DOBBIE & BOLDEN
[2014] FCCA 1911
•11 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DOBBIE & BOLDEN | [2014] FCCA 1911 |
| Catchwords: FAMILY LAW – De facto property dispute – short relationship of just over 3 years – absence of real property – bitter chattels dispute – evaluation of applicant’s contributions as homemaker – applicant’s position grossly overoptimistic – applicant in poor health and parlous financial position – application for spousal maintenance granted with sunset clause – consideration of claims for annual leave and payment in lieu of notice brought in the Court’s accrued jurisdiction. |
| Legislation: Family Law Act 1975, ss.90SB, 90SF, 90SE, 90SE(1), 90SM |
| Stanford v Stanford [2012] HCA 52 Bevan & Bevan (1995) FLC 92-600 Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 121 |
| Applicant: | MS DOBBIE |
| Respondent: | MR BOLDEN |
| File Number: | MLC 3842 of 2013 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 25 June 2014 |
| Date of Last Submission: | 25 June 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 11 September 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Thompson |
| Solicitors for the Applicant: | J. A. Middlemis |
| Counsel for the Respondent: | Mr Davis |
| Solicitors for the Respondent: | Westminster Lawyers Pty Ltd |
DRAFT ORDERS
(omitted) Pty Ltd be joined nunc pro tunc as a respondent to the proceeding as a second respondent.
That within ** days the first respondent cause the second respondent to pay the applicant $** in respect of annual leave entitlement.
On or before 18 September 2014 the Applicant’s chattels as determined by the judgment in this proceeding will be delivered to (omitted) Self Storage, (omitted) for collection by the Applicant on or before 23 September 2014.
Save for the chattels disposed of by the judgment in this proceeding:
(a)each party be solely entitled to the exclusion of the other, to all property (including choses-in-action) in the possession or name of such party as at the date of these orders.
That within 7 days of the date of these orders, the Applicant shall return to the (omitted) Police Station for the collection of, and the retention by, the Respondent, the BMW motor vehicle registration (omitted).
The Respondent pay the Applicant $300 per week by way of spousal maintenance for 18 months that succeed the delivery of these orders.
The Applicant is to file and serve any materials in respect of annual leave on or before 25 September 2014.
The Respondent is to file and serve any materials in respect of annual leave on or before 9 October 2014.
IT IS NOTED that publication of this judgment under the pseudonym Dobbie & Bolden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 3842 of 2013
| MS DOBBIE |
Applicant
And
| MR BOLDEN |
Respondent
REASONS FOR JUDGMENT
Introductory
This is a property dispute in which there is only chattels to be divided. The applicant also seeks a spousal maintenance order pursuant to s.90SE of the Family Law Act 1975 (“the Act”) and seeks, in the accrued jurisdiction of the Court, payment for alleged unpaid annual leave and salary.
While I am satisfied that the relationship subsisted for at least two years and thus meets the criteria in s.90SB, which acts in part as a springboard to enable claims for spousal maintenance (s.90SE) and property division (s.90SN) to be made, this was on any view a very short relationship lasting at the absolute most under three and a half years.
For the reasons that follow, and bearing in mind the extremely unusual particular circumstances of this case, I am going to order the respondent to pay the applicant $300 per week by way of spousal maintenance for the eighteen months that succeed the delivery of these orders.
I will additionally do my best to sort out the rather tawdry squabbling over disputed chattels. In particular, I will order that a BMW motor car presently in the possession of the applicant be returned to the respondent for him to deal with as he sees fit.
Albeit that it involves a third party that was not formally joined to the proceedings I will, despite being initially of the contrary view, order that the respondent de facto husband’s company (omitted) Pty Ltd (“(omitted)”) be joined as a party to the proceedings nunc pro tunc and ordered to pay the applicant de facto wife the annual leave to which she is entitled pursuant to statute.
Some Agreed Facts
The applicant was born on (omitted) 1965 in (omitted) in (country omitted) and came to Australia in 1999. She is in poor health with a number of particular difficulties which, while not conceded by the respondent, are clearly established. I will return to this aspect of the matter later.
The respondent was born on (omitted) 1961 and is in unexceptional health. He has his own business, (omitted), but that is a company wholly owned by him and is, realistically, a simple corporate extension of him. He runs his business as a (omitted) very successfully and his most recent declared annual income is in excess of $190,000. Historically his income net of business expenses has tended to be either side, it would appear, of $200,000.
The parties met through an internet dating site in 2009. Each asserts that the other was still in a relationship at that time and neither appears to deny the assertions made by the other.
Although in my view nothing ultimately turns on it, there is a dispute as to when intimacy began between the parties, indeed when they first met, and when they commenced cohabitation.
The respondent has a daughter, X, born (omitted) 2002 who was living with her mother primarily at the time the time the parties met. It will be necessarily to return to this matter also.
It is agreed that X moved into the full time care of her father in April 2012.
The respondent through his company (omitted) employed the applicant from the commencement of 2010 until the relationship ended in March 2013. An Intervention Order associated with the end of the relationship following an alleged assault upon the respondent by the applicant was made on 18 April 2013.
It is conceded that the applicant’s employment, as I have indicated, was ended forthwith upon the end of the relationship on 12 April 2013.
Disputed Matters – the Parties’ Affidavit Material
In her affidavit filed 16 May 2013 the applicant, in addition to giving a number of details which are set out in the agreed passages above, deposed to being unemployed and living in shared cost accommodation. She asserted she was in poor mental health arising from the breakdown of the relationship.
The applicant deposed that she met the respondent in April 2009 via an internet dating site and that the parties commenced cohabitation in December 2009 when the respondent moved into the applicant’s townhouse in (omitted).
The applicant deposed to being employed as a (occupation omitted) by (employer omitted) from January 2010 onwards and to having reduced her work to part time in August 2010 whilst undertaking IVF and also undertaking primary care of X. She deposed to stopping work completely in about January 2011.
The applicant deposed to having suffered in the past with depression and attention deficit hyperactivity disorder. She annexed a report from Dr H, her psychiatrist, which was subsequently the subject to objection (but Dr H swore an affidavit anyway). The applicant deposed to being unable as a result of her mental health to undertake full time employment.
The applicant went on to depose to having been the primary carer of X from April 2011 when she came into the respondent’s care and to having undertaken IVF treatment from early 2010.
The applicant deposed that in October 2012 she obtained the sole and exclusive use of a BMW motor vehicle which had been provided to her, as she had thought at the time, as a gift. She deposed to a Mitsubishi car of her own which was located outside the (omitted) property from which the applicant had been removed by an Intervention Order made in April 2013.
The applicant set out details of the respondent’s financial circumstances which in my view have been overtaken by events. She deposed to the circumstances giving rise to the Intervention Order already referred to.
She deposed further that at the time of her eviction from the (omitted) property she possessed $10,000 being the net amount received from the respondent for litigation against her former dentist for negligence and to having withdrawn $13,000 cash from a credit card in the respondent’s name to which she was a supplementary cardholder at the time of separation.
