Dellas & Halton
[2022] FedCFamC1F 368
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dellas & Halton [2022] FedCFamC1F 368
File number(s): MLC 564 of 2021 Judgment of: MCNAB J Date of judgment: 26 May 2022 Catchwords: FAMILY LAW – PROPERTY – small property pool – property settlement and disbursement – where there are two children of the de facto relationship – where both parties made financial contribution – where the total value of the net asset pool is disputed Legislation: Child Support (Assessment) Act 1989 ss 124, 123(1) (a).
Family Law Act 1975 ss 90XT(1)(a), 90SM.
Family Law (Superannuation) Regulations 2001.
Cases cited: Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52. Division: Division 1 First Instance Number of paragraphs: 70 Date of last submission/s: 1 February 2022 Date of hearing: 2 February 222 Place: Melbourne Counsel for the Applicant: Mr T Moisidis Solicitor for the Applicant: Rowan Skinner and Associates Solicitor for the Respondent: Litigant in person ORDERS
MLC 564 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DELLAS
Applicant
AND: MR HALTON
Respondent
ORDER MADE BY:
MCNAB J
DATE OF ORDER:
26 MAY 2022
THE COURT ORDERS THAT:
1.Upon settlement of sale of the Suburb B property as provided for in the orders of 6 December 2021, the proceeds of sale be disbursed in the following order and priority:
(a)to pay the agent’s commission, marketing and legal costs of sale, and expenses, estimated to be $15,000;
(b)the net balance to be divided as follows:
(i)pay the Respondent an amount which represents 40 % of the net non- superannuation property of the parties, as set out in the table annexed to these orders and marked ‘ANNEXURE A’, less the property to be retained by the Respondent and adjustments made against him, as set out in the table annexed to these orders and marked ‘ANNEXURE B’; and
(ii)the balance to the Applicant, to be held in the Applicant solicitor’s trust account.
2.The Applicant retain as her sole property to the exclusion of the Respondent:
(a)her motor vehicle 1;
(b)her part property settlement of $26,000;
(c)all bank accounts held in her name; and
(d)her personal belongings and effects.
3.The Respondent retain as his sole property to the exclusion of the Applicant:
(a)his motor vehicle 2;
(b)his vehicle 3;
(c)his part property settlement of $61,278.61; and
(d)all bank accounts held in his name.
4.From the date of these orders, the parties shall each indemnify and keep the other indemnified in respect of their personal credit cards and any past, present and future personal liabilities, including to the Australian Taxation Office.
5.In accordance with section 90XT(1)(a) of the Family Law Act 1975 (“the Act”), whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of the Applicant, Ms Dellas, from her interest in Super Fund 1 (“the SF”), the Respondent, Mr Halton, is entitled to be paid (by the Trustee of the SF) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $69,232.00, and there is a corresponding reduction in the entitlement Ms Dellas would have had but for these Orders.
6.The operative time for Order 5 is four (4) business days after service of a copy of the sealed final orders on the Trustee of the SF.
7.The Trustee of the SF shall do all such acts and things and sign all such documents as necessary to:
(a)calculate, in accordance with the requirements of the Act, the entitlement awarded to the Respondent in Orders 6 of these orders; and
(b)pay the entitlement whenever the Trustee makes a splittable payment from the Applicant’s interest in the fund.
8.Until such time as the superannuation split to the Respondent pursuant to Orders 6 to 8 inclusive can be rolled over into a separate account of the Respondent:
(a)the Applicant provide to the Respondent no less than 28 days’ notice before such time as she elects to retire and/or take a voluntary retirement and/or for any reason accept or become entitled to access in whole or part her entitlement in the Fund;
(b)the Applicant forthwith direct and authorise the Trustee to communicate with the Respondent and/or any person authorised in writing on his behalf:
(i)to answer any reasonable queries as may be made by him or on his behalf from time to time in relation to her entitlement in the Fund; and
(ii)to provide to the Respondent and/or the authorised representative, a copy of any notice or any application or request by the Applicant which seeks the release of her entitlements in the Fund, insofar as that release may affect the Respondent’s entitlements in or to the Fund pursuant to these Orders.
9.Having been accorded procedural fairness, this Order binds the Trustee of the SF to observe the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.
10.The parties do all such things and sign all such necessary documents to give effect to the terms of these orders including the signing of any transfer and statutory declaration documents.
