had transferred a total of $9,000 from the parties joint account during the 2013 year, and that otherwise the balance had come from the joint account. I do not accept the husband’s evidence and find the $50,409 as sent by the husband to Country B were monies belonging to the parties and obtained from the parties joint account and from the husband’s accounts and cash held by him as acquired during the course of the parties’ cohabitation.
[6] Transcript 15 December 2023, p.163 line 40.
[7] Transcript 15 December 2023, p.160 lines 6-7.
In 2016, the wife purchased three investment properties in her sole name, being 1 E and 2 E Street, Town F (“the Town F units”) for $55,000 each, and G Street, Suburb H (“the Suburb H property”) for $155,000, a total outlay of $265,000 (“the investment properties”). The deposit for the Town F units was paid out of savings and a mortgage was secured to the ANZ Bank for the amount of $50,000 in respect of each property. The deposit of the Suburb H property was paid out of savings and a mortgage was secured to the ANZ Bank for the amount of $140,000. The wife made these purchases at a time when she claimed the family was struggling financially.
The husband alleged that the parties separated under the one roof on 22 September 2017, with both continuing to live under the one roof at the former matrimonial home. The wife alleged that the parties did not separate under the one roof until 9 April 2018. At trial, the husband said that the wife “told [him] to say it like that … it was a threat – threat to me”.[8]
[8] Transcript 14 December 2023, p.58 lines 9-11.
In late 2017, the wife incorporated a company with her sister, being V Group Pty Ltd, with both the wife and her sister being co-directors and 50 per cent shareholders. Rental income from the investment properties was being deposited into V Group Pty Ltd bank account with those funds being thereafter transferred to a bank account held in the name of W Family Trust. This trust is controlled by the wife’s sister Ms S.
In March 2018, the parties arranged a mediation at their friends’ home, with no agreement being reached on either parenting or property matters.
In early 2018, the husband made an application to the Magistrates’ Court of Victoria sitting at Region O for a Family Violence Intervention Order (“IVO”) alleging that the wife was perpetrating abusive behaviour toward him and within earshot of the child, including making death threats. The husband also alleged that the wife was trying to compel him to transfer the former matrimonial home to the wife’s sole name. The husband further alleged that the wife controlled the husband when they were both in the home, including preventing him from eating and sleeping. An IVO was granted on a temporary basis listing the husband as the affected family member. It provided that the wife should not commit family violence against the husband or the child.
In mid-2018, the wife made an application to the Magistrates’ Court of Victoria sitting at Region O for an IVO, alleging that the husband had sexually abused the child. The wife also alleged that the husband had pointed a knife to her stomach during an argument. An IVO was granted on a temporary basis listing the wife and the child as affected family members and contained provisions inter alia that the husband could not enter or remain at the former matrimonial home, nor spend time with the child unless the parties agreed in writing. The parties came to no such agreement, and the husband spent no time with the child from mid‑2018 until late 2019.
In mid-2018 the husband was required to move out of the former matrimonial home. The wife at trial was continuing her occupation of the home, which also housed the child, the wife’s sister for varying times and at will, and, from 2018 until 2020, the wife’s mother.
Orders were made on 30 January 2019 inter alia that the child live with the wife.
Orders were made by consent on 22 July 2019 providing inter alia that the husband spend time with X every alternate Wednesday between 4.00pm and 5.00pm at the Town D Community Hub until supervised time at the Y Contact Centre in Town N could begin.
Supervised contact commenced between the husband and X on 24 November 2019, for two hours once each month at the Y Contact Centre in Town N, with no extra time being agreed upon between the parties until the conclusion of these proceedings on 19 March 2024. At that time, and with interim parenting orders about to be made to operate in the period between the end of the trial and the delivery of judgment, the parties agreed upon the terms of final orders which provided for the child to spend unsupervised and overnight time with the child.
In 2020, the wife withdrew $20,000 from her superannuation account as permitted under the relevant COVID-19 rules and deposited these funds into the V Group Pty Ltd account. Such funds were thereafter transferred by her to the W Family Trust in June 2022 this being, as conceded by the wife, “[Ms S’s] trust”.[9]
[9] Transcript 15 March 2024, p.355 line 32.