The applicant also complained that the respondent had not permitted her to collect her personal belongings from the (omitted) property.
The respondent’s affidavit filed 31 May 2013 replied in detail to the applicant’s affidavit. Relevantly for these purposes the respondent challenged the applicant’s history of the meeting of the parties. He said that the parties did not meet face to face until December 2009 and did not commence cohabitation until September 2010. He deposed the applicant was in a relationship with Mr C until January 2010. He deposed to having moved into the applicant’s rental property in (omitted) in September 2010.
The respondent asserted that the applicant commenced IVF treatment in or around August 2010, but denied that X was in his primary care from 2011 onwards. He deposed that X lived with his former wife until April 2012. He denied that the applicant stopped work completely in January 2011 and deposed that she continued to work part time for his company from home.
The respondent took issue with the capacity of the applicant to work and essentially said that she was well capable of doing so. He denied obstructing the applicant collecting her chattels. He put in issue the extent of the applicant’s ill health.
The respondent deposed at paragraph 26 that:
“… the Applicant has been an employee of my company throughout our relationship. That employment arrangement ceased upon separation. The employment arrangement between the Applicant and my company was that her wages would be paid into her own bank account with the (omitted) Bank.”
The respondent went on to deny that the applicant was provided the BMW car as a gift. The respondent deposed that this was part of the applicant’s employment. At paragraph 29, the respondent deposed:
“The Applicant was present at the BMW dealership when this vehicle was purchased. As such, she was also fully aware of the finances associated with this BMW motor vehicle as she was at the car dealership when the finance papers were signed.”
The respondent admitted that the applicant’s Mitsubishi car was at his home but denied it was inoperable. He sought the immediate return of the BMW vehicle.
The respondent went on to give details of his employment which he deposed is conducted in a close relationship with (omitted).
The respondent denied having any funds left in his (omitted) Bank account, these having been originally part of the property settlement from his previous marriage, and deposed that the sums concerned were essentially dissipated, including the $10,000 he gave to the applicant on 25 March 2013.
The respondent indicated that he had a taxable income of $211,000 in the 2011 tax year and $203,199 as a draft return for the 2012 year.
Otherwise the affidavit was largely a series of challenges to the applicant’s account, which tended to belittle or underplay matters asserted by the applicant.
The applicant filed a further affidavit of 24 February 2014. It was essentially concerned with an application, no longer pursued, to spend time with X. It fleshed out so to speak the alleged contributions made by the applicant in the care of X but does not otherwise take the matter further.
The respondent’s affidavit in reply filed on 26 February 2014 took issue with the applicant’s assertions but does not in my opinion take the matter much further.
I note the affidavit asserts in effect bad faith in the applicant’s desire to spend time with X in terms that in my view do him little credit.
The applicant’s trial affidavit filed 3 April 2014 largely reiterates matters already put. I note that she annexed D-1 a letter to the applicant from the respondent stating inter alia:
“November 1, 2009 was the day I met the girl of my dreams.”
I further note that the applicant revealed she was now in receipt of Centrelink benefits and had been, “for about 10 months”. She had also had a short period of employment for two weeks in December 2013. The applicant gave further details of significant health issues at paragraph 6 of the affidavit including type 2 diabetes, high blood pressure and elevated cholesterol, cardiac problems (involving a surgical procedure in February 2014), depression, shortness of breath, post-traumatic stress and bladder incontinence arising from her IVF program.
The applicant deposed on this occasion that the post-traumatic stress disorder was understood to arise out of violence by the respondent during the relationship and specifically when he had forced sexual intercourse on her on two occasions according towards the end of the relationship. She annexed at D-2 a true copy of a police statement with relation to these matters.
It should be noted that annexure D-2 recounts not just two alleged sexual assaults towards the end of the relationship but a further one allegedly in late November or early December 2009. On the version of the events recorded to the police the respondent raped her on that occasion.
The applicant deposed to being paid $60,000 per annum by the respondent’s company. I note that she said that in January 2011 she continued to work from home for the respondent’s company.
She further deposed at paragraph 20 that she had never been paid holiday leave by the respondent’s company, nor had she received any superannuation contributions from him. She estimated being owed about $13,850 in annual leave, approximately $17,000 of superannuation contributions and $4,200 for one month’s salary in lieu of notice.
She repeated that she commenced IVF treatment in February 2010 and that it lasted about 18 months.
She also gave a history of the litigation against her former dentist, noting that the funds eventually received were paid in fact to the respondent.
The affidavit raised a number of other criticisms of the respondent which is in my view not necessary to deal with in any detail.
At paragraph 39 the applicant deposes as to the BMW car as follows:
“The respondent provided me with a BMW i120 motor vehicle (registration number (omitted)) in or about October 2012.
The respondent told me (and mentioned in front of my friend – (omitted)) that this was my birthday and Christmas present in one.
The respondent held out to me that the motor vehicle was my gift. I did not trouble myself with the financing arrangements. I now understand that the vehicle was financed through the respondent’s business. I saw the vehicle as a gift and I have continued to use it and I seek a transfer of it to me.
The respondent has sought the return of the vehicle and has constantly involved police telling them that I have stolen the motor vehicle. I say that the respondent gave me the BMW as a gift for birthday and Christmas combined.”
The applicant deposed to assistance allegedly given to the respondent during his prior matrimonial proceedings.
The applicant went on to say that she had been significantly psychologically damaged by the relationship and was suffering post‑traumatic stress disorder as a consequence of his assaults upon her. She deposed that she would not be able to work as a result.
The respondent’s affidavit sworn 14 April 2014 was essentially a reprise of earlier materials. I note that he deposed that the $13,500 withdrawn from his MasterCard in 2013 was the final remaining balance of the applicant’s settlement from her dental negligence claim.
In relation to the separation on 12 April 2013 in addition to reiterating his version of events the respondent annexed B-3 being a photograph taken on the day of the alleged assault.
The respondent detailed a number of what he described as unsuccessful or withdrawn applications by the applicant and asserted in terms at paragraph 42:
“The Applicant and I were only together for 2 years and 7 months. Despite this short relationship, the Applicant has gone out of her way to make dubious applications or false allegations against me. I view the applications or allegations by the Applicant as being vexatious.”
In dealing with the applicant’s employment by (omitted) the respondent deposed that the applicant had made a complaint to the Australian Taxation Office (“ATO”) about superannuation and that as a result he would have to pay $20,783 to the ATO, and that he had commenced to do so.
In dealing with the assets and liabilities of the parties as they are now, the respondent detailed $42,242 held upon trust by Taussig Cherie Fildes towards anticipated capital gains tax and superannuation on his part of $87,498. I note his credit card debts were asserted to be $45,000.
I note that at paragraph 76 the respondent asserted:
“The Applicant is 49 years of age with no significant health concerns.”
The tenor of the respondent’s affidavit is in part in my view carping. I note that he says the sexual relationship commenced after 3 December 2009, the date upon which he separated from his former wife.
