DISHMAN & DISHMAN (No.2)
[2019] FCCA 2803
•8 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DISHMAN & DISHMAN (No.2) | [2019] FCCA 2803 |
| Catchwords: FAMILY LAW – PROPERTY – Where the husband is self-represented – conduct of proceedings – where the husband withdrew and disengaged from the proceedings – due process – property adjustment – where there is little controversy between the parties as to the evidence – where the available assets and resources and the net value of all assets is agreed between the parties or clearly established on evidence – contributions – where the wife received a significant inheritance during the marriage – homemaker contributions – primary wage-earning contributions – section 75(2) factors. |
| Legislation: Family Law Act 1975 (Cth), ss.75(2), 90XZD |
| Cases cited: Re F Litigant in PersonGuidelines (2001) FLC 93-072 Allesch & Maunz [2000] HCA 40 |
| Applicant: | MS DISHMAN |
| Respondent: | MR DISHMAN |
| File Number: | PAC 6114 of 2018 |
| Judgment of: | Judge Harman |
| Hearing date: | 23 September 2019 |
| Date of Last Submission: | 23 September 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 8 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schroeder |
| Solicitors for the Applicant: | Matthews Dooley & Gibson |
| The Respondent appeared in Person |
ORDERS
That each of the parties shall forthwith do all things, sign all documents and give all consents, authorities and instructions as are necessary to instruct Matthews Dooley & Gibson Solicitors (or such other practice or individual/s as hold on trust for the parties the sum of $1,205,274 and being the proceeds of sale of the former matrimonial home at Suburb A), to release to the wife all funds held by them on behalf of the parties together with any interest accrued thereupon.
That within forty two (42) days the Husband shall:-
(a)Pay to the Wife the sum of $350,000;
(b)Discharge the mortgage over the property known as Property B being the whole of the land comprised in Folio Identifier … (“Property B”); and
(c)Discharge the mortgage over the property known as Property C being the whole of the land comprised in Folio Identifier … (“Property C”).
That simultaneously with the Husband complying with Order 2 the Wife shall do all such things and sign all such documents provided to her by the Husband as may be necessary to transfer to the Husband all of her right title and interest in Property B and Property C.
That in the event that the Respondent fails to comply with Order 2 within forty two (42) days, the parties shall within seven (7) days of his default, do all acts and things and sign all documents necessary to effect a sale of the Property B and Property C properties in accordance with the following conditions of sale:-
(a)That the parties sign all selling authorities as may be necessary to enable Property B and Property C to be listed for sale with a licensed real estate agent or agents as agreed between the parties and in default of agreement as appointed by the Real Estate Institute of NSW or its then present equivalent for such purpose.
(b)That the parties instruct a Solicitor/Conveyancer to have the carriage of the sale of Property B and Property C being such Solicitor/Conveyancer as agreed between the parties and in default of agreement such Solicitor/Conveyancer to be appointed by the President of the New South Wales Law Society.
(c)That the parties list Property B and Property C at such prices as the parties shall agree and failing agreement then at such prices as may be determined by a Valuer appointed by the President for the time being of the Australian Property Institute (NSW Division) or his nominee or its then present equivalent for such purpose.
(d)If contracts for the sale of Property B by private treaty have not been exchanged within three (3) months from the date Property B was placed on the market for sale then the parties will cause Property B to be listed for sale by way of public auction within four (4) months from the date that Property B was placed on the market for sale.
(e)If contracts for sale of Property C by private treaty have not been exchanged within three (3) months from the date Property C was placed on the market for sale then the parties will cause Property C to be listed for sale by way of public auction within four (4) months from the date that Property C was placed on the market for sale.
(f)If either Property B or Property C is listed for sale by way of public auction, a reserve price shall be fixed by agreement between the parties, and failing agreement the reserve price will be determined by a Valuer appointed by the parties, or failing agreement, appointed by the President for the time being of the Australian Property Institute (NSW Division) or his nominee or its then present equivalent, upon the written request of either party.
In the event that the Property B and/or Property C are not sold by public auction as provided for above, then each unsold property is to be relisted on the market for sale by private treaty with a real estate agent agreed between the parties and at a price agreed between the parties or failing agreement within seven (7) days after the auction then as determined by the President for the time being of the Australian Property Institute (NSW Division) or his nominee, or its then present equivalent, upon the written request of either party.
That upon completion of the first sale as between Property B and Property C the sale proceeds shall be disbursed in the following manner and priority:-
(a)In discharge of any mortgage;
(b)In payment of the costs and expenses of the sale;
(c)In payment of the sum of $350,000 plus interest calculated in accordance with the Federal Circuit Court Rules 2001 to the Wife; and
(d)The balance, if any, to the Husband
That the sale proceeds of the second property to be sold shall be disbursed in the following manner and priority;-
(a)In discharge of any mortgage;
(b)In payment of the costs and expenses of the sale;
(c)In payment of such sum as is necessary to provide a total payment to the Wife of $350,000 plus interest calculated in accordance with the Federal Circuit Court Rules 2001 in the event that there was a shortfall in that payment pursuant to the last preceding Order; and
(d)The balance to the Husband.
That pending the transfer of Property B and Property C or the sale of Property B and Property C in accordance with the Orders herein, the rental income from each property shall be applied to payment of the outgoings on those properties and any shortfall shall be paid by the Husband.
That the Wife be declared the sole owner in law and equity of Vehicle D.
That the Husband be declared the sole owner in law and equity of Vehicle E.
That other than as aforesaid the Husband and the Wife be declared to have the sole right title and interest in:
(a)Any chattels goods furnishings and other property which are, at the date hereof, in their possession respectively
(b)Any moneys, shares, debentures which stand in their sole name (including, in the case of the husband, any offset account connected with any mortgage encumbering any parcel of real estate to be retained by him) respectively at the date hereof.
(c)Any financial resources, including superannuation entitlements, which stand in their sole name respectively at the date hereof.
That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar or Deputy Registrar of the Parramatta Registry of the Court making this Order be and is hereby appointed pursuant to Section 106A of the Family Law Act 1975 to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument upon being satisfied by Affidavit of such neglect or refusal. A party shall be deemed to be in default if that party refuses or neglects to sign any document within seven (7) days of being requested to execute that document, such request being made in writing.
In the event that the applicant wife seeks to press for an order with respect to costs then the wife’s legal representatives shall advise my Associate in writing, within 28 days of delivery of these reasons, of their intention to press that application and upon receipt of such notice the matter will then be relisted for argument and appropriate directions made as to the filing of a minute of order sought and written submissions.