In mid-2020, final orders were made in the Region O Magistrates' Court on a without admissions basis in relation to the IVO application made by the wife in early 2018, and the IVO application made by the husband in early 2018. A final IVO was put in place against each of the parties on each of their respective applications for a period of 12 months.
In early 2021, the parties divorced.
In mid-2021, the wife sold the investment properties to her sister, Ms S, as detailed in paragraphs 95 to 102 hereafter. It is probable the wife’s $20,000 superannuation monies were used in this process.
In early 2022, the husband travelled to Country B to assist in his mother’s care. He did not return to Australia until mid-2023.
In June 2022, the wife paid a further $10,000 to the W Family Trust. The wife claimed that her sister repaid $21,000 of the $30,000 advanced by her and is still to pay to her the remaining sum owed of approximately $9,000. There was no documentary evidence of this alleged repayment. The wife subsequently admitted that her financial relationship with her sister was “fluid”.[10]
[10] Transcript 15 March 2024, p.356 lines 14-15.
On 11 October 2023, the husband caused his solicitors to write to the wife’s sister, Ms S, requesting she consent to being joined to these proceedings. The basis of this request was to address the wife’s unilateral removal of the investment properties from the asset pool by transferring them to her sister. The husband’s solicitors received no response to this correspondence.
In November 2023, Z Group completed their historical valuation of the investment properties as of June 2021, being the date, the wife transferred them to her sister, with Mr K of Z Group valuing the Town F units at $85,000 each, and Mr L of Z Group valuing the Suburb H property at $280,000. A total of $450,000. Based on these valuations, the wife sold the investment properties to her sister for approximately $228,420.50 less than the properties then valuation.
LEGAL PRINCIPLES
Section 79 of Pt VIII of the Act gives the Court a broad discretion to adjust the property interests of parties to a marriage.
Section 79(1) of the Act provides that the Court may make such orders as it considers appropriate altering the interests of the parties in property.
Section 79(2) of the Act provides as follows:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
The Full Court has emphasised that having regard to the language of both s 79(1) and s 79(2) of the Act, the Court is required to make orders which are not only “just and equitable” but also “appropriate” (Zao & Lee [2019] FamCAFC 169 at [48]; Aitken & Aitken (2023) FLC 94-142 at [59]).
If the Court is satisfied that it is just and equitable to make an order altering the interests of the parties in property, s 79(4) of the Act sets out the matters which the Court must consider when determining what order (if any) should be made.
The High Court in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) made clear at [37] it is necessary to begin consideration of whether it is just and equitable to make a property settlement order in the particular circumstances of the case by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. In this process, the question presented by s 79(2) of the Act, namely, “whether, having regard to those existing interests, the Court is satisfied that it is just and equitable to make a property settlement order,”[11] must not be merged with, or supplanted by the inquiries under ss 79(4)/90SM(4) of the Act.[12] In determining whether it is just and equitable to make an order, the matters which can be taken into account do “not admit of exhaustive definition.”[13] However, there must be a “principled reason for interfering with the existing legal and equitable interests of the parties to the marriage.”[14]
[11] Stanford v Stanford (2012) 247 CLR 108 at [37].
[12] Stanford v Stanford (2012) 247 CLR 108 at [51].
[13] Stanford v Stanford (2012) 247 CLR 108 at [36] referring to Mallet v Mallet (1984) 156 CLR 605, 608 per Gibbs CJ.
[14] Stanford v Stanford (2012) 247 CLR 108 at [41].
In property proceedings under the Act, parties generally rely upon the “four step process” set out in Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 in the determination of an application under s 79 of the Act, as follows:
1. Identify and value, the parties' property, liabilities and financial resources at the date of the hearing;
2. Identify and assess the contributions of the parties as referred to in s.79 of the Act and determine the contribution-based entitlements of the parties expressed as a percentage of the net value of the property of the parties, whether examined on a global approach or an asset by asset approach;
3. Identify and assess the other factors relevant including, the matters referred to in s.75 of the Act and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
4. Consider the effect of the above and resolve what order is just and equitable in all the circumstances of the case.
The parties to this proceeding seek that the Court make an alteration of their legal and equitable property interests.
