Doyle and Lynch
[2011] FMCAfam 1320
•5 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DOYLE & LYNCH | [2011] FMCAfam 1320 |
| FAMILY LAW – Property – dispute regarding length of relationship prior to marriage – determined relevant period of relationship seven years in duration – small asset pool – assessment of contributions – assessment of s.75(2) factors – husband in receipt of disability support pension – wife currently unemployed but previously modest income earner – just and equitable. |
| Family Law Act 1975, ss.75(2), 79(4) |
| Lee Steere v Lee Steere (1998) FLC 91-626 Ferraro v Ferraro (1993) FLC 92-355 Clauson v Clauson (1995) FLC 92-595 Hickey v Hickey & Attorney-General of the Commonwealth of Australia (Intervenor) (2003) FLC 93-143 Biltoft & Biltoft (1995) FLC 92-614 Russell v Russell (1999) FamCA 187 Waters & Jurek (1995) FLC 92-635 D v McA (1996) DFC 92-030 Olliver & Olliver (1978) FLC 90-499 In the Marriage of Townsend (1994) 18FamLR 505 AJO v GRO (2005) 33 FamLR 134 Pierce & Pierce (1999) FLC92-844 |
| Applicant: | MR DOYLE |
| Respondent: | MS LYNCH |
| File Number: | ADC 3118 of 2009 |
| Judgment of: | Brown FM |
| Hearing dates: | 2, 22 & 23 August 2011 |
| Date of Last Submission: | 23 August 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 5 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms T Lewis |
| Solicitors for the Applicant: | Websters Lawyers |
| Respondent: | In person |
ORDERS
In full and final settlement of all claims for matrimonial property:
Within sixty (60) days of the date of these orders the wife pay to the husband the sum of one hundred thousand dollars ($100,000.00).
In the event the wife is unable to comply with order 1 hereof, she execute all necessary documents and do all things necessary to place the former matrimonial home situated at Property M in the State of South Australia and being the whole of the land comprised in Certificate of Title Register Book Volume [omitted] on the market for sale for a price of not less than $340,000.00 or such other sum as the parties mutually agree with the proceeds of sale to be paid as follows:
(a)Firstly to pay the costs, commissions and expenses in relation to the aforesaid sale;
(b)Secondly to discharge the mortgage on the property;
(c)Thirdly the sum of $100,000.00 to the husband; and
(d)The balance to the wife.
Subject to order 2 hereof each party be declared solely entitled to the exclusion of the other to all property and chattels of whatsoever nature and kind in the possession of such party as at the date of the making of these orders and for that purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s and insurance policies and superannuation entitlements are deemed to be in the possession of the beneficiary thereof.
The applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Doyle & Lynch is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 3118 of 2009
| MR DOYLE |
Applicant
And
| MS LYNCH |
Respondent
REASONS FOR JUDGMENT
Introduction
These are matrimonial property proceedings. Mr Doyle “the husband” and Ms Lynch “the wife” met in early 1996 in Adelaide. They married [in] 2005 and separated in early 2009.
The parties have no children. The husband suffers from a psychiatric disability characterised by anxiety, paranoia and depression. He has not been in paid employment for several years. He was granted a disability support pension on 5 March 1998.[1] At the time of this grant, he was 22 years of age.[2]
[1] See Annexure A to the husband’s affidavit filed 12 October 2010
[2] Mr Doyle’s date of birth is [omitted] 1975
At the time the parties met, the wife was a 16 year old high school student.[3] She had recently moved to Adelaide, from [K], where her parents live, to finish her secondary education. She attended [omitted] High School. In 1997, she commenced an [qualification omitted] at TAFE.
[3] Ms Lynch’s date of birth is [omitted] 1979
In early 1999, whilst she continued to study part-time, Ms Lynch obtained employment at [W]. She remained employed by [W] until April 2008. She has completed her Diploma studies.
These background matters are not in dispute. The parties acknowledge that they have known each other for a significant period of time. Where they disagree is what has been the nature of their relationship since they first met and particularly afterwards.
It is the husband’s position that the parties became emotionally committed to one another very soon after they met. This level of commitment led to the parties living together and sharing their lives, as husband and wife, from November of 1996 onwards, a state of affairs which continued uninterrupted until their final separation in March of 2009.
The wife characterises herself as a naïve and vulnerable school student, when she met the husband for the first time. It is her case that her intimate relationship with the husband ended in 1999 because of his abusive behaviour towards her. At this stage, neither party had any assets of significant value.
Thereafter, it is her case that there was a lengthy break in the parties’ relationship, although they did see one another from time to time. She asserts that she was involved in relationships with other persons, during this period, and certainly did not live permanently with the husband as a de facto couple. Underpinning her case, is her assertion that she and Mr Doyle maintained separate finances and bank accounts.