He also asserts that the parties did not cohabit until September 2010 and were dating only, residing in separate homes, until that time.
I note that the position asserted by the respondent was that the applicant’s claims in relation to her employment were matters that should be dealt “with the relevant authorities”.
The applicant filed an amended Initiating Application on 29 May 2014. She sought spousal maintenance of $1,050 per week for three years, orders to enable her to own the BMW car, the return of chattels set out in annexures to the application, a superannuation split (no longer pursued) and payment of accrued holiday leave (18 weeks) in a gross amount of $24,923, one months’ salary paid in lieu of notice in a gross amount of $6,000 and contributions to a superannuation fund (the respondent having already deposed that he had paid the amounts required by the ATO).
An Affidavit in support filed 27 May 2014 asserted that the applicant was receiving Centrelink benefits (Newstart) of $510 per fortnight, was continuing to pay rent in an amount of $220 per week but she had received 50 per cent of her rent from Eastern Domestic Violence Services for the last four months.
The applicant deposed (paragraph 6) to continuing to experience a number of health issues including post-traumatic stress, “which I say arises out the respondent’s sexual assaults (rape) during the relationship”, chest pains with an uncertain cardiac condition, type 2 diabetes and infections in her gums and loose teeth requiring dental treatment.
The applicant also took issue with a valuation of the respondent’s business prepared by Mr M previously filed.
The Affidavit of Mr M
It is not in my view necessary to deal with the affidavit of Mr M in any detail. It was his opinion that the (omitted) business, being as it was a business conducted by one person, was not susceptible of being sold. It does not appear to me that that is now challenged.
The Affidavit of Dr H
Dr H’s affidavit filed 16 April 2014 sets out relevantly his report upon the applicant. He has been treating the applicant since 2008 for depressive and anxiety symptoms related mainly to post traumatic stress disorder. Dr H recorded:
“… This was related at time of referral to a sexual assault she suffered when a teenager in (country omitted) where she was born and grew up.”
Dr H also recorded:
“I was seeing her one to four weekly throughout 2013 when she was in a traumatic relationship with her de facto Mr Bolden when they separated in early 2013. Ms Dobbie was very traumatised by events at this time, she alleged assaults including sexual assaults, and harassment by Mr Bolden during this time. This has placed her in a very distressed and traumatised state with ongoing harassment over settlement of possessions and monies from this relationship. She has lived in refuges and emergency accommodations for much of this time.
This has unfortunately left Ms P in a state where she is depressed, anxious and avoidant, has made her fatigued and poor in concentration. It has exacerbated her physical health problems. Including Diabetes type 2 and high cholesterol. She takes the antidepressant edronax, antihypertensive and cholesterol lowering medication. She has thus been unfit to work from early 2013 and remains so. She is having trauma counselling and cognitive behavioural therapy for depression.
At this point I would not expect her to be fit for any work for another 12 months. She has ongoing disabling symptoms as above which leads to needs for frequent therapy which adds to the difficulty of doing any work. I would hope that after 12 months she would be well enough to begin some work but it is hard to be certain at this point. There is risk of vulnerability to exacerbations in her illness for the remainder of her life.”
The Evidence Given at Court – the Applicant
In evidence-in-chief the applicant gave evidence that she is unemployed, that she is presently in a rental property in which three people live in the house. She said she would like to get her health on track, resolve her heart condition and then look for work. She said she would notify the respondent if she could obtain work.
The applicant said she has borrowed $10,000 from Mr R, a friend, and confirmed that work is still to be done upon her teeth although nothing is owed at the moment.
The applicant was taken to annexure A to her further amended Initiating Application and confirmed that she owned everything on it save for five items. These were six pictures being prints from Paris, two couches, a steel statue owned by the respondent, a little table, some dishware and a barbeque (to my way of thinking this is six items but that is perhaps also carping).
She said her house was already set up when the respondent moved in.
In response to a request from the respondent for two iPads and a phone she denied having the iPads and said that the phone had effectively been taken already by the respondent. She repeated that the BMW was a gift but said the Mitsubishi had not been driven for two and a half years. She said it sits on the street and is registered but not operable and she does not want it.
Under cross-examination the applicant was asked a number of questions about how much superannuation she really had. In relation to past superannuation if I may describe it (in other words not the sums obtained through the ATO from (employer omitted)) I should say that I found the applicant’s explanations convincing.
One document that is hard to construe is exhibit R1, a statement from the (omitted) Superannuation Fund showing the applicant with $18,173.22, this balance having increased from $15,400-odd dollars in July 2012.
Since it is clear this cannot have been contributions made by the respondent because his payments were only made after the contact with the ATO following the end of the employment in April 2014, this statement is difficult to understand. It would seem to me to relate to some other period of employment. Given that a superannuation split is not now sought it is perhaps not necessary for me to say more than that this aspect of the applicant’s evidence was unconvincing.
I do however accept that the applicant tried to access $10,000 from superannuation in January 2014 and was unsuccessful. The applicant may or may not have known that she could apply on hardship grounds. The evidence she gave was somewhat general in its nature.
The applicant was cross-examined about her endeavours to obtain her chattels. She gave evidence that the respondent still has her passport, her birth certificate and two files of her documents. She said that she needs a breast implant attended to as one of them is leaking as a result of assaults by the respondent (no evidence as far as I can see consistent with that assertion is before the Court) and confirmed that she still needs work on her teeth.
The applicant said that she went to the (omitted) Police Station following an incident where two people, who it seems clear were trying to repossess the BMW, had seemed threatening to her. She said that she did not know that the BMW was owned by the company. She said the respondent told her it was hers because she was helping with X and through his court case and plus this was on her birthday.
The applicant was taken to exhibit R2 which is a photograph of the applicant next to the BMW and with a plaque stating:
“Congratulations, Mr Bolden, on taking possession of your new BMW 120.”
The applicant is in the photograph pointing to the plaque. The applicant said that she had never had a new car and did not know what the photograph said. I have to say that her answers in this regard were evasive and unbelievable. It is immediately obvious from the photograph that it reflects the purchase on its face by Mr Bolden, the respondent. It is of course misleading because the purchase was in fact by (company omitted).
The applicant confirmed that she had made her complaints of rape to the police on the same day the “private eyes” had sought to repossess the car. She did however confirm that the police had informed her that they do not propose to pursue the respondent in respect of the alleged rapes.
The applicant confirmed that she had pursued work and had received two weeks’ work over the Christmas period. She said she had worked for the respondent’s company but was never given pay slips despite asking for them. She said she called clients and took flyers around, work she was good at when she was healthy. She confirmed that she had handled the administrative work for the company.
The applicant said that the work she had undertaken in December 2013 for an entity called (omitted) became too much for her. She said she was looking for work but it was hard when you are in temporary accommodation.
The applicant asserted she had asked the respondent for superannuation and he had said he was paying it. She asserted he did the same thing to his ex-wife. She confirmed following up the matter of her superannuation up through the ATO.