Section 80 of the Act grants specific powers to a Court to make a range of different orders to adjust property interests between the parties.
EVIDENCE
Statements of fact in these reasons are findings of fact on the balance of probabilities unless the context indicates otherwise.[15]
[15] Evidence Act 1995 (Cth) s 140.
It is not necessary in these reasons for judgment to comment upon the entirety of the evidence including the evidence of each witness, nor to comment on every exhibit tendered. Nor have I done so. However, every piece of evidence relied upon by the parties has been read and carefully considered by me.
The husband submitted that the wife was generally a poor historian and witness and tended to embellish her evidence when she considered it suited her case. I agree with that submission. The wife’s evidence did not follow a logical path when answering questions about the investment properties and was generally indecipherable. She is firmly of the belief that the husband should receive nothing, and she failed to disclose that which she should have to deny him any entitlement.
The wife’s evidence needs to be considered within the above framework and, where the parties evidence differs, the husband’s evidence is preferred by me unless otherwise indicated.
The wife is clearly aware of the operation of the rule in Jones v Dunkel.[16] This is pertinent as submitted by counsel for the husband, given the wife’s failure to lead evidence from her sister, Ms S. Each of the below were put to the wife and conceded by her in cross-examination:
(1)There was no reason why Ms S couldn’t give evidence in the proceeding.
(2)The wife had previously deposed to Ms S being able to provide an affidavit in the proceeding.
(3)Ms S had provided the wife with support during the litigation.
(4)Ms S provided the wife with support generally, including at changeovers at the supervised contact service.
(5)The wife and Ms S have a ‘fluid’ financial relationship.
(6)Ms S owed the wife money, but the wife was unable to quantify what was owed to her.
[16] Jones v Dunkel (1959) 101 CLR 298.
A significant issue in the proceeding was the wife’s financial relationship with Ms S and the circumstances of the transfer of real properties to Ms S (or trusts controlled by her). The wife failed to lead any evidence from Ms S notwithstanding her evidence would have been relevant and probative in the Court’s determination of those issues.
The husband accordingly sought that the inference be drawn that Ms S’s evidence would not have assisted the wife’s case. I am satisfied that this inference can be drawn.
In the same vein, I find that the husband could have put evidence before the Court from Mr U to corroborate his assertion that Mr U gave him cash payments totalling $35,500. The wife disputed that such monies had come from Mr U whom she claimed resides in Sydney. This was an important issue in the proceeding and the husband could have easily obtained evidence from Mr U to support his claim that for some unknown reason, Mr U provided cash sums to the husband for the husband to then transfer such funds to Country B rather than Mr U doing so directly. I infer that such evidence as would have been provided by Mr U would not have assisted the husband.
THE ASSET POOL
The assets, liabilities, superannuation, and financial resources of the parties are set out below and in the s 75(2) of the Act matters consideration.
Assets
Ownership
Value
C Street, Town D, VIC
Joint
$550,000
W Family Trust
Wife, if any interest
Undisclosed
AA Family Trust
Wife, if any interest
Undisclosed
BB Family Trust
Wife, if any interest
Undisclosed
V Group Pty Ltd
Wife
Unknown
Monies owing to wife from V Group Pty Ltd
Wife
E$10,000
Monies owing to wife from Ms S (being the wife’s asserted interest in the W Family Trust)
Wife
$8,600
Assets subtotal
$568,600
Liabilities
Ownership
Value
Mortgage for Town D Property
Joint
$256,000
Liabilities subtotal
$256,000
Net asset pool
$312,600
Superannuation
Ownership
Value
Superannuation Fund 1
Wife
E$144,000
Superannuation subtotal
$144,000
Financial Resources
Ownership
Value
Right to purchase the wife’s mother’s property in Country B pursuant to sale agreement
Wife
$18,000
Wife’s long service leave entitlements (six months)
Wife
Conceded by the wife as being in existence, value not known nor whether the wife can cash this leave out.
Other matters going to the asset pool.