IT IS NOTED that publication of this judgment under the pseudonym Dishman & Dishman (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 6114 of 2018
| MS DISHMAN |
Applicant
And
| MR DISHMAN |
Respondent
REASONS FOR JUDGMENT
Proceedings
These proceedings involve competing applications for property adjustment under Part VIII of the Family Law Act 1975 (Cth).
The proceedings are between the parties to a marriage, Ms Dishman, the wife and applicant, and Mr Dishman, the husband and respondent. The relationship between the parties commenced in 1979. The parties were married … 1984 and separated … 2017. By any view it is a long marriage. It is also a marriage which produced two children now both adults and self-supporting (aged 30 and 27 years of age respectively).
Ms Dishman is legally represented. Mr Dishman is not legally represented and has, on each occasion that the matter has been before the Court, appeared in person. Mr Dishman refers, in his affidavit material, to having read portions of the CCH Australian Master Family Law Guide. [1]
[1] In his written submissions provided to the Court 12 August, 2019 (with respect to the hearing of the first of two Applications in a Case, Mr Dishman indicated (page 1) “Since January, 2019 I have obtained a copy (and have read fairly thoroughly) the relevant parts of the CCH-produced ‘Australian Master Family Law Guide’ in trying to come to grips with the general procedural and legal principles which should apply to this case”. I am conscious that Mr Dishman makes myriad complaints regarding Ms Dishman’s legal representative and their dealings with him. I do not propose to engage with those complaints, as Mr Dishman was advised 12 August, 2019, as they are not matters for the Court and are not relevant to the address of the substantive dispute before the Court. Further, as Mr Dishman’s submissions 12 August, 2019 concluded with (page 6, paragraph 52 “I also request the Court to refer the matter to the Legal Services Commissioner…” it would be inappropriate to go beyond acknowledgement of Mr Dishman’s views.
It is regrettable that Mr Dishman did not obtain legal advice or retain legal representation.[2] As is now apparent, the evidence discloses a remarkable lack of factual controversy and an early resolution of the matter might have been achieved with such assistance and without the need for the Court’s determination of, not only the substantive proceedings, but two earlier Applications in a Case.
[2] Mr Dishman certainly had the means to obtain legal advice and retain legal representation. This may well have assisted in addressing the issues with respect to evidence and communication raised by Mr Dishman.
It is also apparent,[3] without intending to engage with the controversy,[4] that communication between the self-represented Mr Dishman and Ms Dishman’s legal representative has been ineffective in advancing the matter towards resolution. These difficulties would appear[5] to have been further compounded by a lack of knowledge of or focus upon relevant legal principles applicable to the determination of this dispute, on the part of Mr Dishman.
[3] From correspondence annexed to Mr Dishman’s trial affidavit as referred to at paragraphs 82, 83, 91, 114 and 116
[4] As it is entirely unnecessary and unhelpful
[5] Again, by reference to the material Mr Dishman has annexed to his trial affidavit
Material Considered
In dealing with the proceedings I have read and considered the following material:
a)The wife’s Initiating Application filed 19 December 2018;
b)The wife’s affidavit of evidence-in-chief sworn or affirmed 14 August 2019 and filed 21 August 2019;
c)The wife’s statement of financial circumstances filed 21 August 2019;
d)The Response of Mr Dishman filed 12 March 2019;
e)The affidavit of Mr Dishman sworn or affirmed 25 August 2019 and filed 28 August 2019;
f)The Financial Statement of Mr Dishman filed 12 March 2019.
In addition to the above I have received a Case Outline document from counsel representing the wife and to which reference will be made in due course.
There were also two tenders made during the conduct of the proceedings comprising:
a)Exhibit A, an amended balance sheet; and,
b)Exhibit B, income tax returns and assessment notices for the husband for the financial years ending 30 June 2017, 2018 and 2019.
Upon reading the husband’s trial Affidavit it became necessary to also read and consider the earlier Affidavits of the parties or filed on their behalf namely:
a)The wife’s affidavit filed 19 December, 2018; and,
b)The husband’s affidavit filed 12 March, 2019;
c)The Affidavit of the wife’s legal representative filed 10 September, 2019.
This arose as the husband’s trial affidavit made allegations regarding earlier evidence or representations and suggested non-disclosure which, to be properly understood, required a consideration of the earlier filed material.
As observed at the outset, there are few factual controversies arising from the evidence. The vast majority of evidence is agreed and non-controversial.
The few controversies that arise can and will be addressed in due course. These are largely confined to issues regarding:
a)The quantum and form of an inheritance received by Ms Dishman. There is no controversy as to the occurrence of the inheritance, the receipt of funds and property and the settlement of a Succession Act 2006 (NSW) claim brought against the estate. There is agreement that funds from the inheritance were used to discharge, in full, the mortgage encumbering the matrimonial home of these parties. What can be inferred is a suggestion by Mr Dishman, that has never been fully or clearly articulated and, as he refused to participate in the hearing, was not explored, that there has been a failure to disclose funds or possibly a premature distribution of funds relevant to the assessment of contribution or section 75(2)(o); and,
b)The registered proprietorship of title of two investment properties.
Ultimately, there is nothing of significance with respect to the latter of the above two issues and, whilst the issues will be further considered, the matters raised by Mr Dishman are not of assistance in determining the case.
Conduct of the Proceedings
Mr Dishman did not participate in the trial that concludes these proceedings. That was a conscious and deliberate choice made by Mr Dishman. To understand how and why the matter has concluded in that fashion requires explanation and can best be understood by a brief consideration of the history of these proceedings.
The proceedings were commenced by an Initiating Application filed on the 19th of December 2018. The Initiating Application and supporting material, as disclosed by an Affidavit of Service filed 24 January, 2019, were personally served upon the husband on 16 January, 2019.
Rule 4.03 of the Federal Circuit Court Rules 2001 provides a period of 28 days, from the date of service of an Application, in which to file a Response, affidavit sufficient to comply with Federal Circuit Court Rules (rule 4.05) and a Financial Statement (rule 24.02). Accordingly, and on the basis that service was affected upon Mr Dishman on 16 January, 2019, material was to have been filed by Mr Dishman by close of business 15 February 2019. Material was not filed in this period nor before the first Court event in these proceedings 12 March, 2019, although no complaint was raised by the wife or her legal representatives.
Following service, a firm of solicitors had filed a Notice of Address for Service on behalf of the husband. However, a Notice of Intention to Withdraw was filed by those solicitors on the first return date of the proceedings. Mr Dishman, accordingly, appeared in person, as would be apparent from the orders issued that day.