The applicant was cross-examined in some detail about the $13,500 taken by her at the end of the relationship. I found it not entirely easy to follow the description whereby the net $13,560 of the dental claim went into the respondent’s MasterCard but I note that the applicant said that the cheque was written in the respondent’s name because the solicitors involved were friends of the respondent.
The applicant confirmed she had not sought work in 2014 following heart surgery and she still requires further investigation as to her heart condition. The applicant confirmed that she would consider taking the BMW even if she had to make the payments on the outstanding element of the lease.
The applicant confirmed – and I accept this – that her treatment in IVF was a very unpleasant experience for her. She pointed out that her health had been compromised to an extent by the IVF treatment and the applicant’s assertion that she had suffered from some bladder incontinence as a result was not effectively challenged.
In re-examination inter alia the applicant asserted that the respondent gets money on the side from builders, and had received on one occasion a cheque for $70,000 from a builder. I have to say that this aspect of the applicant’s evidence, not previously asserted in affidavits or in evidence-in-chief, had all the appearance of involving the applicant being prepared to say almost anything she could to paint the respondent in a bad light.
The Evidence of Dr H
Dr H was called and adopted his report. He confirmed that he still sees the applicant routinely and frequently and that she is still anxious and somewhat agitated. He said that the applicant’s problems will subsist for 18 months and she is mild to moderately depressed and has been so since the beginning of 2013. She was in remission until then. She will not be capable of working this year although she has worked in the past.
Dr H referred to the sexual assaults and observed that this had reawakened adolescent trauma. The applicant needs to feel secure and safe and it will be at least one year before she is ready for work. She is on a high dose of Edronax at the moment and has high blood pressure and cholesterol as well as non-insulin diabetes and post-traumatic stress disorder.
Under cross-examination by counsel for the respondent Dr H indicated that he understood that the respondent denies allegations of the sexual assault put against him. He said that the applicant is very anxious and distressed about her relationship and there was nothing to say that she was delusional or that the matters she has alleged were imagined. The applicant was very distressed and remained consistent throughout.
He conceded that the incidents of sexual assault were not revealed until after separation but said he would not expect contemporaneous disclosure. It was often the case that such matters were not disclosed at the time at which they occurred.
Dr H said that the applicant would not be able to work for a year. She has lost confidence socially and cannot handle relationships. She is attending for counselling at the Centre against Sexual Assaults to deal with her post-traumatic stress disorder.
The Evidence of the Respondent
In evidence-in-chief the respondent gave evidence about his job as a (omitted). He confirmed that his gross income for 2013 (including profit distribution) was $193,000. He has paid very substantial legal bills and still owes some $5,000.
The respondent made an application for finance through his company and borrowed $120,000 which has effectively all gone, at least part of it in paying the superannuation claim of the applicant which he has paid albeit by instalments in full.
He said the $120,000 loaned is being repaid at the rate of $5,000 per month over 24 months. No interest is being charged by (omitted) Bank because “they like me”.
The respondent’s child, X, will go to (omitted) School next year and her school fees are likely to be approximately $30,000 per year. X is now in the respondent’s sole custody.
Under cross-examination the respondent stuck to the evidence that he had paid the relevant superannuation to the ATO. He was then cross-examined about how the parties met.
The respondent was unable to say exactly when the parties met in 2009 but denied that they started going out in August. He said they met on
1 November 2009 in (omitted). He said sexual relations did not commence in November 2009 and he did not move in with the applicant in December 2009.
He said that the letter exhibited as an exhibit to the applicant’s affidavit showing that they met on 1 November 2009 was written in January 2013. She had asked for a letter for her birthday. He said it was true and correct at the time and that he felt remorseful because the IVF treatment had not worked. The respondent’s evidence as to these matters had an element of conviction.
Areas in which the respondent’s evidence was much less believable related to a reluctance to concede that the applicant had done things for him during the relationship, and more particularly his suggestion that he was not aware that the applicant became incontinent after the IVF treatment. This is the sort of matter I would very much have expected the applicant to have traversed with the respondent given that they were then in an intimate relationship. I found his answers on this matter unbelievable.
Likewise when cross-examined about the applicant’s ongoing health difficulties he said that he was unaware of most of those now asserted. He asserted that treatment for post-traumatic stress disorder had happened before the applicant met him and he was not aware that the applicant had been treated for incontinence.
He denied ever having been violent to the applicant and denied having sex with her when she did not want to.
The respondent confirmed that he is paid on the 28th of each month by (omitted) to (business omitted) and he then pays himself from those funds. He has confirmed that his only income is from (business omitted).
He confirmed that he is divorced from his former wife and received approximately $220,000 plus the business in the settlement. The former wife received $900,000.
He conceded that the applicant had been present during his court case and that she filed an affidavit in support of him. She was X’s friend in the short time she was living with the respondent and X.
While the evidence given by the respondent struck me as being reasonably careful, his reluctance to concede anything in favour of the applicant, including her demonstrated ill health, was palpable.
The respondent gave evidence about the funds held on trust by Taussig, Cherie Fildes and I accept his explanation that the respondent is not entitled to it. It is there to pay tax on sale of his former wife’s properties. All the funds that will be available after the former wife’s properties are resolved will go on capital gains tax on a property in (omitted).
The respondent gave evidence about the transfer of $80,000 which he said was a settlement from his former wife. I found this evidence generally credible.
The respondent was cross-examined in some detail on his Financial Statement which he said was still correct. He denied putting in arbitrary figures and pointed out that he took the Age and Herald Sun every day together with mortgage finance magazines also. He said he spent $80 in the previous week on shampoos and products for his hair.
The respondent denied being a gambler and said he only very rarely goes to Crown Casino.
The respondent denied giving the BMW to the applicant on her birthday and said it was not given as a gift either. He said he drove it most of the time and that he had not given it to the applicant as an award for her support, nor had he said, “It’s yours”. Cross-examination then turned to the question of chattels with which it will be necessary to deal in terms in due course.
I note that the respondent denied having the applicant’s passport and accused her of having his. He admitted that the applicant’s home was furnished when he moved in but said that it was a small unit with three bedrooms. The remainder of the cross-examination was concerned entirely with the issue of chattels and re-examination produced nothing of any moment.
Findings on the Facts
Both parties have sought to either exaggerate or diminish the length of the relationship between them even though on any view it was a very short relationship in any event.
I accept because the correspondence shows it, that the parties first met on 1 November 2009. They were both in relationships at the time but those relationships were plainly floundering. That this is so is apparent from the ensuing events.
By no later than January 2010 the respondent had employed the applicant. While the work she did for him must have been of some assistance it seems entirely clear that this must have been a consequence of a mutual attraction. A sexual relationship must have commenced quickly, whether in December 2009 or January 2010, or the respondent would not have given the applicant a job for which as far as I can see there was no established objective need.
It seems to be common cause that the respondent did not, so to speak, formally move in with the applicant until September 2010 when he moved into her unit but the nature of the intimacy between the parties was so great as I find that they were on any view more than just a casual couple in the intervening period. The granting of what seems to have been something of a sinecure to the applicant by the respondent admits no other conclusion.