The wife, after separation, purchased Motor Vehicle 1. The value at trial of the vehicle was $10,000 as estimated by the wife and $20,000 as estimated by the husband. There was no valuation evidence. The wife took out a loan for the purchase of the car and an amount of $9,696.17 remains outstanding on the loan.
In 2009, the husband purchased Motor Vehicle 2. He estimated the value of the vehicle at trial to be $200. There was no valuation evidence.
The husband at the time of trial had an amount of $121 in his bank account.
The wife at the time of trial had an amount of $1,720 in her bank account.
The parties agreed in respect of their motor vehicles and bank accounts that there should be no adjustment as between them. In the above-described factual circumstances, that is entirely appropriate, just and equitable.
The wife failed to disclose documents in respect of her financial interrelationship with Ms S, the W Family Trust, BB Family Trust and AA Family Trust, monies transferred as between the wife, Ms S and those trusts and the transfer of properties at 1 E and 2 E Street, Town F and G Street, Suburb H. This failure was significant because the investment properties, no longer owned by a party to the proceeding, augmented the parties’ assets.
The wife remains involved in the management of the investment properties/family trusts as evidenced by emails passing between her and the accountant for the trusts regarding the preparation of the trust taxation returns.
When challenged on the transactions in relation to the sale of the investment properties and the family trusts, the wife conceded that Ms S “owed her money”; that their financial relationship was “fluid”; that she did not know how much was owing to her; and that she hadn’t disclosed the sum owing to her in any Court documents. The wife submitted in her written submissions after the trial had concluded, that she had an interest in the W Family Trust of $8,600.[17] The wife at no point in the proceeding provided any evidence or disclosure of her having any interest in the W Family Trust. The wife instead stated under cross-examination that W Family Trust was “[Ms S’s] trust”.[18] It is on this basis, the sum of $8,600 is included in the asset pool.
[17] Wife’s written submissions filed 9 April 2024, p.8.
[18] Transcript 15 March 2024, p.355 line 32.
What the Court is left with, as submitted by counsel for the husband, is an incomplete picture and an unquantifiable asset pool given the wife’s failure to properly explain the investment property transactions, her financial interrelationship with Ms S and her involvement in the family trusts. The husband’s position is that given these issues, a significant weighting should be made in his favour.
The wife also asserted that she owed Ms S $50,000 as a ‘document preparation fee’. That claim is rejected by me. There was no evidence led in respect of this loan, or debt, including, as submitted by counsel for the husband:
(1)no evidence of how these fees have arisen or the basis upon which they have been quantified;
(2)no evidence of any loan agreement between the wife and Ms S; and
(3)no evidence of Ms S ever paying any such fees for the wife (especially noting that the wife has been self-represented for the majority of these proceedings), and no Cost Agreement as disclosed by the wife outlining the basis of any fees charged by her previous solicitors.
In Weir & Weir (1993) FLC 92-338 at page 158, the Full Court stated:
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party.
I have concluded that it is not possible to determine the quantum of funds diverted to the wife’s sister by the wife and in the exercise of doing the best I can on the evidence, I will not be unduly cautious about making findings in favour of the husband.
Addbacks
It is well-established that add-backs are “the exception rather than the rule”.[19]
[19] C & C [1998] FamCA 143 at [46].
It was the wife’s evidence that the husband recklessly wasted assets from the matrimonial pool, and specifically alleged that he “recklessly wasted [$75,660] by paying high interest rate” and wasted a further $12,500 because he was “not willing to sign solar”.[20] It is not clear on the evidence that the parties in fact proceeded to install a solar energy system after they disagreed on this matter. Nor is there probative evidence of financial loss. The paying of a higher mortgage interest rate, and the parties’ ability to obtain lower rates, were not findings that could be made on the wife’s evidence alone, in particular without probative evidence from a financial institution addressing the parties’ particular circumstances. I also note the husband’s evidence as to the context of the wife’s requests in respect of the parties’ home mortgage as detailed above in these reasons.
[20] Wife’s written submissions filed 9 April 2024, p.8.
Even if I am wrong as to some of the factual matters put by the wife in this regard, this being a case where the wife’s assertions were often chaotic, the discussions and disagreements between the parties as to the adoption of new interest rates, whether or not to get a solar energy system, and other like matters are not actions of wastage. They are marital disagreements.