11.Unless specified to the contrary in this Order:
(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 at the date of this Order;
(b)money standing to the credit of either party in any bank or other account remains the property of the account holder
(c)monies standing to the credit of the parties in any joint bank account are to be split equally between the parties;
(d)each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(e)any insurance policies remain the sole property of the owner named in the policy;
(f)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(g)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
“ANNEXURE A”
Net non-superannuation of the Parties
Property Ownership Value N Street, Suburb B (‘the Suburb B property) Joint $845,000.00 (gross sale price) Real Estate Agent Commission, Marketing and Legal Cost of Sale Joint (E$15,000.000) motor vehicle 1 Applicant $10,000.00 motor vehicle 2
Respondent
$37,500.00 (per V Company valuation of 18 August 2021) vehicle 3
Respondent
$31,500.00 per Q Pty Ltd valuation of 20 April 2021) Part property settlement of term deposit Applicant $26,000.00 Part property settlement of term deposit Respondent $61,278.61 Savings Respondent Nominal Savings Applicant Nominal Net total excluding superannuation E$996,278.61 “ANNEXURE B”
The property retained by the Respondent
Property Ownership Value motor vehicle 2 Respondent $37,500.00 (per V Company valuation of 18 August 2021) vehicle 3 Respondent $31,500.00 per Q Pty Ltd valuation of 20 April 2021) Part property settlement of term deposit Respondent $61,278.61 Net total excluding superannuation E$130,278.61 Adjustment for W Centre fee paid by the Applicant Respondent $410.00 Adjustment for pool cleaning for sale of the Suburb B property Respondent $537.50 Adjustment for O Company invoice for the transfer of the Suburb B property Respondent $1,249.87 Adjustment for P Pty Ltd invoice Respondent $330.00 Adjustment for costs order Respondent $6,882.00 Net total including adjustments $139,687.98 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 the pseudonym Dellas & Halton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCNAB J:
INTRODUCTION
This proceeding comes before the Court by way of an Initiating Application filed on 20 January 2021 by the Applicant de-facto wife (“the wife”) to effect a division of property interests pursuant to section 90SM of the Family Law Act 1975 (Cth) (“the Act”).
The primary item in dispute is the property located at N Street, Suburb B, Victoria (“the Suburb B property”).
In this matter I must make a decision as to how the parties’ property should be fairly and equitably divided. The value of the total net asset pool is disputed. The wife submits the total value equates to approximately $1,649,523 including superannuation whereas the Respondent submits it should be valued at approximately $1,590,023 including superannuation.
This matter was listed for final hearing on 2 February 2022. The applicant was represented by Counsel and the Respondent de-facto husband (“the husband”) appeared in person with the assistance of his cousin who acted as a McKenzie friend.
BACKGROUND
The wife and husband are both 46 years of age. They commenced cohabitation in 1995 before separating for the first time in 2000 for 18 months. The parties recommenced cohabitation in 2002. They finally separated on 5 January 2020.
The period of cohabitation was approximately 23 years. The parties have two children aged 16 and 18. Neither of those children are currently spending time with the husband.
The wife is employed as a public servant. The husband is unemployed and his mental health has deteriorated over the last two years. He submits that he is suffering from post-traumatic stress disorder, depression, anxiety and paranoia. The wife contends that the husband has significant issues arising from the use of illicit drugs. Whatever the cause of the husband’s health issues, it is not in dispute that he does have serious health issues.
By an application supported by an affidavit dated 21 January 2022, the husband sought leave from the Court to have his cousin, Ms C, be appointed as his Litigation Guardian to assist him in these proceedings. That application was refused but leave was granted to Ms C to act as a McKenzie Friend and she provided assistance to the husband in that role.
The parties have two children together, namely X born in 2003 and Y born in 2005 (collectively referred to as “the children”). Neither child is currently spending time with their father.
CHRONOLOGY
Both the Applicant and Respondent provided to the Court a chronology of events in their outlines of case prior to the final hearing. The chronology is set out as follows:
Date Event 1975 Date of birth of the Respondent (now aged 46). 1975 Date of birth of the Applicant (now aged 46). 1995 Parties commenced cohabitation for the first time. 2000 The parties purchase R Street, Suburb T (“the Suburb T property”) for $135,000. 2000 Parties separate for 18 months.
