Dobson & Singleton
[2022] FedCFamC2F 499
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dobson & Singleton [2022] FedCFamC2F 499
File number(s): ADC 5862 of 2020 Judgment of: JUDGE DICKSON Date of judgment: 22 April 2022 Catchwords: FAMILY LAW – Property – final hearing – long de facto relationship – issue as to who should retain the former matrimonial home – issue of add backs of applicant’s redundancy and superannuation withdrawal – whether an amount owing to the applicant’s father should be treated as a loan or a contribution by the applicant – former matrimonial home and mortgage are already in the applicant’s sole name - applicant proposes to utilise funds from his father to pay the respondent an inflated settlement sum should he retain the former matrimonial home – where the respondent has not established that she can retain the former matrimonial home and take over the mortgage – where the monies from the applicant’s redundancy and superannuation withdrawal should be added back to the pool – where monies from applicant’s father are to be treated as a contribution and not a loan – where applicant receives a 5% adjustment for contributions – where applicant proposes to pay the respondent a settlement sum in excess of what the Court would have ordered in order to retain the property - just and equitable for the applicant to retain the former matrimonial home and pay the respondent a settlement sum as he proposes – where such an outcome equates to a 51.5/49.5% split in the respondent’s favour – equalisation of superannuation – just and equitable Legislation: Family Law Act 1975 (Cth) Pt VIIIAB, ss 90SF, 90SM Cases cited: Biltoft & Biltoft [1995] FamCA 45, (1995) FLC 92-614, 19 Fam LR 39
Jabour & Jabour [2019] FamCAFC 78, (2019) FLC 93-898, (2019) 59 Fam LR 475
NHC & RCH (2004) FLC 93-204
Ogilvie & Adams [1981] VR 1041
Stanford & Stanford (2012) 247 CLR 108
Trevi & Trevi (2018) FLC 93-858
Williams & Williams [2007] FamCA 313
Division: Division 2 Family Law Number of paragraphs: 247 Date of last submission/s: 2 March 2022 Date of hearing: 1-2 March 2022 Place: Adelaide Counsel for the Applicant: Ms Lewis Solicitor for the Applicant: Scales & Partners Counsel for the Respondent: Mr Anderson Solicitor for the Respondent: Nicole Kelly Legal ORDERS
ADC 5862 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DOBSON
Applicant
AND: MS SINGLETON
Respondent
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
22 APRIL 2022
THE COURT ORDERS THAT:
1.The applicant do pay to the respondent the sum of FOUR HUNDRED AND FIFTY THOUSAND DOLLARS AND ZERO CENTS ($450,000.00) within sixty (60) days of the date of these orders (‘the settlement date’).
2.Contemporaneously with the payment of $450,000.00 referred to in paragraph 1 herein the respondent shall do all such things at her sole expense to withdraw the Caveat lodged by her over the property situate at B Street, Town C (‘the said B Street, Town C property’).
3.The respondent do vacate the said B Street, Town C property no later than 48 hours prior to the settlement date.
4.The applicant do retain the items set out in Schedule A attached herewith.
5.The respondent do retain the items set out in Schedule B attached herewith.
6.Contemporaneously upon vacating the said B Street, Town C property, the respondent do remove all items set out in Schedule B, together with her personal effects and other items.
7.The applicant do thereafter retain as his sole property:
(a)The said B Street, Town C property;
(b)The property at D Street, Suburb E;
(c)The items in Schedule A;
(d)Personal saving and investments;
(e)All other items of furniture and personal effects in the applicant’s name or possession.
(f)Superannuation entitlements subject to paragraph 9 herein.
8.The respondent do retain thereafter as her sole property:
(a)The said settlement sum referred to in paragraph 1 herein.
(b)All items in Schedule B attached contemporaneously herewith.
(c)All other items of furniture or personal effects in the respondent’s name or possession.
(d)Personal savings and investments.
(e)Superannuation entitlements subject to paragraph 9 herein.
9.The Court allocate, pursuant to section 90XT(4) of the Family Law Act 1975 (Cth) a base amount of SIXTY THREE THOUSAND NINE HUNDRED AND THIRTY SIX DOLLARS AND ZERO CENTS ($63,936.00) to the respondent out of the applicant’s interest in the Super Fund F, member number …87.
10.In relation to the applicant’s interest in the superannuation fund and pursuant to section 90XT(1) of the Family Law Act 1975 (Cth), whenever a splitable payment becomes payable in respect of the applicant’s interest in the superannuation fund the respondent shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using a base amount as at the operative date of $63,936.00 and that there be a corresponding reduction in the entitlement of the person to whom the splitable payment would have been made but for this order.
11.Having been afforded procedural fairness in relation to the making of this order, orders 9-12 bind the trustee of the superannuation fund.
12.The operative time for orders 9 and 10 is 4 business days after the date of service of a certified copy of the sealed orders on the trustee of the superannuation fund.
13.The applicant do indemnify the respondent and keep her indemnified in relation to any outstanding liability to Mr G.
14.Hereinafter the applicant do pay and discharge all of his personal debts and liabilities incurred in his sole name including any credit cards, personal loans or tax liabilities to the complete exoneration of the respondent who shall have no liability with respect thereto and the applicant indemnify the respondent against all claims, expenses, losses and demands incurred by him as a result of the applicant’s refusal, failure or neglect so to pay.
15.Hereinafter the respondent do pay and discharge all of her personal debts and liabilities incurred in her sole name to the complete exoneration of the respondent who shall have no liability with respect thereto and the applicant indemnify the applicant against all claims, expenses, losses and demands incurred by her as a result of the respondent’s refusal, failure or neglect so to pay.
16.All extant applications do stand dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Dobson & Singleton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DICKSON:
INTRODUCTION
These proceedings concern competing applications for property settlement.
The Trial came before the Court on 1 March 2022 and with final submissions being made on 2 March 2022.
RELATIONSHIP BACKGROUND
The applicant de facto husband (‘the applicant’) was born in 1972. The applicant is 49 years of age and is currently in receipt of Workcover payments. He describes his current occupation as “unemployed”.[1]
[1] See applicant’s Financial Statement filed 19 January 2022 at [3].
The respondent de facto wife (‘the respondent’) was born in 1968 and is now 53 years of age. The respondent describes her current occupation as “unemployed (Centrelink-Jobseeker)”.[2] Notwithstanding the descriptor as “unemployed” the respondent has worked up to 24 hours per week as a hospitality worker at a business known as “Employer H” for the past 5 months.
[2] See respondent’s Financial Statement filed 15 February 2022 at [3].
The applicant contends that the parties met in 1990 but did not commence cohabitation until 1997. The respondent contends that that parties commenced cohabitation in 1991 before separating temporarily in early 1993 and reconciling in 1993.
The applicant contends that the parties formally commenced cohabitation in 1997 when they commenced living at a property at Suburb J. Hence, there is a factual dispute between the parties as to the commencement date of cohabitation, being 1997 as contended by the applicant and 1991 as contended by the respondent.
The parties’ child Mr K (‘Mr K’) was born in 1993 and is now 28 years of age. Mr K is financially independent.
There is no dispute that the parties separated for the final time on 11 October 2019 when the applicant vacated the parties’ home at B Street, Town C and moved into accommodation owned by his father at Town L. Since separation, the respondent has continued to reside in the B Street, Town C property. The applicant has paid most outgoings for the B Street, Town C property since that time.
HISTORY OF PROCEEDINGS
The proceedings commenced by way of Initiating Application filed by the applicant on 8 December 2020. The applicant simply sought orders that there be a division of the parties’ net non-superannuation pool and the parties’ respective superannuation interests on a “60%/40%” adjustment in favour of the applicant.
By way of Response filed on 19 March 2021, the respondent sought that the parties’ net non-superannuation assets be divided as to sixty per centum (60%) to the respondent and forty per centum (40%) to the applicant and that the parties’ superannuation entitlements be equalised.
At this early juncture of the proceedings, neither party had sought with any particularity any order confirming that either of them wished to retain the property at B Street, Town C.
On 1 March 2021, the parties were ordered to attend a Conciliation Conference with a Registrar of the Court on 18 May 2021.
On 14 September 2021, the Court noted that the matter had not settled at a Conciliation Conference and the parties competing applications were adjourned for mention before the Court on 22 September 2021.
On 22 September 2021, the Court set down the parties competing applications for final orders for Trial and made Trial directions.
On 7 December 2021, the applicant filed an Application in a Proceeding seeking orders for further and better disclosure from the respondent. In addition, the applicant sought an order that pending finalisation of the property proceedings, the respondent pay the sum of $452.12 per week by way of contribution towards the outgoings for the property at B Street, Town C. This application was listed for consideration on 21 December 2021.
By way of a Response to Application in a Proceeding filed on 17 December 2021, the respondent sought orders for specific disclosure, sole use and occupation of the said B Street, Town C property and a continuation of the arrangement whereby the applicant paid all financial outgoings for the said B Street, Town C property pending Trial.
On 21 December 2021, the parties entered into consent orders to provide for specific disclosure to be provided by the applicant and the respondent and all interim applications were otherwise dismissed. Leave was granted to reinstate certain aspects of the parties’ interim applications in the event that the Trial listed for 1 March 2022 did not proceed.
DOCUMENTS RELIED UPON AT TRIAL
The applicant relied upon the following documents:
(1)Amended Initiating Application filed 19 January 2022;
(2)Updated Financial Statement filed 19 January 2022;
(3)Trial Affidavit filed 19 January 2022;
(4)Trial Affidavit of Mr G filed 18 January 2022;
(5)Affidavit of Mr M filed 25 February 2022; and
(6)An Outline of Case Document.
In addition, the applicant gave brief updating evidence in chief.
The respondent relied upon the following documents:
(1)Amended Response to Initiating Application filed 15 February 2022;
(2)Amended Financial Statement filed 15 February 2022;
(3)Trial Affidavit filed 15 February 2022; and
(4)An Outline of Case Document.