It is Ms Lynch’s case that she and Mr Doyle became emotionally committed to one another, once again, in 2003, a period which coincided with Mr Doyle ceasing to abuse alcohol and drugs and later being briefly employed as a [omitted].
It was in this context that she asserts she accepted his proposal of marriage and the two began to live together a few months prior to their wedding. It would be from this date, in mid 2005, that Ms Lynch asserts was the period from which the parties had a marital relationship and began to meld their financial and domestic affairs together. Essentially, Ms Lynch says the parties began to live together as a permanent couple only from mid 2005.
Ms Lynch has always been a modest income earner. Ostensibly at least, Mr Doyle’s only source of income for the vast majority of the period in question has been social security. Accordingly, at this stage, the parties do not have a significant level of asset backing.
The most significant asset relevant to these proceedings is the home in which the parties were living at the time of their separation. This property is located at Property M. It is valued at $340,000.00. The wife lives there still.
The property was purchased, in the wife’s sole name, in July of 2000. She alone applied to the Adelaide Bank for mortgage finance, in the sum of $118,500.00, to complete the purchase. She alone is noted as the recipient of a First Home Owners Grant in respect of the property.
The purchase price of the property was $125,000.00. Accordingly, the vast majority of the purchase price was borrowed. It is the wife’s case that it was due to her efforts alone that she was able to save a deposit of $8,000.00 in order to purchase the property, which was her enterprise alone and thereafter she paid the necessary mortgage payments on the property. She states that Mr Doyle did not live in the property until mid 2005 and so made no contributions to its acquisition and preservation prior to this date.
The husband’s position is that he was integral to the purchase of the Property M property but was excluded from the legal formalities at the wife’s behest because it was said he would not be eligible for mortgage finance and would find it stressful to have legal liability for such a significant loan.
In marked contrast to Ms Lynch, Mr Doyle asserts that he lived in the Property M property from the time it was purchased and supported the wife as a homemaker, whilst she was at work. In addition, it is his case that he undertook renovations and improvements, at the property, in the years prior to the parties’ marriage.
Since the date of the purchase of the Property M property, the mortgage to the Adelaide Bank has been steadily reduced. Documentary evidence produced by Ms Lynch indicates that the amount owing on the mortgage as at 26 July 2011 was $33,258.64.[4] However, it transpires that Ms Lynch withdrew $30,000.00 from the mortgage’s redraw facility shortly prior to the commencement of the hearing.
[4] See Exhibit I
The wife is not currently working. She left her job at [W] in April 2008 following an incident of bullying. She was on Workcover payments prior to ceasing employment. She has had some periods of employment since leaving [W] but has left the various positions concerned because of difficulties she has encountered in her subsequent workplaces.
It is Ms Lynch’s case that she remains psychologically vulnerable and has had difficulty obtaining employment in the period since, although she has been able to obtain work from time to time. She asserts that she withdrew the $30,000.00 from the mortgage to cover her future living expenses in anticipation of being out of the work force for some time.
The circumstances surrounding the withdrawal are controversial, so far as Mr Doyle is concerned. It is his case that the monies were withdrawn in order to deplete the matrimonial funds available to be distributed between the parties. He is also dubious about the wife’s claim of ongoing emotional fragility and difficulty in obtaining permanent employment.
Mr Doyle has been in receipt of a disability pension for many years. He is currently living with his mother and step-father. It is his position that he is unlikely to be ever able to support himself financially through paid employment, which in his case is a significant factor favouring him in the distribution of the parties’ matrimonial assets.
However, the most significant factual issue in dispute between the parties concerns the date at which their marriage-type relationship began. In this regard, the parties have diametrically opposing positions. The husband’s position is that the relationship began in late 1998. The wife’s position is that it was in mid 2005.
If the husband’s position is accepted by the court, this raises further issues. The husband’s case is predicated on the basis that in the period from 1998 onwards, he made significant financial contributions, which enabled Ms Lynch to save the deposit for the Property M property and pay the recurrent mortgage payments.
The only source of this financial contribution can be Mr Doyle’s social security entitlements. He concedes that, during this period, he claimed a disability pension at the single rate. Accordingly, in the calculation of the pension paid to him, no reference was made to Ms Lynch’s income. This income would have been relevant if Centrelink had regarded Mr Doyle as being in a de facto relationship with Ms Lynch.