The parties sell the Suburb T property shortly after separation.2002 Parties commence cohabitation for the second time. 2003 The parties purchase N Street, Suburb B for $275,000, with a mortgage of about $220,000. The parties each contributed about $30,000 to $35,000 to the purchase. 2003 The first child of the parties X is born (now aged 18). 2005 The second child of the parties Y is born (now aged 16). 2012 The Respondent purchased vehicle 3 second hand for approximately $38,000. 2010 to 2015 The Respondent contends that his parents loaned him small amounts of money totalling $45,000 which he deposited into the parties’ joint offset account. 2018 The Respondent receives a redundancy payment of about $80,000, which is used to pay down the mortgage on the Suburb B property to approximately nil. 2018 The Respondent pays $10,000 to his mother which he contends was repayment of the loan from his parents of $45,000. 2018 The Applicant receives a gift of $50,000 from her father which she deposits into the parties’ joint term deposit. 5 January 2020 The parties separate on a final basis.
The Respondent moves out of the Suburb B property and into his mother’s residence about one week later.2020 The Respondent is charged with assault on the Applicant.
The police issue a Family Safety Notice with the Suburb S Magistrates Court.3 April 2020 The Respondent withdraws $61,278 from the parties’ joint term deposit, which he says of which $35,000 was for the repayment of the remaining loan amount owing to the Respondent’s mother, and $26,278 being the Respondent’s 50/50 share of the remaining joint funds.
The applicant withdraws the remaining $26,000.6 April 2020 The Respondent transfers $30,000 from his personal bank account to his mother’s bank account in relation to repayment of the loan outstanding. July 2020 Y commences residing full-time with the Respondent until 26 December 2020.
Y then lived equally between the parties on four nights on and four nights off basis.31 August 2020 The Applicant moves out of the Suburb B property. 29 December 2020 The Applicant resumes full-time care of both children. PROCEDURAL HISTORY
On 20 January 2021, the applicant filed an Initiating Application commencing proceedings in the Federal Circuit Court of Australia.
On 10 February 2021, the applicant applied to have the twelve month final intervention order extended and varied to include the children as ‘Protected Persons’.
On 9 March 2021, the Melbourne Magistrates’ Court ordered the extension of the full intervention order on an interim basis for three months, pending a decision to include the two children as Protected Persons.
On 19 March 2021, a final 12 month full intervention order is made against the respondent in favour of the applicant. The application for the two children to be included is refused.
At a directions hearing on 24 March 2021, a Judicial Registrar made the relevant orders that:
(1)the Suburb B property is to be valued by D Company;
(2)the vehicle 3 is set to be valued by Mr E;
(3)the parties are to attend mediation with Mr F; and
(4)the parties are to exchange disclosure.
On 12 May 2021, the parties attended mediation with Mr F.
On 2 June 2021, the full intervention order is extended against the respondent in favour of the applicant until 2 June 2023, without the consent of the Respondent.
At an interim hearing on 6 December 2021, the Court made the following orders in relation to the matrimonial property:
1.Within 48 hours of the date of these orders, the Respondent do all such acts and sign all documents necessary to transfer to the Applicant all of his right, title and interest in the real property situate and known as [N Street, Suburb B] (“the [Suburb B] property”) to be held on trust on behalf of the Applicant and Respondent for the purpose of the sale of the [Suburb B] property, (“the sale”).
2.The Applicant be authorised by these orders to sign all such documents and do all such acts necessary to transfer the Respondent’s right, title and interest in the [Suburb B] property from the Respondent to herself for the purposes of the sale of the [Suburb B] property, the legal costs of the transfer to be paid by the Respondent.
3.The Applicant be solely at liberty to engage the selling agent, [Mr G] of [H Company], to affect the said sale on such terms and conditions as determined by the Applicant, with a reserve price of $800,000.00.
4.Upon the sale of the [Suburb B] property, the Applicant be at liberty to sign all documents to give effect to the sake and settlement thereof, including the transfer of land pursuant to the requirements of [U Company], on her own behalf and on behalf of the Respondent.
5.The Applicant be at liberty to effect any repairs and maintenance recommended by the selling agent in relation to the property, prior to the sale of the [Suburb B] property, with the parties to be equally responsible for payment of the costs of any such repairs and maintenance affected by the Applicant, with the Applicant Wife to pay at first instance and the Respondent’s share of the repairs/maintenance expenditure expenses to be paid out of his share of the settlement proceeds.
…
9.The trial of the proceeding be adjourned to 2 February 2022 at 10.00am for final hearing (with an estimated hearing time of 1 day).