The respondent also gave updating evidence in chief.
ORDERS SOUGHT
The applicant seeks the following final orders:
1.1The applicant pay to the respondent the sum of $450,000 within 60 days of the date of the orders (the settlement date).
1.2Simultaneously with the payment of $450,000 the respondent will withdraw the Caveat lodged by her on the land at B Street, Town C (“the B Street, Town C property).
1.3The respondent vacate the B Street, Town C property on or before the settlement date.
1.4On or before 7 days prior to the settlement date the applicant attend and inspect the premises at the B Street, Town C property and the items to be retained by him.
1.5The applicant retain the items set out in Schedule A.
1.6The respondent retain the items set out in Schedule B.
1.7Upon vacating the B Street, Town C property, the respondent remove all the items in Schedule B and her personal effects and other items.
1.8That the applicant retain thereafter:
1.8.1The B Street, Town C property;
1.8.2The property at D Street, Suburb E;
1.8.3The items in Schedule A;
1.8.4All other items of furniture or personal effects in the applicant’s name or possession;
1.8.5The applicant’s bank accounts;
1.8.6The applicant’s superannuation.
1.9The respondent retain thereafter:
1.9.1The items in Schedule B;
1.9.2All other items of furniture or personal effects in the respondent’s name or possession;
1.9.3The respondent’s bank accounts;
1.9.4The respondent’s superannuation.
1.10An order be made that a sum be split from the applicant’s superannuation to the respondent’s superannuation to equalise their respective superannuation.
1.11The applicant take over and pay:
1.11.1The mortgages registered against the B Street, Town C property;
1.11.2The loan due to the applicant’s parents;
1.11.3The applicant’s credit card;
1.11.4The applicant’s personal loan
and the applicant indemnify the respondent in relation to these liabilities.
The respondent seeks the following orders:
1.That the applicant do all such acts and things and sign all such documents as may be required to transfer to the respondent the property situated at B Street, Town C (‘the property”) and thereafter ownership of the same at law and in equity shall vest in the respondent free from further claim by the applicant.
2.That contemporaneously with the transfer of the property in paragraph 1 aforesaid the respondent shall secure the applicant’s unconditional release and discharge from all liability to or with respect to the ANZ Loan Account Number ending …67 and the ANZ Loan Account Number ending …83 and a discharge of registered mortgage number …12 at her cost and assume liability for and indemnify the applicant in respect of that loan.
3.That pending the transfer of the property:
3.1 The respondent will have the sole right to use and occupy the property to the exclusion of the applicant;
3.2 The respondent will be responsible for the day-to-day maintenance and care of the property;
3.3 The respondent will be responsible for and shall cause to be repaired at her own expense, any damage to the property caused by her or persons attending at or occupying the property with her knowledge, consent or invitation;
3.4 The respondent will be solely liable for and indemnify the applicant against the following outgoings in and about the property:
3.4.1Instalments and money due under the mortgage;
3.4.2Rates and water;
3.4.3Any land tax assessed;
3.4.4The cost of all reasonably necessary repairs and maintenance to the structures and or buildings located on the property;
3.4.5The premiums for the continuation of current insurance policies on the house and contents located on the property;
3.4.6Utility expenses including but not limited to gas, electricity and telephone useage.
4.That there be an equalisation of the parties superannuation entitlements whereby, pursuant to Section 90XT(4) of the Family Law Act 1975 (Cth), a base amount of SIXTY THREE THOUSAND NINE HUNDRED AND TWENTY DOLLARS ($63,920.00) to the respondent out of the applicant’s interest in the Super Fund F Superannuation trust, member number …43.
5.That henceforth the real property and all personalty in the possession of the applicant including but not limited to the property situated at D Street, Suburb E, his savings, superannuation entitlements and any furniture and effects in the possession of the applicant shall vest absolutely in the applicant free of all further claim or demand or right or entitlement of the respondent.
6.That henceforth the real property and all personalty in the possession of the respondent including but not limited to her savings, superannuation entitlements and any furniture and effects in the possession of the respondent shall vest absolutely in the respondent free of all further claim or demand or right or entitlement of the applicant.
7.That hereinafter the applicant shall pay and discharge all of his personal debts and liabilities incurred in his sole name to the complete exoneration of the respondent who shall have no liability with respect thereto and the applicant does hereby indemnify the respondent against all claims, expenses, losses or demands incurred by him as a result of the applicant’s refusal, failure or neglect so to pay.
8.That hereinafter the respondent shall pay and discharge all of her personal debts and liabilities incurred in her sole name to the complete exoneration of the applicant who shall have no liability with respect thereto and the respondent does hereby indemnify the applicant against all claims, expenses, losses or demands incurred by her as a result of the respondent’s refusal, failure or neglect so to pay.
ASSETS AND LIABILITIES AVAILABLE FOR DISTRIBUTION AT TRIAL
The parties’ respective positions with respect to the assets and liabilities available for distribution at Trial are as set out in an agreed Schedule of Assets and Liabilities (Exhibit A1):
Assets
Husband’s Value
Wife’s Value
B Street, Town C
875,000
875,000
D Street, Suburb E
440,000
440,000
Personal Effects (App)
11,215
11,215
Motor Vehicle (App)
74,300
74,300
Personal Effects (Resp)
6,870
6,870
Motor Vehicle (Resp)
43,087
43,087
Bank Accounts (App)
Nominal
Nominal
Bank Accounts (Resp)
20,000
20,000
Sub-Total
1,470,472
1,470,472
Less Home Loan (App)
-446,772
-446,772
Less Credit Card (App)
-4,577
-4,577
Less Personal Loan (App)
-16,902
-16,902
Less Tax Debt (App)
-3,736
-3,736
Less Father’s loan (App)
-113,240
Sub-Total:-
885,245
998,485
Plus Addback of $10,000 relating to redundancy (App)
Nil
10,000
Total:
885,245
1,008,485
Superannuation assets available for distribution
Superannuation (App)
134,519
Superannuation (Resp)
26,647
Sub-Total:-
161,166
Plus sum of $20,000 withdrawn by the Applicant but disputed as an “add back”
20,000
Total:
181,166
ISSUES TO BE DETERMINED AT TRIAL
The issues to be determined at Trial are as follows:
(1)Which party should retain the former matrimonial home at B Street, Town C? At Trial, each of the parties sought to retain the B Street, Town C property by way of final order;
(2)What percentage should be applied to the division of the parties’ net non-superannuation assets?;
(3)Whether or not $10,000.00 from the applicant’s redundancy should be added back to the pool;
(4)Whether or not $20,000.00 withdrawn from the applicant’s superannuation should be added back to the superannuation balance; and
(5)Whether or not the amount owing to the applicant’s father in the sum of $113,240.00 should be treated as a loan owing by the parties or the applicant alone, or whether such sum was a gift and should be assessed as a contribution.
The applicant proposed that if he retained the B Street, Town C property, then he would pay the respondent the sum of $450,000.00 and maintain the existing liabilities. The applicant submitted this would equate to a 52% adjustment in favour of the respondent bringing to account the debt said to be owing to the applicant’s father in the sum of $113,240.00. In the alternative and if the Court found against the applicant in relation to the alleged debt owing to his father, then the applicant submitted that the calculation would equate to 58.24% of the net non-superannuation pool in favour of the respondent. In the alternative and in the event that the Court did not make an order which would have the applicant retaining the said B Street, Town C property, then the applicant sought a settlement sum be paid to him, such sum representing 58.73% of the net non-superannuation pool.
The respondent sought an order that in the event that she was able to retain the B Street, Town C property then she would discharge the existing liabilities registered over the said B Street, Town C property and that no settlement sum was then payable to the applicant. The respondent submitted that her proposal represented an equalisation of the parties’ net non-superannuation assets.
The parties are in agreement as to the personal assets that each of them will otherwise retain.
The parties are in agreement in relation to an equalisation of their respective superannuation entitlements. The respondent however seeks to “add back” to the superannuation balance an amount of $20,000.00 withdrawn by the applicant post separation.
OVERVIEW
The parties met in or about 1990/1991. The respondent was living in a rental home at Suburb N with her child Ms O, who was then aged about 4 years old.
In 1992, the applicant completed his apprenticeship as a tradesman.
In 1992, the applicant purchased a property at D Street, Suburb E in the state of South Australia (‘the D Street, Suburb E property’) for the sum of approximately $60,000.00. The D Street, Suburb E property was purchased in the name of the applicant’s father Mr G (‘Mr G Senior’). The applicant’s evidence and that of Mr G, which I accept, is that the property was put into the name of Mr G as the applicant would not have been successful in securing finance at that time.
Following the purchase of the D Street, Suburb E property, the applicant met repayments for the mortgage secured over the said property via payments to his father and also undertook renovations including building a toilet and bathroom and constructing fences around the property. Over time, the applicant set up a small business on the Suburb E block.
Between 1992 and 1994, the applicant worked as a tradesman at various businesses.
In 1993, the parties’ son Mr K was born. The applicant conceded under cross examination that following Mr K’s birth, the respondent had been the primary caregiver to Mr K.
In 1997, the parties moved into a rental property at Suburb J together. This is the date upon which the applicant says the parties commenced formal cohabitation. Upon cohabitation, the respondent ceased receiving a sole parent pension.
In 1998, the applicant purchased a truck and secured a contract as a transport worker.
In 1998, the respondent commenced employment at a business where she was employed as a retail assistant for the next 10 years or so.
In 2001, the respondent’s daughter Ms O moved to Melbourne to reside with her father. Ms O continued to spend time with the parties during school holidays.
In 2001, the applicant received an inheritance from his grandmother in the sum of $50,000.00. This sum was not used to repay the debt to the applicant’s father owing for the purchase of the D Street, Suburb E property.
In 2001, the D Street, Suburb E property was transferred into the name of the applicant from the name of Mr G for the sum of $140,000.00, plus expenses. At the time of transfer, the applicant contends that the sum of $95,500.00 was remaining on the loan owing to Mr G for the original purchase price for the said property. The applicant then rented out the D Street, Suburb E property.