On the first return date, some time was spent triaging the matter and determining how the proceedings might be advanced.[6] The parties were offered the opportunity to consent to arbitration. That opportunity was declined. The parties were ordered to attend mediation with an accredited family dispute resolution practitioner. It would appear that mediation did, in fact, occur although no resolution was achieved.
[6] Notwithstanding Mr Dishman’s subsequent application for recusal and the matters relied upon in support of that application it is germane to observe the submission of Mr Dishman, in his written submissions 12 August, 2019 (paragraph 12 page 2) “At the first Directions Hearing I was grateful for the judge spending his valuable time explaining in some detail the process to me…”
The matter was next before the Court (the second Court event) on 18 June, 2019. On that date, trial directions were made. The trial directions required that both parties simultaneously file the affidavit material upon which they proposed to rely (comprising one affidavit per witness) by 30 August 2019. The matter was fixed for hearing 23 September 2019. That date was obtained by surrendering what would otherwise have been a judgment writing day and to ensure that the matter could be accommodated and heard expeditiously.
A further appearance occurred 12 August, 2019 to address an application in a case that had been filed by Mr Dishman and which sought variation of the trial directions previously made. Some slight amendment of those orders occurred.
The submissions filed by Mr Dishman on 12 August, 2019 sought to raise and agitate certain issues with respect to suggested non-disclosure by Ms Dishman. Further, Mr Dishman alleged misconduct by Ms Dishman’s legal representatives by failing or refusing to provide disclosure as requested. Whilst I have, earlier in these reasons, been clear that I do not intend to engage with Mr Dishman’s complaints regarding Ms Dishman’s legal representatives,[7] this issue of alleged non-disclosure does require address particularly as:
a)Mr Dishman had alleged that the Court refused to engage with the issue (12 August, 2019) as a basis for recusal;[8]. Further, the allegation can be simply addressed by correspondence between the parties and in evidence;[9]
b)The issue speaks the integrity and efficacy of this determination; and
c)There is ample evidence before the Court to allow the issue to be safely and authoritatively addressed.
[7] It is inappropriate for the Court to engage with complaints regarding communications which occur away from the Court. The Court is not privy to those communications and they do not concern the Court.
[8] A separate judgement dismissing that application was delivered 23 September, 2019
[9] The Court is completely unaware of what pre-action procedures, if any, were utilised prior to filing. What is clear from the correspondence placed before the Court, in the address of the two earlier Applications in a Case, is that communication between Mr Dishman, without seeking to apportion culpability, was poor, ineffective and, perhaps, counter-productive, inflaming rather than quelling controversy. That is not, for one moment, to suggest that the wife’s legal representatives caused those difficulties as Mr Dishman asserts in his evidence (both affidavits and submissions) relating to his two earlier applications in a case. It must be observed that the husband’s repeated complaints that the wife and her legal representatives failed to give disclosure with respect to the wife’s inheritance or title to the investment properties are baseless. By letter 7 August, 2019 any controversy with respect to the title of the investment properties was authoritatively quelled (see page 5 Affidavit M Ford filed 10 September, 2019) and by letter 23 April, 2019 (pages 6-10 of the same Affidavit) and prior to any complaint by Mr Dishman as to the issue, Ms Dishman’s legal representatives had given detailed disclosure (including provision of corroborating documents) regarding the wife’s inheritance and the use and application of funds received therefrom. That the husband omitted those letters from his material raising complaint was, at best, disingenuous.
To the extent that Mr Dishman complains that he has not received full and proper disclosure from Ms Dishman or those retained by her, I need go no further than the correspondence forwarded by Ms Dishman’s legal representatives 23 April, 2019 and 7 August, 2019.[10] This correspondence was forwarded to Mr Dishman by email on each of those dates respectively. This correspondence is omitted from that filed by Mr Dishman.
[10] Found at pages 5-10 of the Affidavit of Mr Ford filed 10 September, 2019.
Mr Dishman’s complaints as to an absence of disclosure are baseless.
At the commencement of the trial a recusal application was prosecuted by Mr Dishman. The application was dismissed. A separate judgment was delivered ex tempore. The transcript was obtained and the reasons expeditiously settled and the settled judgement now provided to the parties. This was particularly so as Mr Dishman made clear, upon the determination and dismissal of his application for recusal, that he intended to appeal.
It was made clear to Mr Dishman that the matter would proceed. The Court’s Re F Litigant in PersonGuidelines (2001) FLC 93-072 responsibilities were discharged by explaining the trial process to Mr Dishman. Mr Dishman was then asked if he was ready to proceed and whether he wished to cross-examine Ms Dishman.[11]
[11] After it had been ascertained from counsel for Ms Dishman that no application by reference to s.102NA Family Law Act 1975 was made.
Mr Dishman indicated that he did not agree with the matter proceeding and would not participate. A brief adjournment was then taken to permit Mr Dishman an opportunity to consider his position and to take such advice as he may have desired as to his engagement in the hearing of the substantive dispute (noting that Mr Dishman has referred in the various documents filed in these proceedings to his brother being a practicing or retired barrister).[12]
[12] Whether that is the person who has accompanied Mr Dishman or not is not known as no enquiry has been made of Mr Dishman.
Upon resuming after adjournment Mr Dishman reaffirmed his intention to withdraw from the proceedings and to take no further part in them. Mr Dishman then withdrew and disengaged from these proceedings, physically removing himself from the bar table to sit in the body of the Court with the person who had accompanied him to Court on this and other occasions.
Accordingly, the matter proceeded on the basis of the above evidence as identified, and absent cross-examination of either party. The matter proceeded on the basis of submissions by counsel for Ms Dishman only.
Prior to his withdrawal, it was made clear to Mr Dishman that should he choose to withdraw that the matter would still proceed to finalisation, although, it would be on the basis that Ms Dishman, being unchallenged as to her evidence, would, in all probability, be accepted as a witness of truth.
Ultimately, that is not a matter of great moment as there is so little factual controversy and, to the extent that there is any, the wife’s evidence is plausible and internally consistent. Material is annexed to Ms Dishman’s affidavit corroborating the majority of matters raised by her, particularly relating to the receipt of funds by way of inheritance (a matter of some significance, it would seem, as regards the conduct of the proceedings to date).