It was the husband’s submission that the investment properties ought to be added back to the matrimonial pool. The wife’s sister, Ms S, was not joined to the proceeding by the husband and no adjustment of her property or that belonging to a third-party trust can be considered. I do not propose to add back these properties but rather take them into account, and the wife’s lack of disclosure in respect of them pursuant to s 75(2)(o) of the Act although I note that one of the Town F units was disclosed to the husband following the wife’s purchase of same, as on the husband’s evidence, the husband and X went with the wife to clean the property.
In the same way, I shall consider the husband’s failure to disclose to the wife his removal of approximately $50,000 from the asset pool of the parties.
The investment properties
1 E Street, Town F was transferred to the wife’s sister as trustee for the AA Family Trust, with total funds settled by PEXA being $86,272.30. The wife applied $83,836.50 of the monies received by her from her sister to discharge the Town F units mortgages and paid, herself, the cost of transfer fees and conveyancing costs for her and her sister. The wife also paid the stamp duty incurred by her sister as the purchaser of real property in Victoria.
2 E Street, Town F was also transferred to the wife’s sister Ms S as trustee for the BB Family Trust, with total funds settled by PEXA being $2,655.80. The wife’s sister contributed the sum of $220, making a total payment for the two units of $84,056.50, and the wife paid, herself, the transfer fees and conveyancing costs of the wife and her sister. The wife also paid the stamp duty incurred by her sister as the purchaser of real property in Victoria. Significantly, in respect of this property and 1 E Street, the wife paid stamp duty on a value of $55,000 and not the historical single expert valuation of $85,000 in respect of both properties.
G Street, Suburb H was also transferred to the wife’s sister as trustee for the AA Family Trust, with total funds settled by PEXA being $144,206.81. The wife’s sister paid $137,523.44 of the total monies, of which $137,505.44 was applied to the Suburb H property ANZ bank mortgage (leaving a total of $18 outstanding). The wife contributed $6,683.37 of the monies towards the total funds settled and paid the transfer fees, conveyancing and stamp duty costs of herself and her sister. The property was assessed for stamp duty at a sale price of $160,000 and not on a value as provided by the single expert of $280,000.
The wife had initially refused to engage the single experts in respect of obtaining a historical value of the investment properties or to provide a current value of the former matrimonial home. Ultimately, she agreed to the valuations being obtained but only on the basis that the husband fund the cost of the valuations. The husband’s lawyers have instead paid the valuation invoices and the husband is required to repay them once he receives a settlement sum from this litigation. It is only appropriate, just and equitable that the wife pays one half of the cost of the valuations on all the real properties, such that the husband can repay his financial obligation to his lawyers and the parties share equally in this disbursement. I shall so order.
I accept the expert valuations of the investment properties and of the former matrimonial home and find that the wife transferred the two units to her sister at undervalued prices totalling $85,943.50.
The wife sold the Suburb H property to her sister for less than half of its worth, an undervalue of about $142,477. The total undervalues in price paid by the wife’s sister for her purchase of the investment properties was $228,420.50.
The wife’s evidence was convoluted in respect of these transfers to Ms S. At trial, the wife seemed to suggest that some form of terms contract existed. The wife asserted that she had entered into sales contracts with Ms S in 2018, but that the properties were not transferred until 2021 “just because of the delay in loan approval and communication from the bank and ourselves. I was not in a rush either as I received the money that I needed from [Ms S].”[21] This evidence does not support the wife’s assertion as to any concluded sale before 2021, or terms contracts entered into in 2018. No evidence was before the Court from Ms S to support that which the wife asserted, or even to clarify what transactions had precisely occurred and why.
[21] Wife’s affidavit filed 4 December 2023, paragraph 246.
As best as I can do on the evidence, in all probability the wife paid total deposits for the investment properties of $26,500. These funds were derived from the parties’ funds during cohabitation. The wife then rented those properties, and the rental receipts were applied to mortgage repayments and other outgoings, though in what sum is unable to be found on the evidence. The wife sold the investments properties to her sister for a total undervalue of $228,420.50. The deposit and undervalue amounts total $254,920.50. Additional to this amount is the monies expended by the wife in respect of the costs of transfer from her to her sister which total approximately $11,554.97 and an unknown reduction in the mortgages though probably in fairly minimal sum.