In 2001, the applicant purchased a property at P Street, Suburb Q (‘the P Street, Suburb Q property’) for the sum of $160,000.00. The applicant applied some of the monies received from his inheritance from his grandmother as a deposit and borrowed a further sum of $6,512.00 from Mr G for sale costs. A mortgage in the sum of approximately $140,000.00 was obtained in order to complete the purchase. The parties and Mr K made the P Street, Suburb Q property their home.
In 2004, the respondent’s nieces R and S moved in with the parties. It was an agreed position at Trial that the children both had significant behavioural difficulties and special needs which required constant management.
In 2005, the applicant commenced working as a ‘fly in fly out’ (‘FIFO’) worker for Employer T at Town U. The applicant worked 2 weeks on and 2 weeks off. The bulk of the care for the children fell to the respondent.
In 2007, the applicant received a second inheritance in the sum of $140,000.00 from the applicant’s grandfather. This sum was not used to repay the debts to Mr G.
In 2008, the applicant purchased a property at V Street, Suburb Q (‘the V Street, Suburb Q property’) for the sum of $375,000.00. A mortgage in the sum of $395,000.00 was obtained and both the P Street, Suburb Q property and the V Street, Suburb Q properties were used as cross security for the debt.
In 2010, the respondent’s niece R moved out of the family home and was placed into care with the Department of Child Protection.
In 2011, the parties assisted their son Mr K to purchase a property in his own right at W Street, Suburb Q. The parties drew down on a mortgage in the sum of $100,000.00 which was provided to Mr K to enable him to complete the purchase.
At the date of Trial, it was an agreed position that Mr K had repaid $60,000 of the original advanced sum. It was the applicant’s evidence that he had forgiven his remaining half share of the balance in the sum of $20,000.00 and did not expect repayment. The respondent’s evidence was that she continued to seek the sum of $20,000.00 be repaid to her by Mr K.
In 2014/15, the applicant’s FIFO shifts altered to 3 week on and 3 weeks off.
In 2015, the applicant was made redundant by his employer. The applicant received a redundancy. The redundancy was expended to meet household expenses and utilities. The redundancy was not used to repay debts owing to Mr G.
In 2015, the applicant commenced employment with Employer X on a much lower salary than that previously earnt as a FIFO worker.
In 2017, the two Suburb Q properties were sold to purchase the property at B Street, Town C (‘the B Street, Town C property’) for the sum of $705,000, plus expenses. The purchase was secured by way of two mortgages registered with the ANZ Bank in the applicant’s sole name totalling $470,000.00. The B Street, Town C property became the parties’ final home which they shared together prior to separation. The property is situated in a rural location. It is registered in the sole name of the applicant.
In 2017, the applicant re-commenced work as a FIFO worker with Employer T working either two or three weeks away at a time.
In or about 2018, the respondent purchased a motor home in the sum of $35,000.00 using her personal savings.
On 11 October 2019, the applicant vacated the B Street, Town C property for the final time. As referred to herein, the applicant then moved into a property owned by his father at Town L. The applicant has been living in Town L “rent free” whilst meeting outgoings for the B Street, Town C property occupied by the respondent.
In December 2019, the applicant was made redundant from his work as a FIFO employee.
In 2020, the wife’s niece S was placed into care with the assistance of the Department of Child Protection before returning to reside with the respondent at the B Street, Town C property in October 2020.
In May 2020, the applicant applied for and commenced receiving Workcover payments.
On 25 May 2020, the applicant withdrew the sum of $10,000.00 from his superannuation fund and retained the sum.
On 29 July 2020, the applicant withdrew the sum of $10,000.00 from his superannuation fund and retained the sum.
On 25 May 2020, the respondent received a redundancy in the sum of approximately $23,547.26[3] and retained the said sum.
[3] See respondent’s Trial affidavit filed 15 February 2022 at [80].
The applicant did not apply any money received from his superannuation withdrawals or his redundancy to the debts owing to his father.
THE EVIDENCE
The applicant
The applicant adopted the terms of his Trial affidavit and Financial Statement and gave brief updating evidence in chief.
In his evidence in chief, the applicant confirmed that when he was made redundant from his employer Employer T in 2019 he had received the sum of approximately $24,000.00 by way of a redundancy. It was his evidence that these funds had been utilised for the payment of living costs and maintaining expenses associated with various real properties, including the B Street, Town C property.
Furthermore, the applicant confirmed during his evidence in chief that the funds to pay out the respondent if he was successful in retaining the B Street, Town C property would be secured by way of an advance of monies from his father in the sum of $450,000.00. It was the applicant’s evidence that having recently sold a property at D Street, Suburb E, that his father was, to put it in the colloquial, “cashed up” and in a position to advance the funds to him.
Under cross examination, the applicant conceded that his time with Mr K from the date of his birth until 1997 was “limited”.
The applicant conceded that during the relationship the respondent had undertaken various forms of employment including as a transport worker, cleaner and retail assistant.
The applicant conceded that at the time the D Street, Suburb E property was purchased, he had informed the respondent that the property had been purchased by him and did not reveal that it was in the name of his father.
In 2001, the applicant contended that the property had been transferred into his name after he received an inheritance in the sum of $50,000.00. The applicant agreed that none of the monies received by way of inheritance were paid to his father, but rather were used for the renovation of the D Street, Suburb E property. In addition, the applicant had utilised those funds to pay for Stamp Duty, bank fees and improvements to the D Street, Suburb E property. The applicant conceded that at the time the D Street, Suburb E property was transferred into his sole name there was no written document confirming this arrangement. The applicant described it as a “family agreement”. The applicant’s evidence was that he would repay the monies to his father when he was “financial”.
The applicant conceded when it was put to him by the respondent’s counsel that they have both been “super mum” and “super dad” during the relationship. The applicant conceded that each of them had worked very hard both financially and non-financially in their various forms of employment and in caring for the children who lived in their household.
The applicant gave evidence that if he was successful in retaining the B Street, Town C property, then he wished to set up his own business. The applicant had also considered establishing “farm stays” where persons could stay at the property and enjoy the country lifestyle. The applicant’s intention would be to build “little cottages by the river” although he conceded that he had not made any enquiry with the local council as to whether or not such an enterprise would be permissible.
In relation to the redundancy received by the applicant post separation, he agreed when it was put to him by the respondent’s counsel that he offered to pay the money to his father to reduce the debt owing. The evidence was that Mr G had declined to receive the funds which had then “gone to lawyer’s costs”.
The applicant conceded that his current income comprised of rent received from the Suburb E business and monies paid from Workcover. After payment of tax the applicant receives $1,075.00 per week. From this sum, the applicant is required to meet a number of expenses totalling $1,700.00 per week, including the outstanding loans to the ANZ Bank, levies, a personal loan and day to day living expenses. The applicant conceded that he was “just getting by” and that he “would not be able to refinance currently into his sole name”. The applicant conceded that he was “wholly reliant on his father” to retain the B Street, Town C property.
The applicant conceded that if his Workcover repayments were reduced to $483.00 per week and after payment of tax, his weekly income would then be in the vicinity of approximately $850.00 net per week.
In the face of a pending application to Workcover challenging the assessment of a 15% impairment, the applicant made appropriate concessions when under cross examination that his current physical disabilities would make driving the machinery needed to maintain the B Street, Town C property difficult. However, the applicant’s evidence is that he would not work full time and that he “aimed to work within my limits”. The applicant conceded when it was put to him that “at best” he could undertake a “little bit of trade work” but went on to inform the Court that there were other options available to him other than working in the business. The applicant’s evidence is that there are “people” he can approach to assist him in maintaining the B Street, Town C property.
The applicant conceded that regardless of who was successful in retaining the B Street, Town C property, maintaining the property’s immediate surrounds would be within each of the parties’ respective capabilities.
When challenged as to why Mr M was called to give evidence, the applicant contended that it was as a consequence of concern about fire risk as there had been minimal slashing undertaken on the property. The applicant conceded that he had not approached the respondent to raise his concerns about the fire risk and had not forwarded any correspondence via the parties’ respective solicitors.
The applicant conceded that as at the date of Trial he would not be able to personally operate a tractor or a ride on lawn mower needed to maintain the paddocks given his physical restraints. The applicant proposed that this work would be undertaken either by Mr M or the applicant would arrange for livestock to be agisted to keep the length of grasses down.
The applicant was pressed by the respondent’s counsel as to whether or not he accepted that it would be difficult for the respondent if she was required to leave the B Street, Town C property given the proximity of S’s caregivers to the home. The applicant did not concede this and indicated that previously S had experienced different carers during the relationship.
The respondent’s counsel challenged the applicant as to whether or not he had considered setting up a workshop and being funded by his father at some other location other than the B Street, Town C property. The applicant denied turning his mind to this. He was honest in telling the Court that he wished to establish the business at the B Street, Town C property and believed that he would be able to manage a workshop within his own capabilities given that he could rest inside the home as required.
The applicant denied that he could ask the tenant living at the Suburb E property to vacate and then he could set up a business at that location as he required the rent from that property to supplement his weekly income.
In relation to his withdrawals from his superannuation entitlements in 2020, the applicant conceded that he had withdrawn the total sum of $20,000.00 in two separate $10,000.00 tranches. The applicant conceded that the funds had been offered to his father for repayment of the outstanding loan, but had been declined by him. The applicant’s evidence is that the $20,000.00 was then used to “pay lawyers”. The applicant could not remember how much of his redundancy had been paid towards his legal expenses.
The applicant conceded that he was “just travelling week to week at the moment” and had no accumulated personal savings. If Queensland Workcover determined that his impairment was less than 15%, the applicant conceded that he would need to return to employment. The applicant has considered working as a “tradesman” or working as a “hot shot” in the transport industry.
I find that the applicant gave his evidence in a balanced and honest way. He made appropriate concessions, often against his own interests.
Mr G
Mr G is the father of the applicant and is a retired finance professional.