In reality, the evidence of the parties is, with respect to any issues of significance, identical or largely so. The present legal and equitable interests of the parties in property and financial resources are almost entirely agreed and without controversy as are the roles played by the parties within their long marriage and the contributions made by each.[13]
[13] For example, Mr Dishman’s evidence (paragraphs 13 and 14 of his trial affidavit) is that “There is no relevant dispute about the current market value and residual value (after discharge of mortgage) of the two investment properties. There is also no relevant dispute about the net proceeds of sale of the matrimonial home nor of the current value of my superannuation benefits…”. These four assets or resources represent 91.9% of the nett available pool (items 1-3,12-13, 14-15 of the balance sheet).
Due Process
As Mr Dishman has refused to play any further part in the hearing and has withdrawn and discontinued his involvement, it is necessary to consider whether due process has been afforded to the husband.
In considering due process, I do not intend to further engage with Mr Dishman’s complaints suggested to found recusal. Those arguments did not find favour with the Court, and the matter has proceeded.
Mr Dishman has, to my mind, been afforded an abundant opportunity to participate in the hearing. He has simply chosen to withdraw and discontinue his involvement.
As the High Court discussed in Allesch & Maunz [2000] HCA 40, what is required to afford due process must be determined by the facts and circumstances of any given case. What is required in any case is to afford a reasonable opportunity to each of the parties to participate in the decision, to be heard, to present and to test evidence and to make submissions.
I am satisfied and would trust that any transcript of that which has transpired on 23 September 2019 would adequately record, that these matters were made clear to Mr Dishman. It was made clear to Mr Dishman that he could not be compelled to participate, to give evidence or to cross-examine Ms Dishman, although:
a)An opportunity was afforded to him to do so - he was, indeed, invited to do so;
b)Mr Dishman was advised that in the absence of his cross-examination of Ms Dishman, that Ms Dishman’s evidence would most likely be accepted as correct.
To afford a reasonable opportunity to a litigant to participate in proceedings is not to afford, as their Honours comprising the plurality of the High Court opined, to afford an opportunity at a time or in a manner of that party’s choosing.
What was made clear by Mr Dishman was that whilst he desired to participate in the proceedings and to cross-examine Ms Dishman, that he would not do so if I continued to hear the case. This was after the application for recusal had been dismissed.
I am particularly conscious of that which fell from Kirby J in Allesch & Maunz at paragraphs 35 and 36, and which I incorporate herein:
It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
The rule is also implicit in international principles of human rights. It is inherent in the proper conduct of judicial proceedings in a court of law. It may even be an implied attribute of the Judicature established under, and envisaged by, the Constitution. So deeply ingrained is the principle that more recent times have seen its extension, with certain exceptions, to administrative tribunals and other decision-makers. The principle governed the Family Court of Australia in determining the rights of the present parties.[14]
[14] Whilst Kirby J delivered a separate judgment to their Honours Gaudron, McHugh, Gummow and Hayne JJ, the outcome of the appeal was unanimous
I am also conscious of that which fell from the majority, in paragraph 28 of Allesch & Maunz. Therein their Honours stated:
…a court will, ordinarily, be satisfied that there has been a miscarriage of justice if a person has suffered an adverse order in circumstances where his or her failure to appear is adequately explained unless it also appears that no different result would be reached on a rehearing or that a rehearing would work an [irredeemable] injustice to the other side.
In this case, Mr Dishman was afforded the opportunity to participate in the hearing of the proceedings. Mr Dishman declined that opportunity voluntarily and after being given an appropriate opportunity to reflect and take advice from such person or persons as he might desire.
Mr Dishman did not appear with legal representation, but it is clear from his evidence that he was in a position to afford to do so, but had, as referred to earlier in these reasons, made a conscious choice to dispense with legal representation, feeling it was unnecessary.
Whilst these proceedings are, in one sense, determined in the absence of Mr Dishman, it is clear that Mr Dishman was, in fact, present throughout the hearing of the matter and submissions put by counsel for the wife, being seated in the body of the Court, taking notes.
Mr Dishman was not directed to remove himself from the Bar table and was not excluded or precluded in any fashion from participating in the proceedings. It was entirely Mr Dishman’s own choice, based upon his expressed intention to appeal the dismissal of his application for recusal.
Two further matters pertaining to due process must be remarked.
Firstly, due process must be afforded to both Mr and Ms Dishman. If the matter had not proceeded to trial, that for which it was listed, Ms Dishman would have been denied due process. Ms Dishman had done all that was required of her. Ms Dishman was present with competent counsel and ready and willing to proceed. Ms Dishman has no income at present save interest earnt upon modest cash funds at her disposal[15] and would have experienced financial consequence and delay if the matter were adjourned.
[15] See paragraph 9 of Ms Dishman’s Financial Statement filed 21 August, 2019
Secondly, having now considered the evidence of these parties, it is difficult to see how a different result to that sought by Ms Dishman would be achieved if the matter were adjourned. To the extent that a different result might be possible, it could only be a result more disadvantageous to Mr Dishman. This is apparent when the proposals of the parties are considered and particularly if regard is had to the amended orders sought by Ms Dishman but ultimately not pressed. This will be discussed separately and by reference to the proposals of the parties.
Evidence and Evidential Issues
In addressing the evidence in these proceedings, and as will be apparent from the enumeration of material considered above, I have read and considered the evidence of each of the parties. That is so notwithstanding that Mr Dishman refused to participate in the hearing.
On that basis and whilst little, if any, factual controversy arises between these parties, whenever controversy arises, I propose to resolve that controversy by reference to, firstly and if available, independent corroboration and, if corroboration is not available, by accepting Ms Dishman’s evidence for the reasons already given.
In reality, there is very little controversy between the parties, even with respect to the receipt of those inheritance funds. The highest that dispute comes to is a statement of belief on the part of Mr Dishman that the total value of the inheritance received by Ms Dishman is greater than that stated by Ms Dishman.[16] However, I am satisfied that Mr Dishman is wrong as to that which he asserts.
[16] See paragraph 90 of the husband’s trial affidavit
On the basis of the above, I propose to adopt and incorporate the chronology of events set out in the case outline document provided by counsel for the wife. The matters that are set out within that case outline document are, with the exception of matters relating to the net quantum of funds received by the wife by way of inheritance, agreed. In any event, findings of fact are made in accordance with that reflected in the chronology.
Whilst the totality of evidence is not recited within this judgement that is on the basis that the vast majority of evidence is agreed or undisputed. In the event of controversy, it should be made clear that the wife’s evidence is accepted in its totality (and the areas of contention will be separately discussed) and thus the affidavits referred to, especially the wife’s, contain the evidence considered and accepted.