Accordingly, potentially, Mr Doyle’s financial contribution to the marriage rest on the fact that he misrepresented his circumstances to Centrelink enabling him to receive monies to which he was not entitled. It is the wife’s case that, with her assistance, Mr Doyle advised Centrelink of his proper personal circumstances in the period immediately following the parties’ marriage. It is thus her case that records held by Centrelink, regarding Mr Doyle’s place of residence, are likely to be the correct ones.[5]
[5] See Exhibit C
Besides the parties themselves, both Mr Doyle and Ms Lynch called members of their respective families to corroborate their account of when the marriage-type relationship began between them. In the husband’s case, he called evidence from his mother, step-father and brother. In the wife’s case, she called evidence from her mother, father and sister.
As might perhaps be predicted, in each case, these various witnesses followed the natural human tendency to support the case as advocated by their respective kith and kin. As such, there was little in the nature of independent evidence to support the respective positions of each of the parties.
The case occupied approximately three sitting days. The proceedings were vigorously contested. Mr Doyle was represented by counsel.
Ms Lynch appeared on her own behalf. Ms Lynch is a determined person. She seemed to have a grasp of the salient issues in the case and had made concerted efforts to gather relevant evidence which support her position. However, her lack of legal training necessarily meant that her case was not as well prepared as was the husband’s.
Both parties attempted to re-construct their past history together, through a wide variety of documents, which each had either retained or had subpoenaed. Regrettably, given the fairly lengthy period of time involved, during which the parties dispute the nature of their relationship, the documentary record available to me was far from complete. In addition, Mr Doyle himself concedes that he is not the best historian and has difficulty in remembering specific dates on which events happened.
From both parties’ point of view, each perceives that it is important to establish with exactitude the date on which the parties’ relationship, at times a troubled one, coalesced into what can be characterised as being the same as a marriage. This meant that the main focus of the case was more on this aspect rather than on an analysis of what each had contributed toward the actual acquisition of property.
In more conservative or traditional times, the readily ascertainable date on which parties married provided the reference point from which their formal relationship as partners in life could be taken to have began. It was from this date that the world at large understood that the two individuals concerned had joined their lives together as sexual, emotional and financial partners, in the sense that each was committed to provide to the other support and succour from that date onward until their relationship was severed by death or divorce. As such there were readily understood consequences arising from their act of marrying.
In this day and age, there is little, if any, social stigma attached to couples who have a sexual relationship outside of marriage or who form casual liaisons with one another. The incidence of marriage has declined in the last quarter century or so. Couples may share domestic circumstances, which involve varying degrees of commitment towards one another, characterised by the sharing or otherwise of varying aspects of life. Couples may have the most intimate of emotional relationships but, for pragmatic reasons, choose to keep their financial arrangements entirely separate.
In addition, these relationships may be predicated on all sorts of bases or conditions which are not readily ascertainable by members of the wider community. In such circumstances, it may be imprudent for any outsider to assume what is the exact nature of an apparent couple’s relationship. Indeed, the two members of a couple may themselves have a different view about what is the precise nature of their relationship together at different times throughout the period of their involvement with one another.
In these circumstances, it may be difficult for an outside authority, such as this court, to reconstruct at a latter stage what was the intention or understanding of the parties concerned at the time they became involved with one another and afterwards. Necessarily, a marriage involves a significant degree of commitment. A marriage is usually unambiguous. Other relationships between a man and a woman may not readily provide indicia of commitment.
For all of these reasons, the proceedings were emotionally charged. In my view, for the reasons which follow, neither party can be regarded as entirely credible. Notwithstanding these difficulties, the court must attempt to reach an outcome which is just and equitable to both parties in all of the circumstances prevailing.
Mr Doyle has a prior conviction for the cultivation of cannabis.
Ms Lynch was convicted of possession of a quantity of the drug arising from that cultivation, which was detected at the Property M property. Ms Lynch’s position is that she was implicated in the criminal enterprise concerned by Mr Doyle, who in the past has been involved in criminal activities pertaining to illicit drugs. Essentially, it is her case that she was an innocent abroad who incurred a criminal record because Mr Doyle exposed her to his illegal activities.
In addition, as previously indicated, Mr Doyle acknowledges that he has not always been candid with Centrelink in his description of his personal affairs to them. It is not my role to pass judgement on either party for past criminal behaviour for which they have already been held accountable.
However these matters cause me to have some reservations about
Mr Doyle’s overall credibility in particular. For obvious reasons, a tension is created by a person indicating that he has been dishonest in one significant aspect of his past financial life but otherwise presents himself as being a person of integrity in another aspect of his life.
Ms Lynch characterises Mr Doyle as being a person who is prone to excessive alcohol consumption, which has caused him to be violent to her. Mr Doyle acknowledges that he has had issues to do with mental illness in the past. Ms Lynch asserts that Mr Doyle’s conduct towards her has caused her to be fearful of him and to separate from him as a result.