Mr G conceded in his evidence that the monies advanced to his son in 1992 to purchase the D Street, Suburb E property was to assist him to “get a foot hold in the property market”.
Mr G confirmed that at the time the D Street, Suburb E property was transferred into the name of the applicant in 2001, the sum of $95,508.00 was owing on the funds previously advanced by Mr G. At the time of transfer, the property had an agreed value of $140,000.00.
Mr G described the outstanding liability arising from the 2001 transfer as an “at call loan”. Mr G gave evidence that the funds would be repaid by the applicant when he was “financially well enough to do so”. It was conceded that he had never called in the loan and had never demanded a repayment. It was conceded that there was no written agreement in relation to the loan of $95,000.00 because “at its heart it is based on love and affection”. This was a turn of phrase used by the witness several times during his evidence.
When the applicant received his $50,000.00 inheritance in 2001, Mr G confirmed that he did not make an enquiry as to how those funds were expended and described having “no idea” how his son had spent the inheritance monies. Mr G had described his son refinancing in order to pay $100,000.00 to the parties’ son Mr K to purchase his own property as being “like father, like son” and that it was “like repeating history”. Mr G rejected any suggestion by the respondent’s counsel that this had been his opportunity to “grab a quid”.
At the time that the applicant had received the sum of $140,000.00 by way of inheritance in 2007, Mr G gave evidence that the receipt of those funds “peaked my interest” in that the applicant was now in a “wealth creation stage” and that he was “right behind” his son building assets for future wealth. Mr G confirmed that whilst his son had offered to make repayments towards the outstanding liability he had “declined”. Mr G would not be drawn into any criticism of his son purchasing motor cycles rather than repaying the debt to him. Mr G stated that his son “knows my view about buying depreciating assets”.
In relation to the monies to be advanced to pay out the respondent for the applicant to retain the B Street, Town C property, Mr G gave evidence that he had “a very extensive line of credit” to provide the money. Mr G looked forward to being able to do this as it would be an opportunity to “clear this situation” and allow the applicant to “move on”. The sum of $450,000.00 to pay out the respondent would also be provided to the applicant due to “love and affection”.
Finally, Mr G conceded that whilst notionally the applicant paid him the sum of $250.00 per week for occupation of the Town L property, this was pursuant to an “oral agreement” and whilst a debt was accumulating, no enforcement proceedings would be issued due to “love and affection”.
Mr G was an honest witness. He presented as a caring and supportive parent.
Mr M
The affidavit of Mr M filed on 25 February 2022 was admitted into evidence without Mr M being called for cross examination.
His affidavit is directed to a discreet issue, namely the question of whether or not one or two of the paddocks situate at the B Street, Town C property required mowing. Mr M described that one of the large paddocks on the property had not had any “grass control work done” and he described it as a “fire danger”. According to Mr M, the paddock was not complying with council requirements and he therefore “slashed” the entire paddock. This was apparently done at the behest of the applicant on 25 January 2022 and without the respondent’s knowledge or consent.
I do not consider that much turns on the evidence of Mr M.
The respondent
The respondent adopted the terms of her Trial affidavit and Financial Statement and gave brief updating evidence in chief.
During her evidence in chief, the respondent tendered a letter from the Commonwealth Bank dated 21 February 2022 (Exhibit R2) which confirms that the respondent had received conditional pre approval for a loan in the sum of $375,000.00. The total debt owing to the ANZ Bank is $446,772.00. In response to a question put by the applicant’s counsel as to how she intended to discharge the full amount owing on the loan, the respondent’s evidence is that her sister Ms Y would be providing the sum of $60,000.00 which she would contribute towards the discharge of the existing loan to ANZ Bank.
The respondent conceded that her sister Ms Y was not being called to give evidence at Trial. The respondent’s evidence is that the monies owing to her sister would be repaid “when we sell the home”.
In addition to monies being advanced by her sister, the respondent’s evidence is that her neighbour Ms Z (‘Ms Z’) had offered to advance the sum of $30,000.00. These funds were said to be unsecured, but would be recorded in a document to be drawn up by Ms Z’s lawyer. The respondent described repaying the funds borrowed from Ms Z “when I can”.
In relation to her weekly income, the respondent receives the sum of $222.50 per week by way of a Carer’s Pension. Her net weekly income after tax is $561.00 per week. The respondent also receives the sum of $100.00 per week from S who receives the sum of $315.00 per week by way of Disability Support Payment from Centrelink. In addition, the respondent’s sister Ms Y pays the sum of $220.00 per week by way of board for herself and her child.
The respondent conceded that it was not until late 2021 that she considered being in a position to retain the B Street, Town C property although she had always harboured a desire to retain it. The respondent conceded that up until the end of 2021 she had considered that the purchase of the B Street, Town C property was beyond her reach. It was apparently only recently that the respondent “realised” that she could apply for a bank loan. The respondent described being referred to a mortgage broker by S’s support co-ordinator. The respondent conceded that if she did not receive bank finance she would need to move from the B Street, Town C property. The respondent had considered moving to Town AA. The respondent described there being a “housing crisis on the Region BB” with “not much housing being available”. According to the respondent, she would aspire to purchase at least a 3 bedroom property with land as “S needs space”. The respondent gave evidence that she had been looking on “realestate.com” for appropriate properties and considered that nothing to date had been suitable. The respondent had not been to any open inspections however.
The respondent conceded that it was only in the last 7 months prior to the Trial that she had considered remaining in the B Street, Town C property. In addition, it was only since 21 February 2022 that the respondent had confirmed pre approval for finance. The respondent confirmed that the pre-approval letter from the bank was not absolute confirmation of her capacity to secure those funds. The respondent conceded that enquiries would need to be made of her personal circumstances, her income and employment and that she would need to provide further source documents to satisfy the bank’s lending criteria.
The respondent has consulted with a mortgage broker from the Commonwealth Bank by the name of Mr CC. Her neighbour Ms Z had assisted her with the figures. Ms Z lives on a neighbouring property and is also the respondent’s employer at the “Employer H” where she has been working for the past 5 months or so.
The respondent denied that the B Street, Town C property was worth more than $875,000.00 when questioned. She considered that it would sell for higher and referred to an incident in 2021 when the parties had been offered the sum of $750,000.00 for the purchase of the B Street, Town C property which had been rejected. The respondent denied there had been any discussions regarding the sale of the home if she was successful at Trial and that she intended to remain in the property describing it as “our dream home” and a place where “we meant to stay there until we died”.
Considerable cross examination was undertaken in relation to Exhibit A3 being a document entitled “Game Plan dated 14 February 2022” (‘the Game Plan’) which was prepared by the mortgage broker Mr CC. Regrettably, Mr CC was not called by the respondent to give evidence at Trial.
The responded conceded that she had been “very careful” when completing the Game Plan and that she was aware of her income due to having her payslips and also cognisant of her expenditure. Notwithstanding this, the respondent conceded that there were errors in her Financial Statement and Court documents.
The respondent denied intentionally deceiving the Court or the applicant in relation to her sister Ms Y moving into the property. The respondent’s evidence was that regardless of the outcome of the Trial, Ms Y will move with her wherever she goes and would make the sum of “$80,000 available”.
The respondent’s evidence confirmed however that the actual sum to be advanced was $60,000.00 as Ms Y had purchased a caravan in the weeks preceding the Trial. Regrettably, the respondent’s sister Ms Y was not called to give evidence at Trial either.
In relation to the loan of $30,000.00 to be advanced by Ms Z, the respondent’s evidence was that this sum had been discussed “the night before” the respondent had been called to give her evidence, namely mid trial. According to the respondent’s evidence, the parties’ son Mr K had endeavoured to secure a loan to pay to his mother the remaining funds owed in the sum of $20,000.00 but would not be able to do so. Accordingly, Ms Z had offered to pay the funds unsecured.
The respondent denied the assertion that her application to borrow monies to purchase the home was “on a knife edge”.
The respondent was unable to explain how the “Game Plan” document prepared by Mr CC recorded her occupation as “Office Worker” rather than as “hospitality worker” which is the respondent’s current employment. The respondent at the time of Trial worked Tuesday, Wednesday, Thursday and Friday for 8 hours each day.
Significant cross examination was spent drilling down the accuracy of the figures provided by the respondent in her Financial Statement and the form completed by Mr CC entitled “Game Plan” in February 2022. The respondent conceded that she was “not fantastic” with the figures. She denied that she had a “lack of confidence” in relation to her loan application.
The respondent’s evidence was that the $30,000.00 to be advanced by Ms Z would be unsecured, not subject to interest and that she would repay it “when I can”. The respondent described discussions in relation to the repayment of those funds as being in their “infancy”. That is an accurate description given that the funds were only offered by Ms Z in the evening on the first day of Trial.
The respondent conceded that if she was successful in retaining the property then she would no longer have any “cash reserves”. The respondent agreed that her health was impacted by stress and anxiety but considered that she would “manage” any stress or anxiety brought about by having no further funds available to her in reserve. The respondent denied that financial stresses associated with the purchase of the B Street, Town C property would aggravate her medical condition. The respondent denied that Ms Z being her employer and also loaning her unsecured the sum of $30,000.00 could be the source of potential conflict. The respondent denied when it was put to her that Ms Z may call on those funds to be repaid and that the respondent would then would not be in a position to do so. Should this occur, the respondent considered that she would sell her caravan.
Regrettably, Ms Z was not called to give evidence at Trial either.
It was put to the respondent that without the $140,000.00 that the applicant received by way of inheritance, the parties would not have been able to afford the purchase of a subsequent investment property. The respondent was cautious in her answer by responding “I don’t know. If we didn’t have that money we would have done it some other way”.
The respondent denied that the parties had lived week to week during their relationship save and except for the injections of capital received from the applicant via inheritances. It was only after being pressed under cross examination by the applicant’s counsel that the respondent conceded that the parties were unlikely to have been able to purchase the investment property without the inheritances provided by the applicant.