I accept that the applicant performed tasks in her employment and there is no reason to suppose they were not performed satisfactorily. I note however that from as early as January 2011 the applicant was at the very least not working full time and only working part time from home.
Whatever the motivation of the parties was the applicant commenced IVF treatment by no later than August 2010 and I accept that it probably started earlier than that, as the applicant asserts, as her evidence about this matter was given with a measure of conviction. The fact that the parties were moving to IVF treatment suggests that their relationship had been a committed one for some time before even at the latest August 2010.
There is no reason to doubt that the applicant assisted the respondent with X and I see no reason to doubt that she had a genuine affection for X. However, the respondent’s evidence that X did not move into his full time care until court orders in April 2012 is in my view believable. The amount of assistance that the applicant could have given, while doubtless helpful, cannot have been dramatic.
The car allegedly given as a combined birthday and Christmas present was not as counsel for the applicant put it, “a perfected gift”. Exhibit R2 clearly shows the purchaser (erroneously of course) as the respondent.
The applicant has asserted that the admission by the respondent that the car belonged to her was made in the presence of a friend (omitted), but (omitted) has not been called. No Jones v Dunkel point arises but on any view there is only the applicant’s assertion to go on.
It is an objective fact that the car was leased by the respondent’s company and in my view this car was given to the applicant to drive (it does not matter whether the respondent drove it sometimes as he said) as part of the respondent’s then infatuation with the applicant. This also explains in my view why the applicant continued to be paid salary right the way through until separation when it is clear that her contribution by way of employment duties was much reduced at the very least.
The timeline that emerges accordingly for me is that the parties commenced an intimate relationship by no later than January 2010. It achieved a level of commitment such that the applicant underwent IVF treatment by no later than August 2010 and probably earlier. I would find that the parties were in a de facto relationship by no later than mid‑2010 and possibly slightly earlier. The relationship at its maximum was about three years.
During the relationship the applicant worked full time for the respondent until January 2011 and only part time thereafter.
The applicant assisted the respondent during his divorce matrimonial proceedings but while she obviously helped look after X, and I see no reason to doubt the things asserted in the applicant’s affidavit as activities in this regard as they were not the subject of cross‑examination, it was a contribution that endured from effectively the time the respondent moved in in September 2010. Since X was not with her father full time until April 2012, any significant assistance given by the applicant lasted for about a year.
The Statutory Powers
As I have earlier indicated the court may only make the orders the applicant seeks pursuant to s.90SE (spousal maintenance) and s.90SM (property) of the Act.
In relation to the general discretion given to the court in s.90SE(1), the court is required to consider those matters set out in s.90SF. The general power to make orders pursuant to s.90SM requires consideration of the matters set out in that section.
The Final Positions of the Parties
Counsel for the respondent noted that there is no superannuation splitting order sought. He also conceded that there were no Stanford (Stanford v Stanford [2012] HCA 52) issues in this case. In other words, it is not in issue that the Court should make a property order.
Counsel submitted that there was no property to be divided between the parties. Counsel laid emphasis upon the fact that the allegations made against the respondent were not pursued by the police. The Financial Statement of the respondent was unchallenged and he has $70,000 in debt. There is simply no property to be divided other than the chattels. Counsel noted that the respondent’s child had been enrolled in private school well before the relationship with the applicant commenced.
Counsel accepted that it was clear that the applicant could not support herself but pointed to the fact that she had only had two job interviews in the last year. He submitted it was clear there were pre‑existing psychiatric problems.
Counsel said the $1,000 per week as spousal maintenance claimed by the applicant was clearly inappropriate in circumstances where the applicant had only lived with the respondent for about three years. There was no property available to make what was described as a balloon payment and no equity in the car.
Counsel submitted that the claims advanced by the applicant in respect of annual leave and wages were not the subject of evidence (this being incorrect in as much as the applicant had set out the claims to which I have referred) and that these matters should be left to the proper authorities.
Counsel submitted that if any spousal maintenance order was to be made there should be a sunset clause. Counsel did not make any submission in terms as to whether or not there ought to be a spousal maintenance order and if so for what amount.
Counsel for the applicant pointed to the applicant’s very difficult situation but conceded that this was a short relationship of no more than three and a half years.
Counsel pointed to the terms of s.90SF of the Act and emphasised that the issue is whether the applicant was unable to work because of her health. Counsel referred the Court to Bevan & Bevan (1995) FLC 92-600. I will return to that case.
Counsel pointed to the relative earnings of the parties and submitted that the respondent could pay close to $1,000 a week in spousal maintenance, but this should be linked to the state of the applicant’s health and capacity to work.
Counsel submitted there was a clear need for the applicant to have about $1,000 per week and that her rent alone was $200 per week.
Counsel submitted that the BMW car was a perfected gift as award for contributions in the relationship including contributions by way of undergoing IVF, looking after X and being a homemaker.
Counsel submitted the Court had power to order the company (omitted) to pay for the BMW and sought that the respondent pay out the balance of the funds at the end of the hire purchase period.
Counsel also sought that the applicant be paid her accrued employment benefits although no application was made to join the company as a party. Counsel left the issue of chattels up to the Court and sought what was described as a “modest” sum of $35,000 as lump sum spousal maintenance to set her on her feet.
Counsel for the respondent in reply submitted that there was simply no property from which to pay the $35,000 sought.
Consideration of the Spousal Maintenance Issue
Section 90SF(1) requires the court to be satisfied first that the matters in subsections 44(5) and (6) and sections 90SV and 90SD are satisfied. It is clear that s.44(5) is satisfied, s.44(6) is irrelevant and ss.90SB and SD are satisfied.
It is conceded, and in my view properly so, that the applicant is unable to support herself adequately by reason of physical or mental incapacity for appropriate gainful employment (s.90SF(1)(b)(ii)).
Although there was some faint hint of criticism as to the extent to which the applicant had sought employment, and note was taken of the fact that the applicant did achieve her several weeks employment in December 2013, the weight of the evidence is overwhelming. Dr H gave evidence within his area of professional expertise and was not shaken in cross-examination. It is quite clear that the applicant cannot work at the moment because of her mental and physical health and will be unable to do so for at least a year and in all probability a somewhat longer time than that.
The next issue that arises (and it arises under s.90SF(1)(a) and therefore might be thought to come first, (I have dealt with the applicant’s health because it is so straight forward), is the question of the respondent’s capacity reasonably to be able to pay spousal maintenance.
The respondent has a very substantial income stream and his taxable income is either side of $200,000 or near enough $4,000 per week. Of course he has to pay tax on that figure but he would still have a very substantial net income.
He is repaying $5,000 per month in respect of the (omitted) Bank Loan. Although no direct evidence was given about this, given that it was borrowings made by the company (omitted) as I understand it, or at least borrowings on behalf of that company, it is more probable than otherwise that those are repaid out of gross receipts and written off against tax as operating costs.