Although there is a dearth of independent evidence to support
Ms Lynch’s assertions in this regard, I do not find myself able to dismiss them. Ms Lynch’s parents and sister share the wife’s current assessment of Mr Doyle behaviour during the period the parties were involved with one another. In my view, this is a factor with some relevance to assessing the nature of the parties’ relationship with one another, particularly in the period which is the most contested between them, being from around the end of 1998 to 2004.
Ms Lynch has been a modest income earner. She also strikes me as being extremely frugal. She puts great store in being financially secure and self supporting. As a result, it is important to her that she has the security of owning bricks and mortar and having a roof over her head, which she owns. For this reason, Ms Lynch, although a young person with many productive years of life before her, has much at stake in the current proceedings.
In these circumstances, she is not inclined to yield on what she regards as being her property. Mr Doyle seemed to me to be less concerned about his future financial security, but his circumstances, unlikely to change markedly in future, preclude him from the path which leads to home ownership. Accordingly, he also has much at stake in the case.
Given these factors, both parties are likely to have followed the natural human tendency to have reconstructed their past involvement with one another in such a way to favour the outcome of their preference. Accordingly, I do not regard either party as being a completely objective historian regarding either their financial or personal relationship together.
Accordingly, in my view, it would be trite for me to determine the case simply on the basis that I prefer the evidence of the wife over that of the husband or vice versa. Rather, what I have attempted to do, as best I can, is analysis the evidence available to me to determine where I think the truth ultimately lies.
The standard of proof applicable in this case is proof on the balance of probabilities. This standard is to be applied to the evidence led before the court. This evidence comprises the various affidavits of the parties themselves; their various supporters; and other documents tendered in the case.
The husband’s case is that he should receive 40% of the value of the former matrimonial home, which should be calculated with the exclusion of the recent redraw from the mortgage made from
Ms Lynch. He does not seek any split from the wife’s superannuation, which is valued in the sum of just under $30,000.00 at present.
The wife’s position is that Mr Doyle’s application should be dismissed. In these circumstances, she seeks a formal order analogous to a declaration that she is entitled to retain the Property M property and all other items of property, including superannuation, in her control, free of any claim from the husband. However, it would appear to be her case that she is prepared to countenance a modest payment to the husband attributable to some equitable interest he has acquired in the Property M property.
These proceedings are designed to resolve the various disputes between the parties and, as far as possible, finalise their financial relationship with one another.
The Applicable Legal Principles and Evidentiary Issues
The process to be followed, for the division of the parties’ property, is well established by law.[6] The relevant legal principles are primarily contained in Section 79 and 75(2) of the Family Law Act 1975. I am required to follow a number of steps.
[6] See Lee Steere v Lee Steere (1998) FLC 91-626; Ferraro v Ferraro (1993) FLC 92-355; Clauson v Clauson (1995) FLC 92-595; Hickey v Hickey &Attorney-General of the Commonwealth of Australia (Intervenor) (2003) FLC 93-143
Firstly, I must ascertain what are the parties’ assets and liabilities as at the date of trial.[7] This step creates areas of contention between the parties in the following areas:
·The parties’ agree that the Property M property is worth $340,000.00[8].
·The parties’ disagree as to the sum which should be attributed to the mortgage secured against the property.
·The husband asserts that the property should be essentially regarded as unencumbered. The wife asserts that the current mortgage balance of around $30,000.00 should be utilised.
[7] See Biltoft & Biltoft (1995) FLC 92-614
[8] See Exhibit J
The second step involves the court ascertaining the contributions which each party has made towards those assets. Contributions fall into two broad categories. The first kind is contributions to the property: financial contributions and non-financial contributions, made directly or indirectly, by or on behalf of a party to the marriage to the acquisition, conservation or improvement of any of the property.
The second kind is contributions to the welfare of the family: in the words of the section, “the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage, including any contribution made in the capacity of home maker or parent.”[9]
[9] See Family Law Act s.79(4)(c)
It is clear from the authorities that this second kind of contribution must be given appropriate weight and is not to be treated as a token matter or as a contribution which is inherently less valuable or important than a financial contribution to property.
The second step occasions controversy between the parties in the following areas:
·When did the marriage-type relationship between the parties begin – late 1996 or mid 2005.
·If the former date is preferred, the husband asserts that he has made significant non-financial contributions as a homemaker and in respect of ongoing maintenance on the Property M property.
·In addition, after 2000, he made non-financial contributions, in the form of improvements to the Property M property, which increased the properties value.
·It is also the husband’s position that between 1998 and the date of the parties final separation he made direct financial contributions in the form of his disability support pension.
·If the latter date is preferred, it is the wife’s position that she brought into the marriage the Property M property, which she had herself improved by various additions and improvements, particularly a pergola.