Chronology of Events
| … 1958 | Wife Born |
| … 1958 | Husband Born |
| … 1984 | Parties Marry: · Parties own savings of equality · Parties own a motor vehicle unencumbered Wife working full time until Ms A Dishman was born |
| 1985 | Parties purchase property at Property F with their joint savings and a mortgage from Westpac |
| 23 April 1989 | 53. Child Ms A Dishman born [30] Wife full time homemaker and parent after Ms A Dishman was born |
| 8 March 1992 | 54. Child Ms B Dishman born[27] Wife falls ill with immune syndrome and takes 12 months to recover. She is assisted with homemaker and parent by the husband's parents |
| 1998 | Wife commenced working at employer G during school hours |
| 2001 | Parties sell property at Property F and purchase property at Property G Suburb A using proceeds of sale from Property F and a mortgage from H bank |
| July 2007 | Wife’s father dies. Wife inherits • Wife inherits Property I valued at approximately $360K-$390K • $444,910 which is placed into a Term Deposit |
| 26 June 2009 | Wife rents Property I with LJ Hooker and receives rent until 13 January 2017 of $214,701 |
| 30 March 2009 | Wife pays Ms B Dishman's school fees from rent received from Property I |
| 26 November 2009 – 2017 | Wife pays for floor boards for Property G Suburb A, have them polished and purchase of a lounge suite, and her share of a Visa Card as required by the husband |
| 2010 | Wife purchases Ms A Dishman a car from her inheritance for $10,500 |
| September/October 2010 | Parties purchase townhouse Property C financed by redrawing on their home loan and a new mortgage with H bank. It is leased by the husband's mother who pays rent to the husband. The husband pays the mortgage and outgoings. It is negatively geared 99% in the husband's name to assist the husband with his taxation |
| 13 December 2010 - 20 April 2015 | Wife expends $59,600 from her inheritance on household expenses, holidays, and improvements |
| 2012 | Wife purchases a car for Ms B Dishman for $14,000 from her inheritance |
| March 2012 2013 | Husband makes salary sacrifice towards his superannuation wife pays stamp duty of $31,500 on purchase off the plan of Property J |
| March 2014 | Parties complete purchase Property J off the plan which is fully funded by mortgage to H bank. The property is rented and the husband receives the rent and pays the outgoings and the mortgage. It is negatively geared 99% in the husband's name to assist the husband with his taxation |
| 2014 | Wife ceases employment at employer G. She has not worked since |
| 11 July 2014 | Wife receives her superannuation of $8,058.92 |
| January 2017 | Property I sold for $665,000 and the wife receives into her Q bank Account $645,490.05. She uses the funds: · to discharge $216,803 on Property G in February 2017 · pay $40,000 to K auto group for Vehicle E for the husband · painting and door knobs for $5,000 |
| 13 October 2017 | Date of separation under the same roof. Wife continues to live in the former matrimonial home |
| 17 August 2018 | Wife moves out of the former matrimonial home |
| 12 March 2019 | Orders: · Directions |
| … 2019 | Property G is sold and proceeds of sale placed into controlled money account with Matthews Dooley & Gibson Solicitors |
| 18 June 2019 | Orders: · Trial Orders |
Issues in dispute
There is no issue raised by counsel for the wife, in detailed and careful submissions put by them at the close of evidence, that challenges the proposition that the husband has been the predominant wage earner throughout the relationship. The husband is conceded to have been be hardworking and diligent in his employment. The only issue that arise with respect to the husband’s employment relates to the husband’s suggested retirement and/or inability to work in the future.
The husband deposes[17] that he had, prior to separation and on 5 August 2017 (being approximately 2 months before separation),[18] commenced a retirement process that is “irretrievable” As is submitted and I accept, there is no evidence beyond that assertion by the husband that retirement is in train or to be forthcoming.
[17] Paragraph 138 of the husband’s trial affidavit
[18] At paragraph 132 the husband deposes that the process of early retirement was initiated at the wife’s request. Paragraphs 137-142 discuss early retirement in more detail. Any reference by the husband to his present health would appear disconnected from that decision although nothing turns upon it. I accept that the husband is not presently working and has not received income since 16 August, 2019. The husband’s evidence suggests that his super can be accessed although the husband’s evidence regarding his superannuation is unsatisfactory and there is no evidence led as to income stream or lump sum elections available (if available), tax consequences and the like.
The wife is not presently in paid employment and has not been for some little time.[19]
[19] The husband suggests the wife has not worked since 1989 (paragraph 51 husband’s trial affidavit). The wife has not been in full time employment since prior to the birth of the first child of the parties in 1989 (paragraph 12 wife’s trial affidavit). The wife had limited school hour employment thereafter which ceased in 2014 (paragraph 50 wife’s trial affidavit)
There is no controversy that the wife filled the role of primary home maker and parent throughout the relationship of the parties and devoted herself to those duties.[20]
[20] Paragraphs 54-55 husband’s trail affidavit.
There is no dispute between the parties as to available assets and resources nor the value of any asset or resource. The values that are set out in the balance sheet, exhibit A, are entirely consistent with the evidence of the parties and each of them.[21]
[21] Paragraphs 13-14 husband’s trail affidavit
The husband asserts that he received a sum of $32,000 from a life insurance policy upon its maturity in mid‑1999. The money was suggested to have been used to fund extensive family travel. The wife does not cavil with this suggestion and there is no reason to doubt that it was so.
Whilst the husband asserts that he paid certain amounts[22] there is no reason to suggest that the expenditure was other than joint.[23]
[22] For example, paragraph 38 of the husband’s trial affidavit, the husband refers to expending $25,000 in resurfacing and repairs to a pool at the former matrimonial home now sold.
[23] This would be entirely consistent with the agreed evidence as to the wife’s not being in paid employment and paragraph 56 of the husband’s trial affidavit
The only areas of any significant evidential controversy, as already indicated, relate to the receipt of funds by the wife by way of inheritance and the use of those funds and a dispute between the parties[24] as to the holding of title of two investment properties.[25] In reality, however, there is little if any controversy with respect to even this evidence.
[24] But never agitated before the Court
[25] The husband’s submissions 28 August 2019 (relating to the recusal application) indicated (paragraph 9, page 2) that “As from 12 March 2019 the filed Affidavits would have reflected at least two areas of dispute: the 2007 inheritance obtained some 10 years before separation and the investment properties...”.
When the evidence of the husband[26] and wife[27] concerning the wife’s, inheritance is considered and compared there is, essentially, no controversy.