The wife’s superannuation
At the time of the parties’ commencement of their cohabitation, the wife had superannuation entitlements of something less than, but close to, the $19,200 in superannuation she had some four months after the marriage. The husband had no superannuation at the time of the parties’ marriage and acquired none throughout their cohabitation period.
At separation, the wife had a superannuation balance of $99,106. That was an increase of approximately $80,000. 50 per cent of that sum is $40,000. The wife had the use of those funds in her superannuation account to trial although there is no probative material before the Court as to any increase in that 50 per cent share by virtue of the investing of those funds and the passage of time. At trial, the wife had a balance of $144,000 on her evidence. She had withdrawn $20,000 during COVID-19 and transferred those funds to the bank account of V Group Pty Ltd.
The wife seeks no splitting order nor adjustment of other assets of the parties to recognise the husband’s interest in her superannuation monies. It is not appropriate nor just and equitable to leave the wife with a superannuation balance of $144,000 additional to retention of the $20,000 that she transferred out of her superannuation without some percentage adjustment to the husband of that entitlement.
Contributions
In accordance with s 79(4) of the Act, the Court must consider all the contributions, both financial and non-financial, to the acquisition, conservation, and improvement of the parties’ assets, as well as to the welfare of the family during cohabitation and after separation. The Court must consider the contributions in an overall sense (Norman & Norman [2010] FamCAFC 66; Kowalski and Kowalski (1993) FLC 92-342; G v G (2000) FLC 93-043). A broad approach is preferred, rather than reference to precise mathematical calculations (Burke and Burke (1981) FLC 91-055), although an evaluation of each party’s respective contributions is necessary (JEL v DDF (2001) FLC 93-075). Assumptions about equality of contributions should not be made, and there is no assumption that equal division is the starting point for any exercise of the Court’s discretion.[22]
[22] Mallet v Mallet (1984) 156 CLR 605 at [610], [613], [625], [635]–[636], and [646]–[647].
Initial contributions
At the commencement of the parties’ cohabitation, neither of the parties owned assets of significant value. Whilst the husband alleged that the wife owned an interest in agricultural land in Region R, Country B, and the wife alleged that the husband owned an interest in agricultural land in Region R, Country B, neither party produced any evidence to corroborate their claims nor evidence which would lead the Court to find any probability of such ownerships in respect of either the husband or the wife existing. The only relevant reference to property in Country B was the wife’s concession that “her parents have acres of [agricultural land]”.[23]
[23] Wife’s affidavit filed 4 December 2023, paragraph 173.
The wife had $19,000 approximately in superannuation and owned Motor Vehicle 3. The wife had also paid approximately $18,000 to her mother to acquire in the future, the family home in Country B. That home remains outside the parties asset pool and is not a contribution by the wife to the parties assets.
The husband had $4,000 in a bank account when moving to Australia in 2011. However, he returned that sum of money to Country B during the marriage as earlier described.
I find these contributions require no adjustment save that I propose the wife’s superannuation monies be ultimately retained by her.
Contributions during the relationship
During the relationship, the wife worked full time whilst the husband primarily tended to home duties, including carrying out the role of primary caregiver to X. The husband began receiving Centrelink benefits, being a carer allowance “as well as some other payment” which the husband could not recall, in or around January 2014, which he applied mostly toward the family’s expenses.[24] He was employed on a casual basis, being for two months in 2015, and for most of 2016, although only up to approximately five hours a week on average.
[24] Transcript 15 December 2023, p.158 lines 14-15.
The husband generally applied his income toward groceries including milk powder for the child, while the wife applied her income toward making mortgage payments and attending to payment of bills and rates. The husband gave the wife “$3100 in 2013” to put toward mortgage payments,[25] being monies, he had received as a gift from his father.
[25] Transcript 14 December 2023, p.62 line 46.