·Again, if the latter date is preferred, it is the wife’s position that between 2000 and 2005, her financial contributions alone secured both the acquisition of the Property M property and the payment of the ongoing mortgage payments in respect of it.
·In these circumstances, she would characterise the husband’s financial contributions as being minimal.
·In addition, the wife would characterise the husband’s non-financial contributions, as a homemaker, as being modest.
·It is also the wife’s case that she has made significant contributions, post separation, in maintaining the Property M property.
·Mr Doyle was a disability support pensioner at the beginning of the parties’ relationship and remains so at its conclusion.
At the end of the second stage, the husband asserts that the parties’ various contributions, during the duration of their marriage as he has specified it, should be regarded as being equivalent to 20% of the parties’ pool of marital assets. Accordingly, he concedes the wife’s significant financial contributions arising as a result of her employment at [W].
Ms Lynch has not attempted to reduce to percentage terms her assessment of the parties’ various contributions, during the duration of the marriage as she has specified it. However, it would appear to be her position that Mr Doyle’s contributions should be regarded as being negligible.
The third step involves the assessment of the parties’ prospective needs, by reference to the factors set out in section 75(2) of the Family Law Act 1975. The court must also have regard to the factors set out in section 79(4)(d) to (g).
Pursuant to section 75(2)(o), the Court is entitled to take into account “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”.
In the main, section 75(2) deals with the prospective needs of the parties. This area creates some controversy between the parties, although the husband concedes that overall the matters arising under section 75(2) favour the wife.
The following considerations arise at the third step:
·The husband asserts that there is likely to be a significant discrepancy in the parties’ income for the indefinite future.
·The wife has qualifications in [omitted] and has been employed for length periods of time in the past.
·He, on the other hand, has no history of regular employment and is in receipt of a disability pension because of his psychological disabilities.
·
It is also the wife’s case that, given the short duration of the marriage, the marriage has had no implications so far as
Mr Doyle’s earning capacity is concerned [s.79(4)(d)].
·The wife disputes that her financial future is secure given that she is not currently working.
At the end of the third stage, the husband asserts that a proper consideration of the applicable section 75(2) factors, particularly the income of each of the parties and their respective physical and mental capacity to obtain appropriate employment, greatly favours him. In these circumstances, he asserts that he is entitled to a further sum equivalent to 20% of the parties’ pool of marital assets.
Ms Lynch has not specifically turned her mind to this issue. However, it would appear to be her position that she does not accept that there are any great disparities between her and Mr Doyle’s future prospects.
Finally in determining what order the court should make under section 79, the court must be satisfied that in all the circumstances, it is just and equitable to make the relevant orders. Overall, it is the justice and equity of the actual orders that the court must consider.[10]
[10] See Russell v Russell (1999) FamCA 187
The “overriding requirement” of section 79 is that considerations of justice and equity should inform each step of the process. The exercise I must undertake is not a “process of social engineering”[11] or of equalisation of assets or financial resources.
[11] See Waters & Jurek (1995) FLC 92-635
It is Mr Doyle’s position that, given what he would characterise as a lengthy relationship and marriage between the parties, not withstanding his lesser financial contributions, and overall consideration of the justice and equity of the situation demands that he should receive a sum equivalent to 40% of the parties’ marital assets, excluding
Ms Lynch’s entitlements to superannuation.
On the other hand, it is Ms Lynch’s position that the marriage between the parties was a short and unhappy one, during which she made the overwhelming financial contributions. As such, at best, she would assert that considerations of justice and equity should dictate that
Mr Doyle receive a sum equivalent to 15% of the parties’ assets.
Clearly, the parties have known one another since 1996. Since that time, they have interacted with each other. The central evidentiary issue for the court is what has been the nature of those interactions and whether, when considered in totality, they can be regarded as the basis of a de facto marital relationship which should have significance in the outcome of these proceedings.
In D v McA[12] Powell J observed that cases involving disputes as to whether or not a man and a women were living together, as husband and wife, on a bona fide domestic basis, were likely to involve the court having to make a “value judgment” about the relationship in question based on its consideration of a number of factors, which included the following:
[12] D v McA (1996) DFC 92-030 at page 75, 355
·The duration of the relationship;
·The nature and extent of common residence;
·Whether or not a sexual relationship existed;
·The degree of financial interdependence, and any arrangements for support, between or by the parties;
·The ownership, use and acquisition of property;
·The procreation of children;
·The care and support of children;
·The performance of household duties;
·The degree of mutual commitment and mutual support;
·Reputation and “public” aspects of the relationship.