[26] Paragraphs 57-71 husband’s trial affidavit
[27] Paragraphs 29-42and 51-55 wife’s trial affidavit
It is curious that the husband asserts his belief that the wife’s inheritance had greater value than the wife asserts. [28] This might be seen as against the husband’s interests. However, doing the best I can absent the husband’s participation, this would seem to be so as:
a)The husband’s evidence might be taken as suggesting a “contribution”[29] to the inheritance; and,
b)The husband might be seen as suggesting that the wife has failed to account for portions of the funds received or prematurely disbursed such funds (to adopt the language of Kowaliw & Kowaliw (1981) FLC 91-092) justifying some adjustment pursuant to section 75(2)(o).[30]
[28] Paragraph 90 husband’s trial affidavit the husband suggests “…the inheritance seems to be worth $1,116,496”.
[29] I use the term contribution in a loose sense as the husband’s evidence speaks to that which he did for the wife’s parents (his in-laws). No such contribution need be shown. See paragraphs 57-62 of the husband’s trial affidavit and paragraphs 77-81 of the husband’s earlier affidavit
[30] This might be inferred from paragraphs 90-91 of the husband’s trial affidavit firstly suggesting that the total received was $1,116,496 and then indicating “According to my calculations the final value of the inheritance was more than $600,000 which sum remains largely unaccounted for”
Any suggestion by Mr Dishman, if that is what is suggested by him, that the wife has retained, concealed or prematurely distributed any funds from those she received by way of inheritance could not be maintained.[31] The wife has accounted fully for all funds she received.[32]
[31] Or the income the wife received from tenanting a home comprise part of the inheritance prior to its sale.
[32] By her sworn evidence to the Court and directly to the husband by the letter 23 April, 2019 previously referred to
The wife’s evidence[33] is that her inheritance comprised a property at Property I,[34] two items of jewellery and cash funds[35] with a total value of $462,475.61.[36]
[33] Paragraph 32 of the wife’s trial affidavit and annexure B
[34] Estimated value in 2009 $420,000
[35] Including shares with a value of $4,032
[36] Comprising, by reference to annexure B, the National Bank account, Company L Investment, M shares and N Bond
The wife then gives unchallenged evidence[37] that she immediately expended $237,681.36 from these cash funds. This would leave the wife with cash funds of $224,794.25.[38] There is no evidence to suggest that these funds, as held in 2009, remained at the separation of the parties in 2017. The wife has served all bank statements for the period, however, and were it a contentious issue the husband has been in a position to identify and agitate that controversy. He has not. I accept that these funds have been used within the marriage as the wife asserts and have benefited both parties.
[37] Paragraph 32 of the wife’s trial affidavit. The husband does dispute that the wife paid $20,000 to her brother for legal advice and representation (paragraphs 69-70 of the husband’s trial affidavit) and asserts an alternate explanation for part of the payments (71) but then concedes (paragraph 72) “Ms Dishman may have paid up to $20,000 altogether”. The brother is not called. The wife was available for cross-examination and not challenged. I accept the wife’s evidence in its totality.
[38] However, this was in 2009
Property I was tenanted from its conveyance to the wife until its sale (a period from 26 June, 2009 until 13 January, 2017).[39] The rental received by the wife and its application is addressed in detail in the wife’s evidence.[40] The specific amounts expended as referred to within those paragraphs[41] account for $137,425.73. The total rental received was $214,701.69.[42] This income and expenditure occurred during the marriage and over a period of seven and a half years.
[39] Paragraph 35 of the wife’s trial affidavit
[40] Paragraphs 36-50 of the wife’s affidavit.
[41] Without seeking to calculate the amounts evidenced by the bank and other statements annexed at annexures I, J, K, L, M, N and O
[42] A nett difference of $77,275.96. However, this is misleading and inflated as the amounts of expenditure set out in the statements annexed (per footnote 40) are not included.
The above must also be seen in a context, and especially following the wife’s cessation of all paid work in 2014 and especially post separation, that other than interest upon invested funds and rental income, the wife had no income of her own and was dependent upon the husband, as the household income earner, for financial support. The agreed evidence is that from December, 2017 the husband made no financial provision to the wife.[43]
[43] Paragraphs 52-53 the husband’s trial affidavit
I am conscious of that which fell from the Full Court in Mayne & Mayne [2011] FamCAFC 192:
78. It is not the Court’s function to conduct an audit of the marriage or of the relationship finances. The parties’ remedies for resolving disputes about expenditure while they are together are centred on them and them alone. Choosing one transaction from many prior to separation for different treatments, specifically “to be added-back” or notionally included in the pool of property may make doing justice and equity between the parties difficult.
There is no evidence that the wife has used funds from her inheritance, whether capital or income, for any purpose other than self-support, support of the family (including Mr Dishman) or for the specific expenditures enumerated in her material. The wife has disclosed her bank accounts for the period 25 October, 2008 to 22 March, 2019.[44] No evidence is led by Mr Dishman, taking his evidence at its highest, that could cast doubt upon this.
[44] See pages 8-10 of the Affidavit of Mr Ford filed 10 September, 2019 evidencing disclosure of bank statements for those periods
Lest I am wrong in with respect to the above, I note that the quantum involved in “unaccounted for” funds is so modest as to be meaningless as regards the orders sought by the wife and noting that those funds, at best, represent something in the nature of two percent of the total nett assets presently available.[45]
[45] $77,275.98/$3,470,833 = 2.25%
From December, 2017 and until the present, (a period of 23 months) the wife’s only means of support[46] has been to expend the modest interest earnt upon her invested funds and to otherwise have recourse to capital so as to meet her reasonable living expenses including her costs of accommodation and rehousing after leaving the matrimonial home (now sold).
[46] Paragraph 66 wife’s trial affidavit
In addition to cash funds and rental income the wife also received the proceeds of sale of the Property I in January, 2017 (some 9 months prior to separation). The nett total received was $645,490.05.[47] From these funds an amount of $216,803 was used to discharge the mortgage over the then matrimonial home.[48] $40,000 was used to purchase the car retained (and to be retained) by Mr Dishman.[49] $5,000 was expended on home improvements.[50] The wife has no doubt paid legal fees.[51] After payment of those amounts the total capital was reduced to no more than $383,687.05.[52]
[47] Paragraph 52 of the wife’s trial affidavit
[48] Paragraph 53 wife’s trial affidavit and 78 husband’s trial affidavit.