The respondent will also have from the start of the school year next year (a period of course only about six months away even now) a significant additional expenditure in relation to his daughter’s school fees at (omitted) School.
Additionally he has very substantial legal costs outstanding and I note that he is still involved in litigation involving his former wife. Having said all of that however, the respondent’s total expenditure as revealed by Part N of his Financial Statement is $1,370 to which must be added rent which appears to be in the figure of $860. That figure seems extraordinarily high even though it was not challenged. If that is the figure the respondent is paying he could certainly obtain satisfactory accommodation at a substantially lesser amount. The other payments set out in the Financial Statement seem to me to be consistent with the respondent’s evidence generally.
Some of the payments in the Part N of the Financial Statement seem to me to be somewhat high. $100 a week for clothing and shoes for the respondent personally, together with $100 for cleaning of the house and $50 for gardening and a further $50 for gifts and $90 for hairdressing and toiletries (of which $75 is attributable to the respondent) are all at the very least generous allocations.
In my view the respondent does have some capacity to pay spousal maintenance. While it is not possible to put an exact figure on it, it can certainly be said that it is nowhere near $1,000 per week.
I am required pursuant to s.90SF(3) to consider a number of matters where they are relevant. The reality is that the age and state of health of the respondent is unexceptionable whereas that of the applicant is parlous.
The respondent has substantial income and financial resources and has an unimpaired capacity for gainful employment. He has but little however in the way of property.
The applicant has virtually nothing, very limited financial resources and no present capacity to work.
The respondent has the care and control of X and will continue to do so for some time.
The applicant is eligible for Centrelink benefits and receives them at the rate of some $521 per fortnight.
An issue to be borne in mind is the standard of living which is reasonable in all the circumstances. The Full Court dealt with this issue in the case of Bevan & Bevan to which I have made earlier reference. At page 81,980 the Court said relevantly:
“Further we do not think, having regard to s 75(2), that this means that an award of spousal maintenance should be at a subsistence level and we think that it should pay proper regard to the factors set out in the section.”
Here, the applicant’s claims have about them an element of unreality. This relationship was so short it scarcely exceeded the two year minimum prescribed by statute. The applicant’s claims in my view have always been wildly over optimistic.
I am required pursuant to s.90SF(3)(j) to consider the extent to which the applicant has contributed to the income earning capacity, property and financial resources of the respondent. I really have dealt with this aspect of the matter already but would repeat that the applicant provided some assistance with X for a relatively short period of time and doubtless was of some assistance to him in his business. Nonetheless, it is quite clear to be that the pay and ancillary benefits that the applicant received far outweighed any contribution that she made and were more in the nature of a reward for the relationship between the two parties than otherwise.
I am required pursuant to s.90SF(3)(k) to consider the duration of the relationship and the extent to which it may have affected the earning capacity of the party whose maintenance is under consideration.
The relationship was, as already said more than once, a very short one. The question then arises as to the extent to which the relationship impacted upon the applicant’s capacity to work. In my view the medical evidence is reasonably clear. The applicant has had a troubled history including a sexual assault in her teens which continues to affect her. Nonetheless, the relationship and its breakdown has given rise to significant mental ill health on the part of the applicant. The medical evidence was clear.
This raises the unpleasant issue as to the extent of assault including rapes by the respondent on the applicant.
I have already noted that one of the alleged rapes took place at the very inception of the relationship. I regret to say that I find it impossible to believe that the applicant would have continued her relationship with the respondent if he had indeed raped her at its outset. This is, whether she now believes it or not, an invention. This is a significant finding to make and I bear in mind the terms of s.140 of the Evidence Act 1995. Nonetheless, common sense and ordinary human experience leads me to believe that the applicant for whatever reason has either invented or reconfigured some event that actually did occur into something it was not.
That finding throws the other two assertions of rape into considerable question. There is no doubt that the applicant assaulted the respondent as the photographs exhibited by the respondent show. I am not satisfied that the respondent ever assaulted the applicant, and I am still less able to be satisfied that he ever raped the applicant. Once again s.140 of the Evidence Act is relevant.
While making it clear therefore that I do not accept the assertions of assault and rape by the respondent of the applicant, it is equally clear that the relationship as a whole has had a very damaging effect upon the applicant. The IVF treatment was very unpleasant for the applicant and this, interrelated with the breakdown of the relationship, has unquestionably had a bad effect upon the applicant’s physical and mental health and her interrelated incapacity to work.
The only other matter it seems to me relevant is s.90SF(3)(q). I note that the respondent is in receipt of small amounts of Child Support from X’s mother. In my view it is of no moment in the scheme of things.
Conclusion on the Spousal Maintenance Application
In my view taking into consideration all the relevant circumstances outlined above the respondent should pay the applicant the sum of $300 per week in spousal maintenance. This should continue until either 18 months from the date of these orders or when the applicant commences work. The applicant will be ordered to notify the respondent if she achieves employment.
This payment will more than cover the applicant’s rent and leave her with additional funds. It is an amount which in my view it is possible for the respondent to pay bearing in mind his financial circumstances and it is a sum that is reasonable for him to pay balancing all the relevant considerations. The sunset period I am putting in seems to me to be entirely reasonable. The medical evidence is that the applicant certainly cannot work for a year and her prognosis thereafter is uncertain.
Even if the medical evidence was firmer and extended to a period greater than it does, I would not regard it as appropriate to order the respondent to pay maintenance for a period of more than a year and a half given the brevity of the relationship itself. Were it not for the concession that this is not a Stanford case, I would myself have had considerable doubts as to whether the applicant was entitled to any family law remedy whatever arising from the relationship.
It goes axiomatically with what has been already said that the applicant’s claim for a lump sum of $35,000 will not be granted. The respondent would in my view have the very gravest difficulty in meeting any such order as he would plainly have to borrow further funds. In any event, it is not just and equitable in the circumstances to impose an impost of that sort arising out of a relationship of such brevity during which it must be remembered the applicant had considerable benefits out of proportion to any commitment she made either by work or homemaking.
The Chattels Issues
I accept that the applicant had a fully furnished home when cohabitation commenced. It is more probable than otherwise that the respondent brought relatively little into the household in a general way. Against those general observations I come to the lengthy list of chattels in dispute which I will deal with seriatim. I note that the parties were content to work from exhibit A5 as a convenient list of the various items in dispute.
Effectively only the respondent was questioned about these chattels. The evidence is scarcely satisfactory. I have done the best I can on what is necessarily a rough and ready basis.
I note that each of the parties has accused the other of abstracting their birth certificate and/or passport and the applicant has sought the return of two filing cabinets containing her personal paperwork. I am unable to make any findings as to who has any of these documents and the parties will simply have to do the best they can to obtain replacements.
Bamboo Lamps
The respondent said there was one such lamp that he knew of and that if there were two the applicant could have them. The applicant will therefore retain the one that is known to exist and the other one if it can be found.