Although for obvious reasons, the date of a marriage between the parties concerned provides an obvious point of demarcation, the actual length of the cohabitation between the parties concerned is relevant for assessing the respective nature of the various contributions made by them, during their relationship as a whole.[13]
[13] See Olliver & Olliver (1978) FLC 90-499 at page 77, 600
The Evidence and Necessary Findings of Fact
The wife was born [in] 1979. The husband was born [in] 1975. The parties met in early 1996, in [address omitted] Adelaide. They exchanged phone numbers and began seeing one another shortly afterwards.
The wife is from [K]. She had come to Adelaide to complete her secondary education. She rented a small flat for herself at Property L which she furnished with the assistance of her parents. Her source of income was Austudy.
At the time of the parties meeting, the husband was not in paid workforce. He received sickness benefits. He lived with friends at Property J.
Mr Doyle’s address record, with Centrelink, indicates that he provided Property L as his Centrelink address from 21 May 1996 onwards.[14]
Ms Lynch concedes that the parties were intimately involved at this time but she would not categorise the relationship as being tantamount to a marriage. She asserts that the parties frequently separated.
[14] See Exhibit C
I accept Ms Lynch’s evidence in this regard. It seems to me to be against the balance of probabilities that the parties were involved in a defacto relationship from 1996 onwards. In any event, neither party had any significant asset to speak of and neither was earning any significant sum of money.
In 1997, the parties lived together in a “share house” with others at Property C. This address does not appear on Ms Lynch’s Centrelink records[15] but does appear on Mr Doyle’s records. As the accuracy of Centrelink records depends on what is told to Centrelink by recipients of social security, I am dubious that these records are helpful in ascertaining precisely where either of the parties were living at relevant times.
[15] See Exhibit H
In 1997, Ms Lynch began her studies in [omitted] at TAFE. I also find that the parties began to live together in the same premises, which were located at Property R, from some time around mid 1997.
The parties did not open a joint bank account at this time. Indeed, it is the position that during the entire period in question, they have always maintained separate bank accounts. It also seems likely that Mr Doyle spent time away from the Property R property. It was in June of 1997 that Mr Doyle was charged with taking part in the production of a crop of cannabis at a property in [omitted]. However, he was not formerly convicted of this offence and was released with a fine.[16]
[16] See Exhibit D to the wife’s affidavit filed 5 November 2010
The parties shared the premises at Property R, with some consistency, between 1997 and 1999. Mr H, then the husband’s school age younger brother, recalls visiting the parties during school holidays and on weekends. His relocation is that the parties slept in the same bedroom.[17]
[17] See Affidavit of Mr H filed 13 October 2010 at paragraph 7
Ms Lynch acknowledges that Mr Doyle proposed marriage to her in May of 1998 and she accepted. To my mind, this confirms that the parties were involved in a close and intimate relationship in 1998. As such, it seems more likely to me than not that their relationship was founded on largely shared domestic circumstances.
It is also clear to me that the parties did not have any significant financial resources at this time. Ms Lynch purchased an engagement ring for herself for $499.00. She was not in a position to pay the full purchase price for the ring but arranged to pay it off in instalments through lay-by.[18]
[18] See Exhibit G to Ms Lynch Affidavit filed 5 November 2010
Ms Lynch asserts that the relationship between the parties came to an abrupt end in November of 1998 as a result of Mr Doyle violently assaulting her. In support of this assertion, Ms Lynch points to
Mr Doyle’s criminal record, which indicates that he was convicted of common assault and resist police in the Adelaide Magistrates Court around this time.
Ms Lynch did not give extensive details of this alleged assault in her affidavit material. In her sworn evidence, she indicated that the police were called to the Property R property and Mr Doyle was arrested. She alleges that she sustained injuries to her face, which bled. It is her evidence that the police took photographs of these injuries and an extensive statement from her.
Mr Doyle denies that the assault took place. During the course of the hearing, his solicitors issued a subpoena to the South Australian Police to provide documents in respect of his conviction in the Adelaide Magistrates Court in November of 1998. These documents reveal that Mr Doyle was charged with an assault on a person unrelated to him following an incident at [omitted] on 22 July 1998.
As a result of the controversy surrounding this issue, Ms Lynch issued her own subpoena to the South Australian Police on 8 August 2011. In response to this subpoena, records have been produced that indicate police were informed by a teacher at [omitted] High School in July of 1996 that Ms Lynch had allegedly been assaulted by Mr Doyle at her home at Property L. The police did not take any action in respect of this matter.
In my view, the absence of explicit documentary evidence supporting Ms Lynch’s claim of an assault in late 1998 considerably weakens her assertion that the relationship between the parties ended at this stage. In my view, there is a strong possibility that Ms Lynch has seized upon the entry in Mr Doyle’s police record to mistakenly support her assertion of an assault upon her person. I am concerned that she has confused the date of the considerably earlier incident in July of 1996, which occurred a few months after the parties had first met.