[49] Paragraph 54 wife’s trial affidavit and 79 husband’s trial affidavit
[50] Paragraph 54 wife’s trial affidavit
[51] The fees paid are not know and nor need they be. The husband does not agitate any NHC & RCH [2004] FamCA 633 consideration.
[52] Any paid legal fees are not taken into account in calculating this sum as they are not known.
The wife presently holds $224,881.[53] At 17 December, 2018 the wife had held $277,032.[54] The wife’s savings had reduced by $52,151 over this nine-month period.[55]
[53] Paragraph 37 wife’s’ financial statement filed 21 August 2019
[54] Paragraph 37 wife’s financial statement filed 19 December, 2018.
[55] If the reduction were taken as the wife meeting her reasonable living expenses, and there is no evidence to the contrary, then this represents an average expenditure by Ms Dishman of a little under $6,000 a month. Ms Paragraph 67 of the wife’s trail affidavit also goes to the issue. Ms Dishman has not, appropriately so as no spouse maintenance order is sought, completed part N of the financial statement and thus her expenses are incomplete. A self-support expenditure of $6,000 per month is not inflated and is comparable with the husband’s monthly expenditure. If extrapolated over 2 years this would be expenditure of $144,000 and easily explain the reduction, if such a reduction has occurred, in funds held by Ms Dishman since separation. This is explored only as the Court is deprived of exploration of the issue in cross examination due to Mr Dishman’s refusal to participate.
During the relationship, the parties purchased two investment properties. One at Property C[56] and one at Property B.[57] Funds were applied by both parties towards the purchase, either from their resources accumulated during the relationship or the funds received by the wife from her inheritance. Both investment properties were purchased with the express intent of being tenanted and used as investments.
[56] Paragraphs 43 to 45 of the wife’s affidavit
[57] Commencing paragraph 46 of the wife’s affidavit
Both properties were purchased so that Mr Dishman was recorded as a 99 per cent registered proprietor and Ms Dishman as a 1 per cent registered proprietor. This was done, perfectly appropriately and legitimately, to maximise negative gearing benefits that would arise, as Mr Dishman was in paid employment and earning an income in excess of $100,000 per annum and Ms Dishman was essentially retired or in receipt of low income at the time those properties were purchased. Whilst much has been made by Mr Dishman of the registered proprietorship of those properties it is, at best, a distraction.
Firstly, the wife has never asserted anything in evidence before the Court inconsistent with the above ownership. The wife deposed that the properties were “in joint names”[58] and has otherwise confirmed the percentage ownership above.[59] The most significant aspects of the evidence with respect to the investment properties is the impact of their ownership upon the income of the parties. The wife is precluded from receiving Centrelink as she is a registered proprietor (albeit 1%)[60] and the husband is able, with negative gearing losses, to generate tax refunds which have, since July, 2017, totalled $29,624.83.[61] That is income that the husband has, by and large and exclusively since separation, retained as against the wife.
[58] Paragraph 27 of the wife’s first affidavit
[59] Paragraph 45 of the wife’s trail affidavit. This was also confirmed to the husband in correspondence from the wife’s legal representatives 7 August, 2019 as above.
[60] Paragraph 27 of the wife’s earlier affidavit
[61] Exhibit B
There is no controversy that the wife does not have superannuation entitlements at the present. The wife’s superannuation entitlements, modest as they were, were cashed in upon the wife’s retirement from employment. Those funds are alleged by the wife, and I accept, applied towards either her current savings or the matrimonial expenses of the household.
The husband has been in full-time paid employment throughout the relationship, as already observed. From 2012 the husband commenced to salary sacrifice so as to increase contributions towards his superannuation entitlements. Whether that has continued with respect to the husband’s periods of long-service leave and annual leave is unclear.
There is no dispute between the parties that the wife now has no superannuation entitlements, whereas the husband’s superannuation entitlements are agreed as comprising two funds, one an accumulation fund and one a defined benefit fund. The value of those funds is agreed with values of $106,669 and $1,247,878 respectively (totalling $1,385,547). On the basis that neither party seeks a superannuation splitting order, these funds will, of course, be retained by the husband for his sole benefit. It is, accordingly, of great assistance that the parties are agreed as to their value and that the wife has obtained form 6 responses from the fund clearly corroborating those values (although in reality they are not in dispute).
I otherwise accept that the present asset position of the parties jointly is as set out in the balance sheet, exhibit A. The total available assets and resources of the parties, including superannuation, have a nett value of $3,470,833.
I do not propose to canvass the evidence in any greater detail. There is no further factual controversy between these parties.
It is, again, highly regrettable that the parties have not been able to focus their attention upon a resolution of this controversy in light of the very limited factual disputes between them. The matter is, and at all times has been, readily amenable to consensual resolution or arbitration.
That the matter proceeds to a final hearing before the Court would appear to be disadvantageous to both parties, particularly as the wife has incurred legal fees in prosecuting the case in circumstances where the husband has been self-represented.
Determination
As the High Court has been clear in Stanford v Stanford [2012] HCA 52, I must follow three steps in arriving at a determination of these proceedings. Firstly, I must identify the present legal and equitable interest in property of these parties. Secondly, I must assess their contributions holistically. As discussed in Jabour & Jabour [2019] FamCAFC 78, I must have regard to the “myriad” contributions of the parties. Thirdly, or lastly, I must consider each of the section 75(2) factors which are suggested as relevant by the evidence in the case.
In all that is done in the application of the legislative provisions to the facts of the case, justice and equity must be done. It is not a final step, where one looks back at the above three steps to ensure that the outcome arrived at is just. It is an inherent requirement that the Court be satisfied that any order to be made is just and equitable and that justice infuses each of the above three steps.
I do not suggest that the High Court in Stanford v Stanford has suggested that a threshold be met, whereby the parties must satisfy the Court, from the outset, that the making of any Order is just and equitable. It cannot be assumed that an adjustment will be made but whether an adjustment is made is determined by balancing all of the evidence and determining what adjustment, if any, should be made.
What their Honours were perhaps saying is twofold. Firstly, the Court must be satisfied that it is appropriate to exercise jurisdiction, bearing in mind the specific facts and circumstances of Stanford v Stanford, and, secondly, that it should not be assumed that an Order will be made purely because one is sought. The Court must be satisfied that it is just and equitable to make an Order.
I am satisfied, certainly, that the assumption of jurisdiction is appropriate. That must be so if one has regard to the passage of Stanford v Stanford commencing at paragraph 42 and which I incorporate herein:
42 In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
These parties have separated. The parties owned and continue to own property to which, I am satisfied, each has contributed and each party has, perhaps more so the wife, contributed to and within their relationship in ways which cannot and need not be connected to specific property.