It was the husband’s contention that he was encouraged not to work, or otherwise encouraged to seek employment in unskilled positions which allowed him flexibility to run errands and perform homemaker duties. He claimed that he was treated as though a servant to the wife’s needs.
The wife alleged that the husband performed only some of the homemaker duties expected of him. It was the wife’s evidence that the husband did not keep the former matrimonial home to a reasonable standard of cleanliness, for example, the lawn was overgrown, and the house was in an embarrassing state to host guests. The wife claimed that she regularly carried out these homemaker duties because the husband failed to do so. The wife also disputed the husband’s claim that she did not encourage him to work. I find that she indicated to him that she would appreciate a second income going into the household and it remained a contentious matter between them.
It was the husband’s evidence that his contributions were made more arduous by family violence perpetrated against him by the wife. The wife, when asked under cross-examination about a time she kicked the husband, responded “I kick him sometimes, but it wasn’t family violence”.[26] She said it was not intended to hurt him. The wife also described hitting the husband on the neck (with a large book) as “I just gave a whack actually”.[27]
[26] Transcript 14 March 2024, p.292 line 40.
[27] Transcript 14 March 2024, p.294 line 41.
It was the wife’s evidence that her contributions were made more arduous by family violence perpetrated by the husband against the wife, including “emotional, physical, psychological and financial abuse”.[28] The husband denied the allegations of the wife as to family violence as perpetrated by him against her.
[28] Mother’s affidavit filed 4 December 2023, paragraph 52.
I find that neither party’s contributions were made more arduous by the conduct of the other on their respective evidence. The wife went to work without difficulty and made the direct and indirect contributions that she did, being financial and non-financial, and those going to the welfare of the family without adverse interference in the form of the husband’s conduct. Likewise, the husband’s contributions were not adversely interfered with by the wife’s conduct. Neither party provided probative evidence, accepted by the Court, sufficient to establish on the balance of probabilities a necessary nexus between the other party’s conduct and their contributions consequently being made more arduous.[29]
[29] Benson & Drury (2020) FLC 93-998 at [35].
I find the parties differing contributions to have been equal.
Contributions post-separation
Following separation, the wife has been the primary caregiver and financial provider to X. Between May 2018 and November 2019, and April 2022 and February 2023, the husband spent no time with the child. The husband has historically made minimal Centrelink or no payments of child support to the wife.
The wife has continued to meet the mortgage and all other payments due in respect of the former matrimonial home since the parties’ separation under the same roof in September 2017, as she has always done. The husband made no contribution to any of these payments in the period between September 2017 and May 2018, when he left the home, despite being in receipt of Centrelink benefits, being a carer allowance “as well as some other payment” which the husband could not recall.[30]
[30] Transcript 15 December 2023, p.158 lines 14-15.
Following the parties’ separation the wife has had the benefit of occupying the former matrimonial home. The husband has had to acquire rental premises.
I find the wife’s post separation contributions to have exceeded the husband’s contributions in respect of her care and support of X.
Conclusion as to contributions
I am satisfied that there should be a contribution adjustment for her post separation contributions in favour of the wife of seven per cent.
Relevant s 75(2) of the Act matters
It is necessary to consider the factors set forth in s 75(2) of the Act so far as they are relevant.
The parties are of similar ages and are both in good health, although the husband has “some [health issues]” which “do not greatly limit [his] capacity to work”.[31]
[31] Husband’s affidavit filed 22 November 2023, paragraph 6.
The wife shall continue to have the primary care of X, though that care is now more equally shared. X has ongoing health issues relating to medical conditions. She is to be reviewed every three years and may require surgery at some point in the future.
The wife is employed part-time as a health professional with a salary of approximately $70,000. If she were to return to full time work in the same role, she would earn approximately $90,000 per annum. Whilst the wife has not returned to full time work post the parties separation in 2018, she has worked overtime and shift work being an onerous workload taken on by her to support X. Indeed, in the financial year ending June 2023, the wife earnt a taxable income inclusive of reportable fringe benefits of $94,441.90.
The husband has failed to exercise his earning capacity to also make provision for the financial support of X. He has also, as a fact, made almost no provision for her support.