10.The Respondent pay the Applicant’s costs fixed in the sum of $6,882.00.
On 13 December 2021, the respondent’s cousin Ms C, commenced management of the respondent’s personal and health matters.
On 23 December 2021, the respondent’s driver’s license was suspended by VicRoads as his health condition does not meet the national medical standard.
MATERIAL RELIED UPON
In her amended outline of case filed on 1 February 2022, the applicant said that she relied upon the following documents for the final hearing:
(1)further amended initiating application filed 3 December 2021;
(2)trial affidavit of Ms Dellas filed 17 November 2021;
(3)affidavit of Ms Dellas filed 3 December 2021;
(4)affidavit of Ms Dellas filed 22 January 2022;
(5)amended financial statement field 17 November;
(6)affidavit of single expert witness Mr J filed on 17 November 2021; and
(7)affidavit of single expert witness Mr K filed 17 November 2021.
In his outline of case filed on 31 January 2022, the respondent said that he relied upon the following documents for the final hearing:
(1)affidavit of Mr Halton filed 30 January 2022;
(2)affidavit of Ms C filed 30 January 2022;
(3)affidavit of Mr Halton filed 24 January 2022;
(4)affidavit of Ms C filed 24 January 2022;
(5)application in a proceeding filed 19 January 2022;
(6)trial affidavit of Mr Halton filed 15 January 2022; and
(7)financial statement filed 15 January 2022.
THE PARTIES’S PROPOSAL
The applicant in her written submissions proposes that a just and equitable division of property would give rise to a 62.5:37.5 split in her favour.
The respondent in his written submissions submit that a 60:40 split in his favour would be just and equitable in these circumstances.
THE COURT’S APPROACH TO DE FACTO PROPERTY PROCEEDINGS
Section 90SM(3) and (4) of the Act provide that:
(3)The court must 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.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii)otherwise in relation to any of that last‑mentioned property;
whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii)otherwise in relation to any of that last‑mentioned property;
whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them;
(c)the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and
(e)the matters referred to in subsection 90SF(3) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.
As is the case when considering matrimonial property, when considering orders in relation to de facto property the court is required to consider:
(a)whether the parties have separated;
(b)the assets and liabilities of each party;
(c)the contributions of each party;
(d)the future needs of each party taking into account the matters set out in subsection 90SF(3) so far as they are relevant;
(e)bearing in mind all of the foregoing matters, whether it is just and equitable to make any orders altering the interests of the parties in their property; and
(f)what orders, if any, are just and equitable in all the circumstances of the case. (Stanford & Stanford(2012) 247 CLR 108. ).
In this case the parties agree that they have separated and neither contend that there should not be a division of the de facto property.
MATTERS IN DISPUTE
The following issues have been raised by the wife as matters in dispute:
(a)whether $35,000 of a total of $61,278 withdrawn from the parties joint bank account were funds loaned by the husband's parents and repaid by him;
(b)whether there should be an adjustment in the sums allocated to each party to take into account the costs of having a swimming pool cleaned for the purpose of the sale of the property. The wife is seeking an adjustment of $537.50 against the husband to half the cost of that swimming pool cleaning;
(c)whether there should be an adjustment of $1249.97 to take into account the cost of transferring the Suburb B property into the wife's name by reason of the orders made on 6 December 2021;
(d)whether half the costs of a mediation centre be adjusted to take into account $410 being the husband half share which he hasn't paid;
(e)whether the costs order made on 6 December 2022 in favour of the wife in the sum of $6882 should be paid from the proceeds of sale; and
(f)whether the court should take into account as a contribution, the costs of the wife renting a house after separation (rather than remaining in the family home) and whether this cost represents a negative contribution on the part of the father in the sum of $39,550 being the accommodation costs for the wife and children.
The husband raised the following issues as matters of dispute:
(a)the value of motor vehicle 2 in his possession where he says that its true value is $32,000 rather than the wife's valuation of $37,500;
(b)the value of the vehicle 3 which he says should be valued at $22,500 rather than the value ascribed by the Wife of $31,500;
(c)whether the sum of $35,000 was loaned by the husband's parents and repaid to his mother from the $61,278 withdrawn from the parties joint bank account by the husband on 3 April 2020; and
(d)Husband disputes the level of the wife's contributions post separation and raises that it was unnecessary for the wife to go to the expense of renting accommodation post separation.