In assessing the present legal and equitable interest in property held by these parties, it is clear that the most assets are held jointly and some are held solely or predominantly by Mr or Ms Dishman. It would be unjust and inequitable to not permit Ms Dishman to conduct her case. Each party concedes that Orders adjusting interests should be made
The Present Legal and Equitable Interests in Property of the Parties
The present legal and equitable interest of the parties in property together with their financial resources (superannuation) and liabilities are agreed or clearly established on the evidence.
I accept the balance sheet, exhibit A, as an accurate reflection of the assets, liabilities and resources of the parties and I incorporate that balance sheet.
| ASSETS | Ownership | Description | Value |
| 1 | Joint | Proceeds of sale Property G | $1,205,274 |
| 2 | Tenants in Common[62] | Property B | $1,100.000 |
| 3 | Tenants in Common[63] | Property C | $650,000 |
| 4 | Wife | Funds at Bank | $224,881 |
| 5 | Husband | AMP Shares | $2,007 |
| 6 | Husband | M Shares | $15,287 |
| 7 | Husband | Westpac Choice Account … | N/K/$0[64] |
| 8 | Husband | Q bank … | $5,372 |
| 9 | Husband | Q bank Offset Account | $0 |
| 10 | Husband | Vehicle E | $30,000 |
| 11 | Wife | Vehicle D | $4,000 |
| TOTAL | $3,236,821 | ||
| LIABILITIES | |||
| 12 | Joint | Mortgage Property B | -$736,034 |
| 13 | Joint | Mortgage Property C | -$357,501 |
| TOTAL | -$1,120,535 | ||
| SUPER | |||
| 14 | Husband | O Superannuation (accum) | $106,669 |
| 15 | Husband | P Superannuation (Def Ben) | $1,247.878 |
| TOTAL | $1,354,547 | ||
| FIN RES | |||
| 16 | Joint | Interest on Item 1 | $6,207.98 |
| TOTAL | $6,207.98 | ||
| NETT TOTAL (ALL) | $3,477,040.98 |
[62] 99% held by Mr Dishman and 1% by Ms Dishman
[63] 99% held by Mr Dishman and 1% by Ms Dishman
[64] There is no evidence that the account exists (it is not disclosed in the husband’s Financial Statement 4 March, 2019 and I propose to treat the account as $0
The Parties’ Proposals
Ms Dishman, by her Application, seeks a suite of orders. Mr Dishman’s Response makes clear that a number of the orders sought by Ms Dishman, are agreed.
In essence, Ms Dishman seeks that two parcels of real estate, the investment properties at Property B and Property C respectively, be transferred into the sole name of Mr Dishman (the properties are presently owned as to 99 per cent by Mr Dishman and 1 per cent by Ms Dishman). Ms Dishman seeks that simultaneous and contemporaneous with transfer that Mr Dishman pay to her a sum of $350,000 and refinance the mortgages encumbering those properties.
Orders are sought for sale of those properties and distribution of the proceeds of sale if necessary to enforce and guarantee payment to Ms Dishman of the sum of $350,000 or if necessary to cause Ms Dishman’s release from liability for the mortgages.
Ms Dishman otherwise seeks to retain Vehicle D (in her possession and registered in her sole name) and that Mr Dishman retain Vehicle E (in his possession and registered in his sole name).
It is possible that Mr Dishman can elect to structure the receipt of superannuation funds, particularly from the larger of the two funds, (being a defined benefits fund), so as to maximise benefit to him in combination of capital and income. However, the evidence is deficient, not being led by Mr Dishman, and, certainly, insufficient to enable any proper or accurate assessment to be made as to whether this is possible. They are matters entirely for Mr Dishman.
Whilst there are potentially sales costs and capital gains tax liabilities which might be triggered by a sale of either of the investment properties (and absent the ability to withdraw funds from superannuation or borrow privately, it is probable that the sale of one or both investment properties would be triggered) in the absence of specific evidence from Mr Dishman in admissible form, the best that can be done is to acknowledge that these expenses are probable and to, again, temper the adjustment which Ms Dishman would otherwise be entitled to.
The tempering of any adjustment in favour of Ms Dishman by reference to the above factors is already undertaken as discussed. Ms Dishman would, even with all factors favouring Mr Dishman taken into account, be entitled to receive at least that which she has sought – 51.5% of the total pool.
For those reasons, I am satisfied that orders can and should be made in accordance with Ms Dishman’s Application, and being the orders, absent any plea for superannuation splitting, (which plea was not pressed at trial), set out in the case outline document provided by counsel for Ms Dishman.
The net effect of those orders, as already observed above, is that Ms Dishman will then receive:
a)The totality of funds presently held in the controlled monies account including interest, namely, $1,205,274 together with interest of not less than $6,207.98 (total $1,211,481.98);
b)A cash payment from Mr Dishman of $350,000;
c)The balance held by Ms Dishman in her bank accounts at present, $224,881;
d)Ms Dishman’s motor vehicle, $4,000.
Total: $1,790,362.98
Mr Dishman will retain:
a)The Property B investment property, $1,100,000;
b)The Property C investment property, $650,000;
c)Less the mortgage encumbering the Property B, -$763,034;
d)Less mortgage encumbering Property C, -$357,501;
e)Husband’s AMP shares, $2,007;
f)Husband’s ING shares, $15,287;
g)Q bank offset account, $5,372;
h)Husband's motor vehicle, $30,000;
i)Husband’s superannuation entitlements (item 14 and 15 of the balance sheet), $1,354, 547
j)Less payment to wife -$350,000
Total: $1,686,687
Additional Matters
The only issues not specifically addressed by the above discussion is the retention by Mr Dishman of the Q bank offset account. There is little reference in the evidence to the account, save Mr Dishman’s assertion that Ms Dishman has not made any contribution to the offset account. This may well fall within the category of hyperbole asserted by Mr Dishman throughout his evidence, claiming contributions made during the relationship as his own, on the basis that the income which went towards meeting expenses or accumulating assets, absent the funds introduced without controversy by Ms Dishman, were derived from Mr Dishman’s wages and earnings.
However, on the basis that the properties would be retained by Mr Dishman and, thus, the mortgages relating to them refinanced by him, it would appear appropriate, absent any submission to the contrary, that he also retain that offset account.
For those reasons, orders are made as follows.
I certify that the preceding one hundred and fifty-nine (159) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 8 October 2019
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