Overall, the respondent impressed as keen to give answers to support the orders sought by her at Trial. The respondent was described by her counsel as a “battler”. I would concur with this description as the respondent presented as extremely fatigued by life events.
ASSET POOL
In relation to the Schedule of Assets and Liabilities above, it is appropriate that several of the line items be the subject of findings by the Court and in light of the parties’ evidence.
Respondent’s Redundancy
I propose to add back the redundancy in the sum of $10,000.00 to the Asset Pool. The applicant conceded that the funds were paid towards legal fees after his father declined to receive them. The Court has long determined that paid legal fees from a source that would otherwise be property of the parties is an appropriate addback.[4]
[4] See NHC & RCH (2004) FLC 93-204; Trevi & Trevi (2018) FLC 93-858.
Superannuation Withdrawals
I am satisfied that it is appropriate to exercise my discretion and include the total of the two withdrawals made by the applicant on 25 May 2020 and 29 July 2020 respectively totalling $20,000.00 back into the superannuation balance. This is a long relationship. The applicant has been in a superior financial position during the relationship and post separation. The applicant’s evidence is that some (if not all) of the funds were applied to legal fees. It is equitable that such an adjustment be made.
Funds Advanced by the Applicant’s Father
The applicant’s father Mr G is a retired finance professional. He gave very specific and detailed evidence about the funds historically advanced to the applicant and the reasons for doing so. I accept for the most part his evidence.
I do not however consider that the funds should be seen in the strict sense as a loan to be brought to account in the Balance Sheet. Whilst Mr G has kept records of monies outlaid and monies then repaid by his son, I am not satisfied in the evidence that these funds will ever need to be repaid or will be called in by Mr G during his lifetime.
At several critical points during the parties’ relationship the applicant received inheritances totalling $190,000.00 and redundancy monies which could have been used to repay Mr G. This did not occur. Indeed the agreed evidence is that the applicant offered money to his father which was declined.
Mr G repeated several times when under cross examination that the funds were provided out of “love and affection” to his son and to assist in “asset wealth creation”.
In light of my findings, I intend to treat this line item as a contribution to the relationship by the applicant and not a joint liability.
REVISED ASSET POOL
Based on the above findings, the revised asset pool is as follows:
Assets
Ownership
Value
B Street, Town C
Applicant
875,000
D Street, Suburb E, Suburb E
Applicant
440,000
Personal Effects
Applicant
11,215
Motor Vehicle
Applicant
74,300
Personal Effects
Respondent
6,870
Motor Vehicle
Respondent
43,087
Bank Accounts
Applicant
Nominal
Bank Accounts
Respondent
20,000
Sub-Total
1,470,472
Less Home Loan
Applicant
-446,772
Less Credit Card
Applicant
-4,577
Less Personal Loan
Applicant
-16,902
Less Tax Debt
Applicant
-3,736
Sub-Total:-
998,485
Plus Addback of $10,000 relating to redundancy
Applicant
10,000
Total:
1,008,485
Superannuation (App)
134,519
Superannuation (Resp)
26,647
Sub-Total:-
161,166
Plus sum of $20,000 withdrawn by the Applicant as an “add back”
20,000
Total:
181,166
SUBMISSIONS
The applicant’s submissions
The applicant submitted that the relationship was a long one and that it was open to the Court to find that the parties’ non-financial and financial contributions were equal.
It was submitted that “but for” the applicant’s inheritance in 2001, the investment property would not have been secured. The applicant’s counsel described the inheritance as a “springboard” to the purchase of the investment property.
In relation to the loan outstanding to the applicant’s father, the applicant’s counsel conceded that Mr G would not demand repayment, but asked the Court to accept that ultimately those funds would be repayable.
The applicant submitted that as a consequence of the financial contributions made by him via the inheritances and his father that there should be a 5% weighting in his favour.
In relation to any future needs adjustment, it was submitted that the parties’ needs were equal and that both parties experienced significant health difficulties.
The applicant opposed adding back $20,000.00 in superannuation, noting that the applicant had taken advantage of COVID-19 policies which enabled people to draw down on their superannuation. If the Court was persuaded to add back those funds on account of the payment of legal fees, then the same should apply for the respondent. It was submitted that those funds were as follows:
(1)$11,000.00 paid by the respondent; and
(2)$27,000.00 paid by the applicant.
There was no cross examination of the respondent as to the source of monies identified in Exhibit R1, being costs and disbursements paid to the respondent’s solicitors. I therefore decline to include it.
In relation to the retention of the B Street, Town C property, it was submitted that the applicant had been ejected from the property, but notwithstanding this had met all expenses post separation. It was submitted that the applicant would not need to re-finance because he had been meeting repayments since separation and that he would simply “move back in”.
The applicant’s counsel submitted that the applicant had the benefit of “a wealthy benefactor”, namely his father, and that his evidence was persuasive in being able to reassure the Court that the relevant finances would be provided. The applicant’s counsel rejected the assertion that the applicant had not undertaken serious research into further uses for the B Street, Town C property and in any event, the same criticism was said to be levelled against the respondent.
The applicant’s counsel submitted that the respondent had been “evasive” and that she had only answered questions considered important to her case. It was submitted that the respondent was incapable of explaining how the issue of documents filed by her in the Court were incorrectly prepared. It was submitted that “nothing” in her documents were accurate in terms of her financial situation and that extensive cross examination was needed to “get a handle on her circumstances”. It was submitted that Exhibit A5 is an accurate reflection of her true income and expenses, which demonstrated that the respondent simply did not have sufficient weekly income to meet her weekly expenses even without a mortgage debt.
The Court was invited to find that the respondent has “no handle on her income, expenses and at best requires her neighbour Ms Z to assist her”. It was submitted that it was not hard to foresee a situation where the wife would be “embarrassed” by not being able to meet her financial commitments given her relationship with Ms Z, her medical condition and the monies to be advanced by her family members.
The applicant’s counsel submitted that the respondent was $71,772.00 short on discharging the existing mortgage. Strong submissions were made to reject the evidence of monies being advanced to the respondent in circumstances where she had not called her sister Ms Y, Ms Z or Mr CC, the mortgage broker. It was submitted that there was nothing to reassure the Court that those funds exist. The respondent was described as being “not a woman who is sophisticated in these matters”. It was submitted that the applicant has “the runs on the board” and that he could pay the inflated amount of $450,000.00 to retain the property.
The applicant’s counsel submitted that if allowed to purchase the property, the respondent would have “no buffer” in terms of personal savings and that she would be “pouring every cent into the property” and still come up short. This situation would be exacerbated if there was a rise in interest rates.
The applicant submitted that the respondent’s proposal at Trial had been “cobbled together at the last minute”.
The applicant opposed the B Street, Town C property being sold with each party being able to bid at an auction.
Finally, it was submitted that the orders promoted by the applicant afforded justice and equity to each of the parties and should be adopted by the Court at Trial.
The respondent’s submissions
In his submissions, counsel for the respondent submitted that the respondent conceded that the applicant had purchased the D Street, Suburb E property and that he had occupied this property until such time as the parties had commenced formal cohabitation in 1997. The Court was urged to bring into account the fact that in this period the respondent was the primary carer for Mr K for a period of 4 years.
In short, the respondent submitted that the applicant’s initial contribution by way of any equity in the D Street, Suburb E property was outweighed by the wife’s sole care of Mr K pending formal cohabitation occurring in 1997.
It was submitted that during the relationship, the respondent had paid for household expenses whilst the applicant had paid for the mortgage. It was submitted that both parties had worked “exceptionally hard”.
It was submitted that by the end of the relationship the financial and non-financial contributions of the parties were equal.
It was acknowledged by the respondent that the applicant had received two inheritances during the marriage. The Court was referred to the Full Court decision of Jabour[5] as to how those funds should be treated.
[5] Jabour & Jabour [2019] FamCAFC 78, (2019) FLC 93-898, (2019) 59 Fam LR 475.
The respondent’s counsel described as “distasteful” the attempt by the applicant to “claw back” the alleged debt owing to his father. It was submitted that these funds needed to be seen as contributions and that the statute of limitations made such recovery statute barred. The Court was further referred to the decisions of Ogilvie & Adams[6] and the decision of Biltoft.[7]
[6] Ogilvie & Adams [1981] VR 1041 at [1049] and [1082].
[7] Biltoft & Biltoft [1995] FamCA 45, (1995) FLC 92-614, 19 Fam LR 39.
In relation to future needs it was submitted that both parties are of similar ages and have significant health issues. The respondent submitted that her primary care of her niece S was a “distinguishing feature”.
The respondent’s counsel submitted that the applicant had a “wealth of proposals” in relation to the future use of the B Street, Town C property but “zero effort” had been made by him in terms of any practical enquiry about their viability. The applicant was described as coming to the Court as a “novice with a B&B proposal”.
It was submitted by the respondent that the applicant contended that he was “impaired” and produced to the Court a great deal of evidence from his Workcover claim, yet on the other hand put to the Court that he was on a “road to recovery” and could undertake “labour intensive work into the future”.
The respondent’s counsel was critical of the applicant giving evidence that he could not drive a tractor, but then being critical of the respondent not undertaking slashing to the property. It was conceded that both parties “may have difficulties physically maintaining the properties in their own right”.
It was submitted by the respondent that the applicant had done nothing by the time of Trial in looking at other options for his accommodation.
The respondent’s counsel conceded that the applicant was short some $50.00 per week in income, assuming that the mortgage repayments remained at $332.50 per week. However, the respondent submitted that she would supplement this income by other means.
The respondent’s counsel submitted that the applicant could not refinance in his own right and that he was on a “better footing” because he had a “wealthy benefactor” by way of virtue of the largess of his father. It was submitted that the respondent should have the opportunity to keep the property and in the event that the respondent was unable to secure the necessary finance then the property should be sold with the applicant being at liberty to bid to purchase the property at auction. This was put as the respondent’s second proposal, namely an auction in the event that the respondent was unsuccessful in her own right to retain the B Street, Town C property.