The husband has been largely unemployed since moving to Australia in late 2011, save for some periods between 2015 and May 2018 when he worked up to five hours each week in the health sector. He is in receipt of Centrelink benefits and has been since January 2014 same for his period of residence in Country B in 2022/2023. During that time, he made no financial provision for X. His Centrelink benefits as of 22 November 2023 were Jobseeker, Rent Assistance and Energy Supplement payments.[32]
[32] Husband’s Financial Statement filed 22 November 2023, p.3.
It was the husband’s evidence that, though he enjoyed a “good job” and had professional qualifications in Country B, his qualifications are not recognised in Australia.[33] The husband however has other Australian qualifications. On his own, evidence he “completed certificates in […] ([in] 2012) and […] ([in] 2013)”.[34]
[33] Husband’s Outline of Case filed 11 December 2013, p.16.
[34] Husband’s affidavit filed 22 November 2023, paragraph 20.
Given his various qualifications, the husband has a capacity to earn an income, a capacity which he is not exercising. It is however unclear, precisely what the husband’s earning capacity is. The husband has professional qualifications from Country B, being two degrees, and he worked as a professional in Country B. He has also obtained his qualifications in Australia. He asserted that he is unable to use his qualifications in Australia to gain employment. This does not reasonably explain why he has remained unemployed since leaving the former matrimonial home in May 2018, and thereby ceasing to be involved in the child’s care (whether voluntarily or involuntarily) from then until March 2024. The husband’s period of unemployment to that time was of almost six years, with an extended period back in Country B. There is no doubt that this significant period of chosen unemployment reduces his earning capacity.
The husband can at the least, work in the health care sector. Whilst his earning capacity may not exceed that of the wife’s, and may be less, he has a clear ability to support himself and contribute to the support of the child in far greater measure than he has done.
The wife has paid to CC Financial Services a sum of $8,000 to assist her in meeting the payment of X’s secondary school expenses at DD School, being a private secondary school that the parties anticipate X shall be enrolled in to commence in 2025 and conclude in 2031. The wife will in all probability pay all, or a majority share of those school fees.
The wife’s non-disclosure was significant, as was the husband’s but to a lesser extent. There should have been added to the asset pool a sum of approximately $266,475.47 on the wife’s side (see paragraph 102 above) and $50,409 on the husband’s side (see paragraph 42). This would have resulted in a notional asset pool available for division between the parties of $312,600 plus $266,475.47 plus $50,409 being $629,484.47 approximated to $629,484. It is that figure that I propose to use in determining the parties’ alteration of their property interests.
Conclusion as to s 75(2) matters
These matters favour the wife, despite the s 75(2)(o) of the Act consideration of non-disclosure, because of those matters going to her care and support of X. I determine an adjustment of a further 8 per cent is warranted in her favour.
CONCLUSION
In this case, the assets are in essence only the former matrimonial home and the wife’s superannuation. The parties concede there is minimal value in the household contents, which are not valued, and which remain with the wife, the husband having not sought any particular items of furniture despite his seeking 50 per cent of such furniture. Further, there is no significant value in the parties’ equity in their motor vehicles.
I am satisfied in all the circumstances of the matter that it is just and equitable to make orders for an adjustment between the parties as to 65 per cent to the wife and 35 per cent to the husband. Such orders to achieve that are, on the facts of the case, appropriate. The asset pool is not large, such that each percentage produces a relatively small adjustment. When looking to a monetary outcome, that apportionment provides to the husband a sum of $220,319.40 of the notional figure. From that must be deducted the sum of $50,409 leaving a payment to the husband of $169,910.40. The wife will be left with notionally and in reality as I find it, an amount of $459,573.60 available to her and have the opportunity to have transferred to her the husband’s interest in the former matrimonial home. The adjustment between the parties is thus $289,663.20 in the wife’s favour.
Additional to the adjustment of the parties interests in the former matrimonial home the wife will be required to transfer to a superannuation fund in the name of the husband an amount of $50,000 in respect of her superannuation accrued to the trial date. This is a 34.7 per cent adjustment to the husband which in the circumstances of the case I consider just and equitable, and an appropriate order.
I certify that the preceding one hundred and thirty-nine (139) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 11 July 2024
9
5