Mr Doyle’s evidence, supported by his parents, is that the relationship between him and Ms Lynch consolidated in 1999 and 2000.
Ms Lynch’s evidence is that she rarely saw Mr Doyle and dated other men in the period. The period is important, from both parties’ perspectives because it coincides with Ms Lynch’s advent into the paid workforce, which preceded the purchase of the Property M property in July of 2000.
In 1999, Ms Lynch deposes that she moved alone to private rental accommodation at Property B, [B]. This address is given as
Mr Doyle’s Centrelink address from 28 October 1999.[19] Mr H remembers visiting his brother and Ms Lynch at the property. In particular, he remembers celebrating the Millennium New Year’s Eve, with his brother, at [B].
[19] See Exhibit C
In addition, Ms H deposes that she regularly visited the parties at Property B, [B] and her understanding was that they shared a bedroom.[20] But, in any event regardless of this fact, it is clear that the parties did not proceed to marriage following Mr Doyle’s proposal to this effect in 1998. This tends to suggest some change in status in the relationship.
[20] See Affidavit of Ms H filed 13 October 2010 at paragraph 14
Ms H’s evidence does not fit with the evidence of the wife’s father,
Mr L, who deposes that his daughter lived alone at [B] in 1999. He asserts that he and his wife, Ms L, visited the wife often. Ms L also asserts that the wife lived at [B] alone. However, she describes
Ms Lynch’s relationship with Mr Doyle as “still very much a casual affair”.[21]
[21] See Affidavit of Ms L filed 5 November 2010 at paragraph 10
I am not persuaded that either Mr L or Ms L are in the best position to give evidence regarding the nature of the relationship between their daughter and Mr Doyle. Although it is probable that the relationship was not without its difficulties from time to time, it seems against the weight of evidence to suggest that it was entirely broken off in 1999/2000.
Ms Lynch deposes that she dated two other persons during this period. One was a gentleman by the name of [Mr B], whom she dated for a period of around 6 months in early 2000. Ms Lynch has not called him to give evidence. Ms L confirmed her knowledge of his existence but indicated that she had never met him and did not believe that he and the wife had ever lived together.
I did not disbelieve Ms L’s account of [Mr B] and accept that the wife was involved with another person around this period. But it also seems unlikely that she completely severed her relationship with the husband. This confirms my impression that the relationship between the parties waxed and waned from time to time.
It would also seem to be the case that Ms Lynch wished to maintain some element of financial independence from Mr Doyle. Certainly it is clear to me that the engagement between the two was broken off. It seems unlikely that they would have been engaged for a period approaching seven years.
Mr H, the husband’s step father has deposed that Ms Lynch was regarded by him and his wife as being a part of their family because she was Mr Doyle’s “long time de facto partner” from at the very least 1998 onwards. At this time he lent Ms Lynch a Toyota Corona motor vehicle which had come into his possession as a result of the death of a relative.
It is his position that the wife used the motor vehicle in question for a lengthy period of time throughout 1998 and 1999, which belies
Ms Lynch’s assertion that the relationship between her and Mr Doyle came to end in the latter part of 1998. In support of his evidence, Mr H has provided a membership form from the RAA which indicates
Ms Lynch was an associate member to his full membership from 13 July 1999 until 31 December 2000.
Mr H has deposed that he would not have leant the vehicle in question if Ms Lynch had not been involved in a de facto relationship with
Mr Doyle. The wife concedes she did have the use of the vehicle but only for a brief period of time, whilst her own vehicle was being repaired. In my view, this is not a determinative issue one way or the other.
The Property M property was purchased in July 2000. There is no doubt that the purchase was registered in Ms Lynch’s sole name. It is also the case that she alone made application to the Adelaide Bank for mortgage finance to complete the purchase.
On 9 August 2011, the husband’s solicitors subpoenaed all records relating to Ms Lynch held by the Adelaide Bank. This resulted in the production of Ms Lynch’s application to the bank for a home loan. On her application, Ms Lynch describes her marital status as “single” and indicates that there is one person in her household.
She also indicated on her loan application form that she had assets in the form of a motor vehicle worth $8,000 and cash, in the Commonwealth Bank in an amount of $8,000.
As documentary support of her application for the loan, Ms Lynch provided the Adelaide Bank with a recent payslip, which indicated she was receiving an annual salary of just over $28,000. She also provided her Commonwealth Bank statements from 9 March 1999 onwards, although on my perusal there are some statements missing.
There is no dispute that Ms Lynch started work at [W] at the beginning of January 1999. On 9 March 1999, the opening balance on her account with the CBA is $127.43. On 10 March 1999, $758.00 is deposited into the account, being Ms Lynch’s salary from [W]. Thereafter, the bank account shows regular similar deposits.