The Asset Pool
The total net asset pool as alleged by each party is as follows
Description Ownership Applicant’s value Respondent’s value ASSETS Suburb B property Joint $845,000 $845,000 Motor vehicle 1 Applicant E$10,000 E$10,000 Motor vehicle 2 Respondent $37,500 $32,000 Vehicle 3 Respondent $31,500 $22,500 Part property settlement Applicant $26,000 $26,000 Part property settlement Respondent $61,278 $26,278 Assets subtotal E$1,011,278 E$961,778 LIABILITIES Real Estate Agent Commission and Legal Costs of Sale Joint E$15,000 E$15,000 Liabilities subtotal E$15,000 E$15,000 SUPERANNUATION Name of Fund Member Applicant’s value Respondent’s value Super Fund 2 as valued by Z Company on 6 December 2021 Applicant $395,855 $395,855 Super Fund 3 as at 28 November 2021 Respondent $247,390 $247,390 Adjustment for early withdrawal of superannuation Respondent $10,000 NIL Superannuation subtotal E$653,245 E$643,245 TOTAL (assets – liabilities) E$996,278 E$946,778 TOTAL (assets – liabilities + superannuation) E$1,649,523 E$1,590,023 FINANCIAL RESOURCES Description Ownership Applicant’s value Respondent’s value Financial Resources subtotal NIL NIL
The dispute raised by the husband in relation to the valuation of motor vehicle 2 and vehicle 3 is settled as the wife’s solicitors served a Notice to Admit in relation to the valuation of those items on the husband on 24 November 2021. The notice requested the husband to admit the value of motor vehicle 2 at $37,500 and vehicle 3 at $31,500. The husband was also asked to admit the written valuations upon which those valuations were based. The husband did not serve a notice disputing a fact or document. The notice makes plain the consequences of not serving a notice of dispute. In those circumstances the Court finds that the value of those items are $31,500 for vehicle 3 and $37,500 for motor vehicle 2.
There is an issue in relation to the sum of $45,000 allegedly loaned by the husband's parents between 2010 and 2015, during the course of the relationship. $10,000 of which was repaid to his mother in 2015, leaving $35,000 with the parties. The wife denies that there was any such loan and that any money provided was in the nature of gifts made from time to time. On 3 April 2020, the husband withdrew $61,278 from the parties’ joint bank account and says that $35,000 of that was to repay the loan. He pointed to bank statements showing $30,000 being deposited into his mother’s bank account and says that he retained $5000 as payment for a bathroom renovation he undertook for his mother. The balance of funds was $26,000 which was withdrawn and retained by the wife.
Under cross examination, the husband gave evidence to the effect that he received monies from his father from time to time until about 2010. The husband stated that his father passed away in 2015 and retired in about 2010. The husband gave evidence that his father had given him money over the years and had been told by his father "you will probably end up burying me with this money”.
The evidence does not support a finding that the $35,000 withdrawn by the husband in April 2020 was for the purpose of repaying a loan. The evidence of the husband suggests that money was being gifted from time to time with there being no expectation that the money be repaid. No direct evidence has been given by the husband or his mother about the terms of any loan agreement which would give rise to a requirement that he repay the loan. In evidence he referred to his mother keeping a ledger recording the loans but no such document was produced and his mother was not called to give evidence.
I therefore find that the $35,000 taken by the husband, of which $30,000 was transferred to his mother was in the nature of a gift from his parents and he had no legal requirement to repay that money. I will treat that money taken by the husband as a partial settlement following the separation of the parties. I find that the $61,278 withdrawn by the husband was a partial property settlement. I treat the $26,000 received by the wife as a partial property settlement.
I also find that the husband has not properly explained why he needed to access superannuation to the extent of $10,000 on June 2021. This is in light of the fact that he had access to funds as demonstrated by the withdrawals that he made from his own account and income records that he produced. These records show no diminution in his earnings through 2021 until he resigned from his employment in August 2021. He says that the money was withdrawn in order to pay for legal expenses and because he was unemployed and was able to access the fund under then prevailing Covid provisions regarding the early accessing of superannuation. The withdrawal of that money by the husband was, in effect, an early distribution of family assets and should be taken into account as such when assessing the asset pool.