(omitted) Blu Ray Disc Player Model
If I understood the matter correctly that is conceded to belong to the applicant.
Large 3D Plasma Screen TV
The respondent said that the large 3D plasma screen TV was bought by him. He said the applicant could have the plasma screen in X’s room (which turns out scarcely surprisingly to be much smaller). I will return to this item.
Item C: Various Items of Furniture
This was conceded to be the applicant’s.
Item D: Carved Mahogany Centre Table with Glass Top
The respondent conceded that this was the applicant’s but said the glass has been broken for years.
Item E: Living Room Curtains and Rods
The respondent had said he paid for these. On any view, if they are in the living room as curtains and rods they should stay there.
Item F: CD Collection
This was conceded to be the applicant’s as were items G, H and I.
Item J: (omitted) Decorative Plates
The respondent said these were bought jointly between the parties and he had paid for them. It seems to me that the applicant should have these as they were plainly brought in the context of the relationship, and they seem of their nature to be a gift to the applicant.
Item K: Silver Lanterns Four Large and Medium
The respondent said he did not know what these were but the applicant could have them.
Item L: Rectangular Decorative Wall Art Framed Silver Necklace
The respondent asserted that this was paid for by him and was not a gift. The receipts tended by the applicant are scarcely decisive. On the balance and doing the best I can this chattel seems something more suited to the applicant than the respondent and she should retain it.
Item M: (omitted) Silver Square Decorative Silver Frame
The respondent conceded that the applicant ordered this and paid for it on his MasterCard. He said that he had therefore paid for it. It seems clear that this was bought by the applicant essentially for herself and she should retain it.
Item N: Silver Lamps
It was conceded by the respondent to be the applicant’s although he said there were only two silver lamps. They will be returned to her.
Item O: Cream Living Area Rug, Coffee Tables Times Two
The respondent says these were bought together and one had been thrown away. In the circumstances they should be the property of the applicant as they were obviously bought at her insistence.
Item P: Three Nestle Table under Birdcage
This was conceded to be the applicants as was item Q, two tables near the wall cabinets/mahogany.
Chicken Coops
It is a measure of the parties’ conflict that they are occupying the Court’s time over chattels of this sort. If I understood it right it was conceded that the applicant’s chickens live in those chicken coops and she should therefore have them.
Items R, S and T
Are conceded to be the applicants.
Item U: Half of All Photos We Took While Together
The respondent said that the applicant already had these but I have been pressed to make an order in any event. Costs of any copying should be paid by the applicant.
Item V: Stone Candleholder Black
It is the respondent’s position that the applicant already has this. I accept that assertion.
Item W: Six Decorative Tiles near the Bathroom
The respondent resisted these. He said the applicant did not possess them beforehand. It appears they are decorative tiles they should remain where they are.
Item X: Large (omitted) Clock
The respondent said he paid for this clock while the parties were in the (omitted). It appears to have been bought as a common purchase. This evidence was given with some measure of conviction and I will therefore order that the respondent retain it.
Item Y: (omitted) Cookie Jar
It is conceded to be the applicant’s.
Item Z: American Mexican Artwork
The respondent said he bought this item in (omitted). He will retain it.
Item A1: Table Wood under Plasma TV and DVD Cabinet Holder Underneath
The respondent conceded that the cabinet holder was the applicant’s but said the table was his. I accept this evidence.
Item B1: Blu Ray Player
The respondent asserted convincingly that that was his. He will keep it.
Item C1
The respondent conceded this belonged to the applicant.
Items D1 and E1
Are conceded to belong to the applicant.
Item F1: All Vases Glass 15
The respondent proposed that since most were bought by him it was equitable that the applicant receive five of them and I agree.
Item G1
Is conceded to be the applicant’s.
Item A2: Washer Front Loader
The respondent asserted that he bought it and it was his. He also said the same as to items B2, C2, D2.
It was the applicant’s case that all of these items belonged to her before the relationship apart from item C2 a butler tray (wood), which she said was a gift. I found the applicant’s evidence about these matters convincing and she will retain them.
Item E2
Is conceded to belong to the applicant.
Item F2: A Steam Iron Unit/Ironing Board
The respondent said he bought it but it seems more probable to me that the applicant would have had an iron before the relationship commenced. She will keep it.
Item F3: Towel Rack and Towels
The respondent conceded some of these were the applicants and he would make them available.
Item G2
Is conceded to be the applicant’s.
Item H2
The applicant said she owned before the relationship started but the respondent said he has owned it since 1977. His evidence was convincing and he will retain it.
Item I2
These chairs are asserted by the respondent to go with the table and exhibit A4 was said to be the receipt. It plainly is not a receipt for eight chairs but only one. In the circumstances the respondent should retain it as it goes with the table.
Item J2: the Mirrors
These are mirrors in the bathrooms. They are on the walls for the bathrooms and will remain there.
Item K2
It is clear from the receipt (exhibit A3) that the applicant was the customer when this item was purchased. She will retain that TV. The 42 inch TV, assuming it is a different one (and I infer is item in paragraph 173), will be retained by the respondent.
Item L2
Will be retained by the applicant. She has the receipt.
Item M2
The respondent concedes that casserole dishes and dinnerware on the shelves is at least in part the applicant’s and she will have those.
Item N2
It is conceded to be the applicant’s as is exhibit O2 and the luggage described under that heading in exhibit A5.
Items K1 and K2
Item K1 was clearly a Christmas present to the applicant and she should retain it.
Although the respondent said that items in K2 were all his I do not agree. They are items of their nature that it was more probable the applicant owned before the relationship commenced.
Item K3
The respondent said he bought this at the (omitted) and I accept that evidence.
Items K4 and K5
These were asserted by him to have been paid for by the respondent. Even if they were, the applicant should have them.
Item K6 and K7
Scarcely surprisingly each of the parties wanted the other to have the small fridge. The respondent has a daughter to feed. He should have the large fridge and the applicant should have the small one.
Christmas stuff in the shed
The applicant should receive her Christmas tree which plainly has some sentimental value to her. The other matters should remain with the respondent.
Two Lounge Chairs
These were apparently purchased by the applicant and she should have them.
The large urn was put in by the respondent and he should retain it.
The two outdoor umbrellas should remain with the respondent.
The barbeque was conceded to be the respondent’s.
The runner in the hall is conceded to be the respondent’s.
The wrought iron bench is conceded to be the applicant’s.
The respondent concedes that all bed covers and the like are the applicant’s. Although the respondent said he paid for the rug I think the applicant should have that.
The black felt bench will remain for the respondent. He paid for it.
The large silver framed necklace picture tribal will be retained by the respondent who bought it.
The applicant’s bedroom sets and side tables are conceded to be hers as is the bedroom bunk beds.
The silver sconce candle holders will be the applicant’s. The sconce in the backyard will be the applicant’s. The two blue couches are conceded to be the respondent’s and I accept that he had those since 1998.
The lawnmower will be the respondent’s. He seems to have more likely use for it.