In relation to the $20,000.00 superannuation withdrawal, it was submitted that those funds were paid directly to the applicant’s solicitors and in accordance with long standing principles should be added back into the pool. The same applied to the funds received in 2019 by way of redundancy which the respondent submitted should also form part of the asset pool available for division at Trial.
APPLICABLE LEGAL PRINCIPLES
The parties were in agreement at Trial that there should be an adjustment of their existing interests in the property available for division at Trial.[8]
[8] Stanford & Stanford (2012) 247 CLR 108.
The relevant sections of the Family Law Act 1975 (Cth) (‘the Act’) as they relate to de facto property are contained in section 90SM and 90SF respectively.
Section 90SM(1) of the Act provides that in property settlement proceedings after the breakdown of a de facto relationship, the Court may make such order as it considers appropriate.[9]
[9] Family Law Act 1975 (Cth) s 90SM(1).
In considering what order should be made under section 90SM, the Court must take into account the following factors:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(c) the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and
(e) the matters referred to in subsection 90SF(3) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.[10]
[10] Ibid s 90SM(4)(a)-(g).
In relation to section 90SM(4)(e), which are colloquially known as ‘the future needs factors’, the Court is also to take into account the following matters contained in section 90SF(3) of the Act:
(a) the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship ); and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(i) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party's role as a parent; and
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 90SM in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(o) the terms of any order or declaration made, or proposed to be made, under this Part in relation to:
(i) a party to the subject de facto relationship (in relation to another de facto relationship); or
(ii) a person who is a party to another de facto relationship with a party to the subject de facto relationship; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(p) the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:
(i) a party to the subject de facto relationship; or
(ii) a person who is a party to a marriage with a party to the subject de facto relationship; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(q) any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and
(r) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(s) the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and
(t) the terms of any financial agreement that is binding on a party to the subject de facto relationship.
PROPERTY ADJUSTMENT PURSUANT TO SECTION 90SM
As set out above, neither party argued against it being just and equitable to adjust the parties’ property interests pursuant to section 90SM of the Act.
On either party’s case this is a very long relationship. On the applicant’s case the relationship was 22 years in length. On the respondent’s case the relationship was for 28 years with a separation of about 7 months in 1993. On balance, I accept the respondent’s evidence as to the length of the relationship, noting that their only child was born in 1993.
Whilst the major assets and liabilities of the parties are either registered or secured in the sole name of the applicant, it is conceded by the applicant that the respondent has made both financial and non-financial contributions to the relationship which would justify an adjustment of existing property interests.
The applicant contends that if he is successful at Trial, the B Street, Town C property will simply remain registered in his sole name and no refinancing will be required as the existing mortgage is in his sole name. In addition, any settlement sum to be paid to the wife will be funded from the applicant’s father. The applicant’s father gave evidence that he has recently sold an investment property at Suburb E and it is the net proceeds of this property which will be utilised in order to pay the respondent a settlement sum.
The respondent contends that she should retain the B Street, Town C property and that she will refinance over the existing mortgages in the sum of $446,772.00.
Given the factual background to this case as set out above, I am satisfied that it is just and equitable to make an order for property settlement.
Section 90SM – contributions
Section 90SM(4)(a)-(b) – direct and indirect financial contributions
The parties agree that the applicant’s financial contributions were greater than that of the respondent.
The respondent also agrees that the applicant has brought into the relationship monies by way of inheritance being the sum of $50,000.00 in 2001 and the sum of $140,000.00 in 2007.
The applicant contends however that by virtue of the monies advanced by his father for the purchase of the property at Suburb E in 2001 in the sum of $140,000.00, plus expenses that this advancement provided a “springboard” upon which the parties accumulated greater wealth. Notwithstanding this argument, the applicant also contends that the funds are owing to his father and need to be brought to account at Trial.
The applicant’s submission in relation to the “springboard” was raised in the decision of Williams & Williams[11] in which the Full Court said:
We think that there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution towards the parties. Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing or the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in so doing it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.[12]
[11] Williams & Williams [2007] FamCA 313.
[12] Ibid [26].
The Full Court in Jabour (supra) said the following of the approach taken in Williams:
We consider that the decision in Baker and Bilous indicate that the Court in Williams somewhat overstated the importance of the increase in value of a piece of property at the expense of “the myriad of other contributions that each of the parties has made during the course of the relationship (Williams at [26]).[13]
[13] Jabour & Jabour [2019] FamCAFC 78 [43].
The Full Court in Jabour considered the way in which contributions are to be assessed and, in doing so, considered a number of case authorities. The Court cited and extracted the following from Wallis & Manning (2017) FLC 93-759, in which the wife appealed a property order on the basis that the primary Judge did not afford her contributions sufficient weight:
110.The approach adopted by the parties before her Honour is repeated in the supplementary submissions filed on behalf of the respondent husband; it is there asserted that “the contributions of the parties would be equal aside from gifting by the husband’s father of significant parcels of land which remain in existence at the present point in time”. Counsel for the wife, in his further submissions, makes no such specific assertion but implicitly does so by relying upon the trial judge’s findings and manner of assessment. For the reasons given earlier, we reject that approach; the gifts by the husband’s father should be taken into account as a contribution together with the miscellany of other contributions made by each of the parties over the course of their marriage.[14]
[14] Ibid [59].
The Full Court also noted that Wallis & Manning said, consistently, that:
20.Yet, that approach must also ensure that the “myriad of other contributions” and the duration over which, and circumstances in which, the miscellany of other s 79(4) contributions were made is not accorded a subsidiary role. The essential s 79(4) task is for “trial judges [to] weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation.[15]
[15] Ibid [60].
The approach to assessing contributions under section was carefully considered in Jabour when the Full Court noted the ways in which the trial Judge erred in weighing the contributions of the parties:
As can be seen the primary judge weighed the myriad contributions made by the parties against the contribution made by the husband in bringing in Property A rather than treating Property A as one of the myriad contributions made.[16]
Section 90SM(4)(c) – Contributions to the welfare of family including contributions as homemaker or parent
[16] Ibid [73].
The applicant concedes that the majority of the non-financial contributions into the welfare of the parties’ family were undertaken by the respondent. Common sense must suggest this is so in circumstances where for many years the applicant worked as a FIFO worker and was absent from the home.
I accept however the applicant’s evidence that when he returned to Adelaide he would also assist in caring for the family and undertaking household duties. The applicant also undertook work associated with the B Street, Town C property during his rostered weeks off.
I find that it was the respondent who was primarily responsible for the care of the parties’ child Mr K and her two nieces R and S. The respondent’s care of S continues despite S having reached the age of majority given her ongoing behavioural issues.
Section 90SM(4)(d),(f),(g) factors
The applicant contends that if he is successful in securing an order to retain the B Street, Town C property then he aspires to own a workshop to be operated from that location. Alternatively or in addition thereto, the applicant has made preliminary enquiries about operating “B&B” type accommodation from the residence. The state of the evidence at Trial however does not confirm that any of those business opportunities have been investigated or any application made by the applicant with the local council. At best, the applicant’s evidence as to those business opportunities could be placed as no higher than an “aspiration”.
The respondent similarly has considered future options for the B Street, Town C property. However like the applicant, no firm proposals were put forward at Trial.
The evidence does not permit the Court to make any finding as to whether or not the proposed order will affect the earning capacity of either party.
Section 90SM(4)(e) – The matters referred to in sub-section 90SF(3) as far as they are relevant
Section 90SF – future needs factors
Section 90SF(3)(a) – the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship )
The applicant is 49 years of age and the respondent is 53 years of age.
The applicant is currently in receipt of Workcover payments having applied for same in May 2020.
The applicant deposes to having had an operation on his right shoulder since separation, from which he is still recovering. The applicant will shortly have an operation on his right elbow. He deposes to possibly having further operations on his left shoulder and elbow and a nerve block operation on his back.
In paragraph 122 of his Trial affidavit the applicant describes his current injuries as:
(1)Injury to his right hand causing him to have pain and unable to grip things;
(2)Pain in his right elbow;
(3)Pain and restricted movement in his right shoulder; and
(4)Chronic back pain.
The applicant describes being on strong medication for his pain. The applicant informs the Court that he will not be able to resume the work he was doing prior to going on Workcover including:
(1)Trades work, management re-building and repairing and maintaining facilities or any of the work that he previously undertook at Town U;
(2)Transport work;
(3)Full time trades work; and
(4)Heavy manual work.
The respondent describes in paragraph 12 of her Trial affidavit to not being “in the best of health” and suffering “chronic ulcerative colitis”. The respondent describes receiving ongoing treatment involving infusions of “infliximab” every 6 weeks. The respondent deposes that without this treatment she would be “unable to work or leave the house easily or function that well on a day to day basis”.
Notwithstanding the respondent’s difficulties and to her credit, she has recently secured employment in hospitality working at a business known as “Employer H” at Town AA. It became apparent during cross examination that the said business is owned and operated by the neighbour to the parties’ home at B Street, Town C, Mr and Mrs Z. The wife’s evidence is that she is able to work up to 24 hours per week at the said business before her pension entitlements are significantly impacted.
The respondent contends that she will continue to work in the business post Trial.
Section 90SF(3)(b) – the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
Both parties describe likely difficulties in securing ongoing meaningful paid employment into the future due to illness and/or injury.
The applicant for his part is currently in receipt of Workcover payments in the sum of $1,220.00 per week. Those payments are due to decrease in May 2022 to $483.75 per week. The applicant was cross examined about an application that he has made to challenge the assessment of the level of injuries made by Workcover, Queensland who have assessed his injuries at 15% capacity. The applicant confirmed under cross examination that he was intending to challenge the finding as to 15% capacity.
The applicant contends that as the B Street, Town C and Suburb E properties are registered in his sole name and the loans are in his sole name then he will retain the loans and borrow further funds from his father in order to pay out the respondent. The applicant will not need to refinance as the settlement sum will be paid for by his father.