The wife seeks certain items be taken into account as sums expended either by her or as expenses incurred by her as a result of orders requiring her to have sole control of the sale of the matrimonial property. Those costs include half the costs of a mediation centre fee, half the costs of having the pool at the matrimonial home cleaned in order to prepare the property for sale, costs incurred in having the property transferred into her sole name and the sale of the property and costs previously ordered in her favour in the sum of $6882.00. I find that it is appropriate for the amounts attributable to those expenses be included in the balance sheet as property retained by the husband. The husband did not object to that course at trial. Some of the expenses are joint expenses which the wife was required to pay in order to give effect to orders for the sale of the property.
Otherwise, I find that the asset pool is that as contended for by the applicant.
CONTRIBUTIONS
The evidence in this case by both parties is to the effect that they both worked throughout the course of their long relationship of 23 years and both contributed their incomes to the benefit of the family through that time. There is no evidence that either party failed to make such contributions prior to separation.
Both parties contributed to the care of the children with the wife being the primary carer. Throughout the relationship, the wife worked shift work with the husband looking after the children when the wife worked nights and weekends in accordance with those shifts. As is apparent from the chronologies provided by both parties, there is no dispute that in 2018 the wife received a gift of $50,000 from her father of which she deposited to the joint bank account and in 2018 the husband received a redundancy payment which he used to pay down the mortgage.
The wife’s affidavit of 17 November 2021 at [23]–[37] sets out evidence of the husband accessing joint bank accounts and withdrawing significant funds.
The wife details that during the relationship, until separation, she and the husband had separate bank accounts where their respective salaries were deposited into. That each fortnight they would pool their incomes by depositing funds into a joint bank account which was then used to pay for living expenses and bills.
The wife says that in about April 2019 she noticed that whilst the respondent was still depositing some of his income into the joint bank account, he was withdrawing more funds from that account to his personal account or his personal credit card than he was depositing into the joint account. She states that historically the husband used his personal credit card to pay for joint living expenses. She also states that both she and the husband rarely paid for joint living expenses in cash and that the husband’s spending on his personal lifestyle in previous years was minimal. She later became aware that during the period from April 2019 to December 2019, the husband withdrew $19,620 in cash from his personal bank account.
The wife gives evidence that in about August 2019 she questioned the husband regarding the increased expenditure and was told by him that he was using the money to buy petrol and pay for car maintenance. These were explanations the wife did not accept and she has expressed the opinion that it is her view that these monies were spent to purchase illicit drugs. She makes reference to a text message written by the husband to the daughter, X, on 6 October 2021 ( annexure MD 3 to the Wife's affidavit of 17 November 2021) which text states relevantly:
"disregard my text [X], I am so confused right now, the substance has worn off and I don't know how to deal with real-life feelings. The last two years is a blur or blank to me, I'm going to go away with [vehicle 3] and see what I end up, stop texting because I note makes its way public… And then further "well I guess I've reached rock bottom, I hope this substance is the only reason Mum left me I do hope you can forgive me someday lots of love dad”.
The record that the wife has compiled based on the husband's disclosed bank statements show that the husband made cash withdrawals between January 2000 and19 December 2019 of $22,910 and withdrawals between January 2020 and April 2021 are in the sum of $67,190. The husband in his oral evidence before the court (Transcript 2 February 2022, p.77 line 30) explains his drastic increase in expenditure from cash withdrawals on the basis that he wasn't using his credit card to pay for things and was paying for items in cash. The husband explained at Transcript 2 February 2022, p.77, lines 45-47, that as he was single he was “living it up. I was putting a bet on the horses here and there I was earning the money and spending it”.
Notwithstanding the direct allegation that he was using the money to buy illicit drugs he did not put into evidence in any detailed way what the money that he was withdrawing was being spent on. I do take into account as a negative contribution the fact that the husband had spent excessively on personal items whether they be drugs or otherwise from joint funds prior to the separation in 2019.
I make no finding that the husband was spending the money on drugs but I do find that he has not adequately explained what the money was spent on when he had the opportunity to do so.
In relation to post separation contributions, I find that the wife's post-separation contributions have been more significant than the husband's. Upon the separation which occurred on 5 January 2020 the wife took on sole responsibility for the maintenance and upkeep of the Suburb B property. The regular ongoing costs appear to run to about $500 to $600 per month based on the evidence given by the wife at [47] of the trial affidavit.