It is conceded that the white closets, tool chest, big wooden decorate carved wood and standing lamp are the applicant’s together with any linen that she possessed before the relationship started which the respondent will make available.
It is conceded that Wii is the applicant’s. The PlayStation is conceded to be the respondent’s.
The two bar stools are in issue and will remain with the respondent.
The plain iron, the respondent says he doesn’t have one.
The four memory pillows the respondent says he paid for. He will retain them.
The items of the applicant’s clothing and jewellery and the like are conceded to be hers but the respondent says that the desk in the study is his. I will divide those accordingly.
The respondent said that the jewellery and other items were kept in a storage unit and that he gave the key to the police and that the applicant collected them.
For the purposes of clarity I will say that it appears that there are two large TVs and one small TV in the house and the applicant should have one of them as earlier indicated.
Conclusion on Chattels
It will be noted that the findings about the chattels are made in a very summary way. I have given some emphasis to some answers I found given by the respondent which were convincing. To have a Court determine the division of things like cooking utensils is a situation that does no credit to the meanness of spirit of either of the parties and most particularly the respondent who is far better off and far more able to find replacements. I have done the best I can is an entirely summary way to decide the matter. In a number of these items there is in fact no objective basis on which it could be done. It is almost a matter of random hazard as I would readily concede. If anyone else can suggest a better methodology then they are certainly free to apply it.
Annual Leave and Pay and Lieu of Notice Claims pressed against (company omitted) in the Court’s accrued jurisdiction
During the running of the case, counsel for the applicant sought to agitate the claims for annual leave and payment in lieu of notice to which I have referred in paragraph 41. As earlier indicated counsel for the respondent submitted these claims should be left to the proper authorities.
This aspect of the matter has caused me some difficulty. There is no doubt that the Court has power within its accrued jurisdiction to hear matters that arise out of the single federal controversy (see e.g. Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 121). The exercise of the accrued jurisdiction is discretionary.
The claim for these industrial law benefits is articulated in the applicant’s amended Initiating Application filed on 29 May 2014 at paragraph 12. It seeks that the respondent be directed to sign all documents and all things necessary as the sole director and shareholder of (omitted) to pay the applicant relevantly:
“(a) accrued holiday leave (18 weeks) in a gross amount of $24,923;
(b) One month’s salary paid in lieu of notice in a gross amount of $6,000.”
The affidavit filed in support of that amended application on 27 May 2014 refers to the claims but adds no further detail or explanation as to how the sums asserted in the amended application were derived. They are inconsistent with the figures set out at paragraph 20 of the earlier affidavit.
The respondent did not file any amended Response to the Application nor did he address these claims in any subsequent affidavit.
Thus the evidence as it presently stands is that in paragraph 20 of the applicant’s trial affidavit. That relevantly read:
“I estimate that I am owed about $13,850 in unpaid annual leave by the respondent’s company ….
…
I say the respondent’s company also owes me one month’s salary $4,200 in lieu of notice.”
The respondent’s affidavit sworn 14 April 2014 relevantly responds at paragraph 110:
“I deny paragraph 20 of the Applicant’s Affidavit. The Applicant is not owed any further entitlements from (omitted) Pty Ltd. When commencing her employment, the Applicant requested that I pay her a higher wage so that she could make her own contributions to her own superannuation policy, I agreed to this request.”
The affidavit of course does not say how much higher wage was paid to compensate the applicant in the respect of superannuation. It could be the amount required by the superannuation guarantee legislation or it could be some higher amount.
The claims for annual leave and payment in lieu of notice are not referred to at all in the draft orders annexed to the applicant’s Outline of Case document.
Neither party was cross-examined about the issues of annual leave or payment in lieu of notice at all.
Thus the Court has before it the affidavit evidence I have extracted above together with the matters asserted in paragraph 12 of the applicant’s amended Application set out at paragraph 241 above.
The reality is that the applicant would have been entitled from (omitted) to accrue both annual leave and an entitlement to notice pursuant to the provisions of the Fair Work Act 2009 (“FW Act”).
Section 87 of the FW Act provides that for each year of service with an employer the employee is entitled to four weeks of paid annual leave. Pursuant to s.87(2) entitlement to annual leave accrues progressively during the year of service according to the employee’s ordinary hours of work and accumulates from year to year.
Pursuant to s.117 of the FW Act an employer must provide a sliding scale of notice of termination of employment. The applicant was employed from January 2010 until April 2013 and would thus be entitled pursuant to sub-section 117(3) to three weeks of notice to which a further week would be added by the terms of s.117(3)(b) given that the applicant is over 45 years of age and had completed two years of continuous service with the employer at the end of the day the notice was given.
However, the requirement to give notice is excluded inter alia in circumstances where employment is terminated because of serious misconduct (s.123(1)(b)).
In circumstances where the applicant’s employment was terminated because of an assault on the employer as I find was clearly the case here, the applicant has no entitlement to payment in lieu of notice.
The applicant was employed for three years and three months and would be entitled pursuant to statute to a maximum of 13 weeks annual leave. The claim for 18 weeks as articulated in her amended Application is plainly unsustainable. There is no suggestion there was any term of the contract of employment that gave to the applicant any accrual of annual leave greater than four weeks.
Given the inadequate nature of the materials the parties have seen fit to file in relation to this matter, and given that the dispute between the applicant and the respondent is clearly one single federal dispute arising out of a common substratum of facts it is plainly desirable not to leave this matter to some ancillary litigation, in which the applicant might well face anshun estoppel difficulties in any event, but rather to deal with it now.
I will give the parties an opportunity to file any further materials being work records of the respondent that would show the salary paid to the applicant from time to time and most particularly at the termination of her employment and any annual leave records. It should be noted that these records are required to be kept by law.
Following receipt of those materials, I will cause the company (omitted) to pay the applicant whatever annual leave she did not take.
In order to avoid in advance an argument that I fear might otherwise erupt, I would make it clear that despite the fact that the applicant worked part time and from home for a period of her employment I have not been told that her salary was ever reduced. She is entitled pursuant to the terms of the FW Act to be paid her annual leave on the basis of her salary at termination.
Conclusion
The result I am providing for is, in my view, just and equitable. I have made but little mention of the $10,000 paid to the applicant by the respondent upon her departure from his home (which he says and I accept was paid to persuade her to move). She also received of course the $13,500 but this was a payment to which she was entitled given that it represented the remains of her dental negligence claim funds.
I should repeat that I have endeavoured to balance the various competing considerations raised by this extraordinary case. It is only by a narrow margin that I have been persuaded to grant the applicant any spousal maintenance at all. While her personal circumstances at the moment are certainly extremely dire and precarious, most particularly in relation to her mental health and interrelated finances, the fact is that her overall contribution to the assets of this relationship was very small.
I have formulated final orders but in view of the general kerfuffle about chattels I will publish these as draft orders and give the parties an opportunity to consider them and hear further submissions.
I certify that the preceding two hundred and sixty-two (262) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.
Associate:
Date: 11 September 2014
2
4