The applicant’s gross weekly income is said to be a total of $1,575.00 representing $1,200.00 per week from Workcover Queensland and rent for the Suburb E property by Mr DD in the sum of $375.00. The applicant has re-partnered with his new partner Ms EE, also in receipt of Workcover payments in the sum of approximately $800.00 per week. This evidence was not challenged. The applicant’s gross weekly income is therefore $2,375.00 The applicant’s Financial Statement provides for total weekly expenditure of $2,207.00.
In her Financial Statement, the respondent deposes to receiving receives a gross weekly income of $1,070.00 comprising:
(1)Salary of approximately $700.00 per week;
(2)Carer’s Pension of approximately $150.00 per week; and
(3)Board paid by her sister in the sum of $220.00 per week.
Exhibit A5 suggests that the respondent’s gross weekly income is $1,241.00 per week and outgoings of $1,306.65 per week.
Section 90SF(3)(c) – whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years
The parties’ biological child Mr K is now an adult. Neither party has any care or control of a child of the relationship. The respondent continues to support both financially and emotionally her niece S who continues to live with her. S has significant personal difficulties and is currently in receipt of a pension entitlements in the sum of $315.00 per week according to the respondent’s Financial Statement at paragraph 17. Neither party has a legal obligation to support S. It is a credit to the respondent that she has cared for S. However, her moral obligation does not equate to a legal obligation either for herself or the applicant such that it should be brought to account under the Act.
Section 90SF(3)(d) – commitments of each of the parties that are necessary to enable the party to support (i) himself or herself; and (ii) a child or another person that the party has a duty to maintain
I consider this paragraph is already reflected in the figures provided in paragraphs 193-198 above.
Section 90SF(3)(e) – the responsibilities of either party to support any other person
Not Applicable.
Section 90SF(3)(f) – subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under (i) any law of the Commonwealth, of a State or Territory or of another country; or (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party
As referred to above, the applicant is currently in receipt of a benefit paid by Workcover, Queensland in the sum of $1,200.00 per week. This sum is due to be reduced in May 2022 to an amount of $483.75 per week. The applicant’s evidence is that he will be challenging Workcover Queensland’s assessment of him.
The respondent is in receipt of a Carer’s Pension in the sum of $150.00 per week for S. Prior to securing employment as a hospitality worker, the respondent had been in receipt of Centrelink entitlements for many years.
Section 90SF(3)(g) – a standard of living that in all the circumstances is reasonable
The applicant contends that he will be able to use the B Street, Town C property as property to earn an income. The applicant deposes in paragraph 131 of his Trial affidavit that:
If I do not keep the B Street, Town C property I will not be able to get another property that I can set up to live in and earn income from. I am 49 years old, on Workcover that will decrease and after that will be on Centrelink benefits. I will not be able to re-finance or obtain a new loan. I will not be able to set myself up for the future.
The respondent contends that if successful, she will remain in the B Street, Town C property living with her sister and extended family members who will all contribute to outgoings such that the respondent will then be in a position to retain the property for her future. The respondent’s evidence described a communal like living arrangement where the respondent and her sister would live together at the property with the children who are in their care.
It is likely based on the available evidence that the parties will maintain a commensurate standard of living following the resolution of these proceedings.
Section 90SF(3)(h) – the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income
Neither party made submissions that the other should retrain or increase hours to improve their earning capacity.
Section 90SF(3)(i) - the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant
Not Applicable.
Section 90SF(3)(j) – the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party
Not Applicable.
Section 90SF (3)(k) – the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
The parties were in a relationship for approximately 28 years. The applicant maintained employment throughout that period and beyond. He applied for Workcover post separation in May 2020. The applicant’s future employment prospects will be determined by his state of health and his age.
The respondent has worked periodically during the relationship and now has part time employment at a business. The employment appears intrinsically linked to the respondent’s ambitions to retain the B Street, Town C property and to secure finance.
Neither party argued that their relationship affected the other’s earning capacity in those circumstances.
Section 90SF(3)(l) – the need to protect a party who wishes to continue that party's role as a parent
Not Applicable.
Section 90SF(3)(m) – if either party is cohabiting with another person--the financial circumstances relating to the cohabitation
The applicant has now re-partnered and is residing with Ms EE. Ms EE is said to be 55 years of age and in receipt of Workcover entitlements it the sum of approximately $800.00 per week. There was no cross examination in relation to this evidence.
The respondent has not re-partnered.
Section 90SF(3)(n) – the terms of any order made or proposed to be made under section 90SM in relation to: (i) the property of the parties; or (ii) vested bankruptcy property in relation to a bankrupt party
Not Applicable.
Section 90SF(3)(o) - the terms of any order or declaration made, or proposed to be made, under this Part in relation to: (i) a party to the subject de facto relationship (in relation to another de facto relationship); or (ii) a person who is a party to another de facto relationship with a party to the subject de facto relationship; or (iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or (iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii)
Not Applicable.
Section 90SF(3)(p) the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to: (i) a party to the subject de facto relationship; or (ii) a person who is a party to a marriage with a party to the subject de facto relationship; or (iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or (iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii)
Not Applicable.
Section 90SF(3)(q) – any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship
Not applicable.
Section 90SF(3)(r) – any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
One of the central issues at Trial was the application of each of the parties to retain the B Street, Town C property.
The applicant contends that if he is successful he will pay to the respondent what he describes as an “inflated amount beyond the wife’s entitlement as recognition for the de facto husband’s strong desire to retain the property” which he calculates as being 52% of the net pool and with “the loan to the de facto husband’s father removed”. The applicant contends that with the de facto husband’s father’s debt included in the net non-superannuation pool the calculation would then equate to a 58.24% division in favour of the respondent.
If the Court does not make an order which would see the applicant retain the B Street, Town C property, then the applicant seeks a settlement sum being paid to him in the amount of 58.73% which the applicant argues “appropriately reflects the substantial financial contributions made by him during the relationship and post separation”. On the asset pool promoted by the applicant, this would result in the respondent paying the following:
(1)The sum of $75,840.00 to the applicant; and
(2)Discharging in full the mortgage in the sum of $446,772.00.
The respondent argues that an order which would be just and equitable would result in the respondent simply taking over the mortgage amount of $446,772.00 but with no adjustment in favour of the applicant such that would see him being paid a settlement sum.
The respondent argued that as a consequence of the child S’s special needs, preference should be given to her application to retain the B Street, Town C property in circumstances where S benefits from the rural aspect and outlook that the property brings.
The respondent further submits that the Court should exercise its discretion in her favour because:
(1)She located the property prior to purchase;
(2)She has occupied the property since separation; and
(3)The property is close to her employment at Town AA
Notwithstanding that S lived with the parties during their relationship, she is not a child of the relationship. The applicant has elected not to maintain a relationship with her. S’s needs as they allegedly relate to the respondent retaining the B Street, Town C property are not matters that I consider should be brought to account at Trial. The respondent conceded that it was only relatively recently that she had contemplated her ability to retain the said B Street, Town C property. In those circumstances the respondent must have turned her mind to the fact that alternate accommodation would need to be secured for herself and S into the future.
Finally, the parties accept that who is to retain the B Street, Town C property is an exercise of the Court’s discretion. The dispute between them is a legitimate one and neither party can be criticised for seeking to retain the property in their own right. The Court is required to determine this issue which is an emotional and important outcome for each of the parties at Trial.
Section 90SF(3)(s) -the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship
Not Applicable
Section 90SF(3)(t) -the terms of any financial agreement that is binding on a party to the subject de facto relationship
Not Applicable
Conclusion regarding the parties’ contributions and section 90SF(3) matters
I find that the parties made direct equal contributions both financially and non-financially to the relationship. Their contributions were both equally important to the relationship, but came in a “myriad” of different ways.
The applicant however contributed funds from his father which greatly assisted the parties to get ahead financially. For the reasons set out herein, there should be a 5% adjustment in favour of the applicant on account of these capital injections.
I find that there should be no adjustment bringing to account the section 90SF(3) factors, nor did either party seek such an adjustment at Trial.
WHAT IS THE JUST AND EQUITABLE EXERCISE OF DISCRETION
Having assessed contributions and other relevant matters, the Court is required to consider whether, in light of those assessments and the actual property to be divided, the proposed exercise of the discretion pursuant to section 90SM of the Act is just and equitable.
Before considering whether the above decision is just and equitable, the Court must determine which party (if any) should retain the B Street, Town C property.
The applicant has maintained throughout the proceedings that he should retain the B Street, Town C property. He does not require formal finance.
The respondent’s desire to retain the B Street, Town C property is a relatively recent development. The respondent’s evidence is that it was not until recently that she understood that she would be eligible to apply for a loan. Mr CC the broker was not called to give evidence.
In their own right, neither party is in a strong financial position at Trial.
However, the respondent’s position to retain the B Street, Town C property appears on the evidence to be aspirational and late in the running. Her evidence leaves the Court with the unsettled feeling that the respondent has attempted to address this issue in the period immediately leading up to the Trial and has pitched her proposal on what was possible rather than what was just and equitable. The respondent did not call her sister who was said to be advancing the sum of $60,000.00 towards refinancing. The respondent did not call her neighbour Ms Z who was said to be providing the sum of $30,000.00. There are genuine concerns and discrepancies in relation to the respondent’s application for finance as evidenced in the application form marked Exhibit A3, including misinformation as to the nature of her employment. The mortgage broker Mr CC was an important witness for the respondent and he was not called. This was a glaring hiatus in the evidence given that his evidence should have served to satisfy the Court that the respondent could legitimately retain the B Street, Town C property as she sought. The failure to call Mr CC only serves to enforce the applicant’s submission that the respondent’s proposal was put forward hastily before the Trial commenced and in a vain attempt to keep the property.
The applicant’s position is that he has the borrowing capacity to maintain the existing loan repayments and that no further refinancing is required as the loans are already in his name. He has largely met the outgoings since separation. The applicant’s father gave evidence that he will provide the necessary finance. Mr G gave evidence in a direct and businesslike way and I accept his evidence on this topic.