The applicant submits she has been solely responsible for the following expenses relating to the Suburb B property:
(a)insurance at $61 per month;
(b)rates at $140 per month. The Applicant applied to the [L Council] for an extension of time to pay the latest rates due to her dire financial situation. There is currently a total of $1,321 outstanding in rates;
(c)gas at $40 per month. In October 2021, the Applicant turned the gas off to reduce costs in anticipation of the house being placed on the market for sale;
(d)electricity at $100 per month to run pool filter;
(e)water at $85 per month;
(f)upkeep of the property at $70 per month. The Applicant purchased a lawn mower and whipper snipper, totalling $600 in order to maintain the garden and upkeep of the property; and
(g)pool chemicals and upkeep of the pool initially were $50 per month but has now been reduced to $10 per month.
Between 28 October 2021 and 1 November 2021, it is contended that the applicant and her family spent about 100 hours physically preparing the Suburb B property for sale, in accordance with the recommendations of the real estate agent. This included purchasing and collecting furniture to stage and style the property, cleaning the property inside and out and performing maintenance and gardening. The applicant argues she did this at her sole cost and paid for the pool to be professionally cleaned as recommended by the real estate agent. The applicant is seeking half of this fee to be added back against the respondent. I accept that the wife has spent the time and money set out in her evidence to maintain the property post separation and to prepare the property for sale and is entitled to be effectively reimbursed for half of those costs as she has claimed.
The wife also claimed as a negative contribution the fact that she felt she had to leave the family home and move into rental accommodation. The wife gives evidence at [59] of her trial affidavit that following separation the husband moved from out of the family home to move in with his mother, with her remaining in the family home with the children. She states at [60], that on 17 March 2020 the husband was charged with assault upon her and the police officer took out an intervention order against the husband which was made final by consent for a period of 12 months. The wife was granted exclusive occupancy by that order at the hearing on 15 November 2021. At that hearing the respondent changed his plea from guilty to not guilty to one charge of assault and nine charges of breaching the intervention order. That matter had not been dealt with at the time of this hearing.
The wife gives evidence that notwithstanding the intervention order, the respondent husband continued to commit acts of family violence against her and breach the order. She says that his behaviour became extremely erratic and abusive following separation. Those matters are set out in detail in the family violence notice which is attached to the wife's affidavit.
The wife gives evidence that notwithstanding the existence of the intervention order the husband continued to text her in breach of the communication prohibition. She states that between 18 and 21 March 2020 the respondent communicated with her by text on 14 occasions in breach of the intervention order granted on 17 March 2020. There were also texts to the wife's mother including one on 29 December 2020 where he made a threat in the following terms “I see the whore still wants to create drama in my life. Is it because she cares? Like fuck she cares. I will hunt her down for real now till the end”.
The wife states she reported these matter to the police but believes that the police decided not to charge the husband. She states that as a result of the fear of harm and the fact that the intervention order was set to expire she applied for the intervention order to be extended. Her application for the extension was heard on 9 March 2021. The Melbourne Magistrates Court ordered an extension of the full intervention order on an interim basis until the next court hearing which was scheduled on 12 May 2021. The wife applied to have the children included as protected persons but that that application was refused. A final intervention order made on 2 June 2021 gives the wife exclusive occupation of the Suburb B property until 2 June 2023 with the husband being prohibited from going to a remaining within 200 metres of that property.
The wife gave evidence that as a result of the constant harassment following the intervention orders she decided to move out of the Suburb B property on 31 August 2020 and into rental accommodation. She did so without the husband’s knowledge, with the thought that she might be safe from the respondent's ongoing behaviours.
The husband denies that there was any real need for the wife and children and to leave family home and submits that the money spent by the wife on rental accommodation was effectively wasted. The husband sought to explain his behaviour including sending his daughter's text messages and threatening the wife's mother on what he characterises as his mental illness.
Having seen the husband give evidence and having regard to the evidence that the wife has given regarding the husbands conduct and having read the frightening and disturbing text messages that the respondent sent to his own children and the wife’s mother, in my view the wife was entirely justified in seeking to protect herself and her children by leaving the family home and renting accommodation where she believed that the husband might not be able to locate her and continue to harass and threaten her. I will take into account the costs associated with the wife moving out of the family home and then moving back in when assessing contributions.
FUTURE NEEDS
The wife is 46 years of age and currently employed as a public servant on a part-time basis. She previously held senior position and received an income amount $69,000 per annum plus shift penalties. From about September 2021 she has occupied the position of manager on reduced hours of 30 hours per week. She receives an income of approximately $58,024.80.
She says that since separation she has experienced severe panic attacks and anxiety which has affected her ability to attend work. At the time of hearing both the children were in their final years of secondary college. Both the children are receiving assistance from psychologists and the wife states that her daughter, Y, has experienced significant anxiety and has had anxiety attacks and avoids using public transport and crowds.