I am not satisfied that the respondent has established that she has the financial means to take on the mortgage or to pay the applicant a settlement sum due to him if one was ordered by the Court in addition to discharging the current loans.
On balance, I am satisfied that it is just and equitable to permit the applicant to retain the B Street, Town C property.
THE OVERALL EFFECT OF THE ORDERS
My assessment of the parties’ contributions and section 90SF(3) factors would have lead me to a conclusion that the parties net non-superannuation assets should be divided 55% to the applicant and 45% to the respondent.
The net non-superannuation pool is $1,008,485. The respondent’s entitlement is $453,818.00. The respondent will retain assets totalling $69,957.00, being her personal savings, motor vehicle and personal effects. This would see the applicant pay the respondent the sum of $383,861.00 to make up her proper entitlement.
However, the applicant is prepared to pay a premium to secure the B Street, Town C property by paying the respondent a settlement sum of $450,000.00. The respondent has net assets totalling $69,957.00. A payment of $450,000.00 would see the respondent receiving almost 51.5% of the net assets and with the liability to Mr G removed. Given that this is the order sought by the applicant, I propose making orders in those terms.
The parties superannuation entitlements will be equalised, but adding back the sum of $20,000 as sought by the respondent. The splitting order will therefore be $63,936.00.
I am satisfied that given the length of the relationship, the parties contributions and my findings thereon and the section 90SF factors that the orders set out herein providing for an adjustment of the parties property interests are just and equitable in the circumstances.
CONCLUSION
For all of the above reasons, I make orders as set out at the commencement of this Judgment.
I certify that the preceding two hundred and forty-seven (247) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Associate:
Dated: 22 April 2022
SCHEDULE A
VALUE 56 DVDs, CDs, Books $60.00 100 Fire Trailer $2,000 101 Motor Vehicle 1 $6,000.00 102 Various items as listed $100.00 103 Trailer … $2,000.00 104 Dinghy … $300.00 105 Trailer … $1,500.00 106 Various items as listed $200.00 107 Gantry $50.00 108 Hoist $400.00 109 Motorbike 1 $600.00 110 Motorbike 2 $650.00 111 Motorbike 3 $100.00 112 Motorbike 4 $100.00 113 Motorbike 5 $400.00 114 Motorbike 6 $700.00 115 8 various push bikes, trike, Go Kart frame, part pedal motorcycle $130.00 116 Steel Bike Rack $20.00 118 Cement trough, case iron ware, triangle, Mirabella flood light and sundries $50.00 119 Push Bike $100.00 120 Various items as listed $60.00 121 Contents under bench as listed $100.00 122 Items as listed $55.00 123 Bar and contents as listed $135.00 124 Various tools as listed $150.00 125 Grille $50.00 126 Oil Drum $60.00 127 Display Refrigerator $80.00 128 Various items as listed $150.00 129 Chairs, pictures & sundries $10.00 130 Gas Tank BBQ $50.00 131 Motorbike 7 $500.00 132 Motorbike 8 $200.00 133 Air compressor $40.00 134 Extension cord & sundries $30.00 135 Anvil $300.00 137 Tables as listed $50.00 138 Tools as listed $80.00 139 Cable Slings $40.00 140 Ride on mower $700.00 141 Motor Vehicle 2 $3,000.00 142 20’ Shipping Container $1,300.00 143 Various items as listed $200.00 144 Caravan $2,000.00 145 Fridge Freezer $300.00 146 Motorbike 9 $10,000.00 147 Motorbike 10 $2,000.00 148 Motorbike 11 $5,000.00 149 Motorbike 12 $6,000.00 150 Motorbike 13 $8,000.00 151 Motorbike 14 $5,000.00 152 Outboard motor $150.00 153 Various items as listed $220.00 156 Various items as listed $50.00 157 Garage Jacks $80.00 158 Motor Vehicle 3 $3,000.00 159 Tractor $2,000.00 160 Various items as listed $80.00 162 Various items as listed $200.00 163 Various items as listed $100.00 164 Motorbike 15 $200.00 165 Timber Canoe $300.00 166 2 x Engine Stands $100.00 167 Steel cabinet and contents $50.00 168 Air Compressor $40.00 169 Garage Jack $60.00 170 Welder $40.00 171 Heating Unit $40.00 172 Arc Welder $120.00 173 Tyres $100.00 174 High Pressure Cleaner $20.00 175 Welding Table $100.00 176 Various items as listed $80.00 177 Ramps $70.00 178 Shade Sail $50.00 179 Shelving $10.00 181 Traffic lights $40.00 182 Shelving Unit $100.00 183 Various items as listed $150.00 184 Various items as listed $30.00 185 Various items as listed $50.00 186 Air Compressor $100.00 187 Block & Tackle $30.00 188 Battery Charger $35.00 189 Various items as listed $50.00 190 Pedestal Fan $35.00 191 Various items as listed $70.00 192 Various items as listed $130.00 193 Various items as listed $80.00 194 Child’s Quad Bike $90.00 195 Motorbike 16 $2,000.00 196 Motorbike 17 $1,000.00 199 Angle Grinder $20.00 200 Hammer Drill $20.00 201 Circular Saw $30.00 202 Heat Gun $10.00 203 Angle Grinder $25.00 204 Polisher $15.00 205 Chain Saw $80.00 206 Grinder $30.00 207 Drill $100.00 208 Chain Saw $45.00 209 Shelving $50.00 211 Various items as listed $90.00 212 Bench $120.00 213 Drop Saw $100.00 214 Motorcycle Lift $120.00 215 Air Compressor $70.00 216 Circular Saw $80.00 217 Battery Charger $70.00 218 Bike Lifter $200.00 220 Tool Cabinet $110.00 221 Tool Cabinet $350.00 222 Punch Bag $40.00 223 Engineers Vice $40.00 224 Trolley $15.00 225 Helmets $60.00 226 Chain Saw $275.00 228 Bench $30.00 229 Filing Cabinet $15.00 230 Air Compressor $30.00 231 Tool Box $25.00 239 Motor Vehicle 4 $2,000.00 240 Motor Vehicle 5 $500.00 241 Motor vehicle 6 $800.00 242 Motor Vehicle 7 $800.00 243 Motor Vehicle 8 $1,500.00 244 Quad Bike $250.00 245 Motorbike 18 $4,500.00 91 Pool Table $500.00 TOTAL $85,465.00
SCHEDULE B
VALUE 1 Hall Stand $60.00 2 Dining Suite $50.00 3 Plant Pot $20.00 4 Trunk $40.00 5 Various items as listed $50.00 6 Entertainment Cabinet $50.00 7 Entertainment System $250.00 8 Cushions, table lamps ornaments, brass vase $20.00 9 Lounge suite $500.00 10 Various items as listed $20.00 11 Open shelf unit $70.00 12 Various items as listed $50.00 14 Fridge/Freezer $250.00 15 Bar stools $45.00 16 Various items as listed $300.00 17 Cabinet $30.00 18 Cabinet $10.00 19 Shelf units $20.00 20 Student desk $10.00 21 Computer System $130.00 22 Clothes Airer $10.00 23 Various items as listed $50.00 24 Vacuum Cleaner $100.00 25 Tool Box $100.00 26 Chest $15.00 27 Various items as listed $50.00 28 Fridge/Freezer $50.00 29 Cabinet $10.00 30 Washing Machine $150.00 31 Tumble Dryer $60.00 32 Ladder $25.00 33 Various items as listed $40.00 34 Various items as listed $45.00 35 Bed $200.00 36 Chest $80.00 37 Towel Rack $10.00 38 Cheval Mirror $20.00 39 Shelf Unit $30.00 40 Cabinet $20.00 41 Heater $20.00 42 Fan $15.00 43 Chair $30.00 44 Blanket Box $40.00 45 Various items as listed $50.00 46 Entertainment System $60.00 47 Ornament $70.00 48 Various items as listed $40.00 49 Bed $50.00 50 Screen $10.00 51 Cabinet $20.00 52 Various items as listed $30.00 53 Bed $40.00 54 Wall Mirror $20.00 55 Various items as listed $15.00 57 Bed $50.00 58 Chest $40.00 59 Bedside Chest $20.00 60 Various items as listed $40.00 61 Lounge Suite $40.00 62 Occasional Table $10.00 63 Shelf Unit $20.00 64 Carpet Square $30.00 65 Console Table $40.00 66 Entertainment System $100.00 67 Screen $30.00 68 $15.00 69 Various items as listed $40.00 70 Various items as listed $45.00 71 Various items as listed $50.00 72 Settle $70.00 73 Chairs $20.00 74 Rocking Chairs $30.00 75 Patio Suite $25.00 76 Various items as listed $35.00 77 Fire Pit $100.00 78 BBQ $20.00 80 Pots $20.00 81 Wine Barrel $50.00 82 BBQ $60.00 83 Dining Suite $70.00 84 Sack Truck $20.00 85 Television $50.00 86 Various items as listed $75.00 87 Bar $30.00 88 Shelf Unit $10.00 89 Drums $5.00 90 Lounge Suite $30.00 92 Signs $40.00 93 Television $100.00 94 Vacuum Cleaner $110.00 95 Juke Box $1,200.00 96 Bar Stools $10.00 97 Signs $50.00 98 Stubby Holders $50.00 99 Various items as listed $60.00 136 Various items as listed $85.00 145 Bus $25,000.00 154 Dog Kennel Run $40.00 161 Patio Gas Heater $50.00 180 Hot Water Service $10.00 197 Motorbike 19 $600.00 210 Trimmer $40.00 219 Various items as listed $100.00 232 Armchairs $80.00 233 Television $20.00 234 Side Table $20.00 235 Book Shelf $20.00 236 Bed $50.00 237 Bunk Bed $30.00 238 Motor Vehicle 9 $10,000.00 Motor Vehicle 10 $7,000.00 Motorbike 20 $1,000.00 TOTAL $50,605.00
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