I accept the evidence of the wife that both children are suffering significantly from the stress associated with these proceedings as a result of the husband’s conduct towards both them and their mother. I also accept that the wife is placed under a significant stress as a result of the husband paying minimal child support of approximately $50 per week whilst she is trying to care for her children. In [38] of an affidavit filed on 28 January 2022 she states:
I have been advised by a GP the [Y] needs the care of a mental health practitioner but I have not had the financial means to accommodate this on my income. I believe that both children's diagnosis of autism spectrum disorder has been greatly exacerbated due to the big respondent's behaviour towards them.… The children require substantial emotional support from me and often have emotional outbursts to me about not being loved. This has placed an extreme mental workload onto me when my own mental health is suffering. I often experience anxiety and the feeling of hopelessness of how this experience can affect mine and the children's lives in the future… I've tried to protect the children from the respondent's nasty and inappropriate behaviour towards me.
The children currently act in accordance with their wishes as to how they communicate and spend time with the respondent.
Whilst the wife is not qualified to express medical opinions about the children’s autism spectrum disorder, I do accept her evidence that she and her children are extremely stressed by the husband’s conduct.
The husband is 46 years of age and currently unemployed and contends that he is unfit for work. He points to injuries he says that he suffered as a result of being assaulted on the street by five unknown men in late 2021. He also sets out an account of his injuries and conditions in annexure 5 to his affidavit sworn 15 January 2022. The husband does present as unwell and there is evidence that he has suffered injuries which have had the effect that he is unable to drive as a result of difficulties with his eyesight. He gave evidence that he was scheduled to have an operation to deal with injuries but withdrew from the operation shortly prior to it being conducted because he did not trust the medical staff. His general practitioner has certified that he suffers from post-traumatic stress disorder. A psychologist, Mr M provided a letter dated 20 January 2022 stating that he had seen the husband on 17 January 2022 and assessed him as experiencing depression, stress and anxiety in the extremely severe range. He encouraged a referral to a psychiatrist to investigate a possible diagnosis of psychosis/ paranoia.
It is unclear on the evidence before me as to the cause of the husband's condition or behaviour and the extent of whatever illness he has and whether he is in fact psychotic. No evidence has been put before the Court in relation to his future prognosis and capacity to work, to undertake a course of education or setup a business. No evidence has been placed before the Court in relation to the husband’s eligibility for a pension or allowance or whether he may be able to access benefits available under any superannuation scheme.
The wife strongly contends that his behaviour is brought about by the use of methamphetamine as the husband has not adequately explained how he has spent the money that he has taken out of his bank accounts.
I do find that it is likely that if the husband’s current behaviours continue, including the type of behaviour that he exhibited in the course of the hearings before the Court, that his children will not have any significant relationship with him and it is most likely that the wife will bear the ongoing costs of supporting the children[1]. Both children have now been formally diagnosed with autism spectrum disorder and that they are likely to require ongoing financial and non-financial assistance from the wife. At this point that support is unlikely to come from the husband, whether it be financial or non-financial.
[1] I will not set out in this judgment the offensive comment made by the father but is set out in transcript at p 67 line 15 – 30 and was subject to comments from the Court at the time.
I do accept that the husband has failed to adequately explain his quite significant expenditure of funds since separation and has not placed before the Court any evidence that he is abstinent from illicit drugs, notwithstanding that his own text communications suggest that he is using “substances”. I do not accept that his future needs are greater than the wife’s given that she has to bear the responsibility to support the children and that is presently without the support of the husband.
For these reasons I make the following finding that there should be a 10% adjustment in favour of the wife to take into account the post separation contributions that she has made and the future needs that she has. I regard that adjustment as just and equitable.
CHILD SUPPORT
The applicant sought orders in relation to arrears of child support and a lump sum payment of approximately $4600, being half the out-of-pocket expenses for surgery costs associated with one of the children’s jaw. That order was sought pursuant to section 124 of the Child Support (Assessment) Act 1989. No application was made for that in any applications filed before the court. In particular no application was made pursuant to section 123 (1) (a) of that Act. Given that the respondent husband was self-represented and notice not been given of the application in proper form I do not believe it is appropriate to make orders in respect of those matters.
CONCLUSION
The Court makes orders reflecting these reasons.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 26 May 2022