On 6 June 2000, the balance showing is $7,816.37. As well as regular deposits of salary, the statements show regular withdrawals of cash at ATM’s and the debiting of the account at supermarkets and other retail establishments. The trajectory of the account however is gradually upwards.
Also within the documents subpoenaed from the Adelaide Bank is
Ms Lynch’s application to the South Australian government for a first home owner’s grant. She, in answer to the question “do you have a spouse” has ticked a box designated as “No”.
The purchase price of the Property M property was $125,000.00. Of this sum, $118,500.00 was borrowed from the Adelaide Bank. Ms Lynch’s monthly repayments on this sum were calculated to be $867. This level of repayment represented just under forty percent of Ms Lynch’s gross salary at the time. It was a rate of repayment which was capable of being sustained by her alone.
The husband deposes that he was integral to the selection of the Property M property as the parties’ joint home. In this regard he is supported by his mother, who deposes as follows:
“In early 2000, the [sic] [Mr Doyle] told me that the he [sic] and the Respondent wanted to buy a house, because they were ‘sick’ of renting. He told me that they had been working hard to save and he and the Respondent had managed to save approximately $10,000.00 since she began her job by using their joint incomes to save a deposit whilst renting. They told me that they had pooled their incomes.”[22]
[22] See affidavit of Ms H filed 13 October 2010 at paragraph 26
I accept that the parties were in contact with one another in the lead up to the purchase of the property. It is also probable that Mr Doyle and Ms H attended inspections of the property prior to its purchase and that their views as to the suitability of the property were sought by
Ms Lynch.
However, in my view, the evidence is more in favour of Ms Lynch’s assertion that the property was purchased solely by her for her occupation and utilisation. In my view, this is the clear import of the documents which she completed to obtain mortgage finance. More importantly, in my view, the evidence establishes that it was solely attributable to her efforts that the seed capital of around $8,000.00, which was required to secure the mortgage loan, was achieved.
In my assessment, Ms Lynch is both a determined and frugal person. It does not seem to me to be at all improbable that, notwithstanding her modest income, she would be able to save a sum in the vicinity of $8,000.00 in the period of around eighteen months.
The husband places reliance on records produced by Telstra in respect of the wife’s telephone account at Property M. These records have been analysed by Mr H for the years 2000 to 2005.[23] They show that someone was consistently telephoning Ms Lynch’s work number as well as Mr Doyle’s parents home, from mid 2000 onwards, from the telephone registered in Ms Lynch’s name.
[23] See exhibit E & G
It is Mr Doyle’s assertion that the only person who can have been making these calls is he and this evidence of the existence of a defacto relationship between him and Ms Lynch both before and after the purchase of the Property M property.
Ms Lynch is not in a position to dispute the telephone records. She says that she studied, at home, from time to time and telephoned her workplace as a result. She remained in contact with both the applicant and his sister.
The telephone records are significant. On balance, it seems more probable than not that the parties retained some form of intimate relationship following Ms Lynch’s purchase of the Property M property. However, it is difficult to assess the exact nature of the relationship from the telephone records alone. Consideration must be given to other aspects of the evidence to determine whether the relationship between the two parties was the fully committed one, which is advanced by Mr Doyle.
Mr Doyle asserts that he undertook significant improvement works at the Property M property, such as painting and gardening. He also asserts that Mr H and he did cabinetry work in the kitchen of the property so that an oven could be fitted. Importantly, Mr Doyle asserts that he did all the cooking and cleaning at the home, whilst Ms Lynch worked.
It is Ms Lynch’s evidence that she was seeing other people around this time, a situation supported by both her mother and sister, [name omitted]. However, Ms Lynch has not chosen to call any of these boyfriends to support her assertion in this regard. Notwithstanding this fact, given the correlation between the evidence of Ms Lynch and her mother about the physical description of one of Ms Lynch’s boyfriends, I do not consider that this evidence is a recent fabrication.
In support of his case, Mr Doyle has produced a photograph of himself in the Property M property kitchen cooking on a portable griller. The photograph is 24 March 2001.[24] Ms Lynch does not dispute that she was in contact with Mr Doyle in this period. It is her case that the relationship was more casual than Mr Doyle would have it.
[24] See exhibit A
In support of Ms Lynch’s case she points to the fact that she agreed to purchase a car from Mr Doyle for around $12,000.00 in late 2001. She has produced documentary evidence, which indicates she extended her loan by this amount in November of 2001. It is her case that she agreed to the purchase to help Mr Doyle from some financial difficulties.
It seems to me unlikely that, if the parties had been in a marriage type relationship, Ms Lynch would have purchased the vehicle in this formal way. More importantly, so far as Centrelink were concerned, the parties lived distinct and separate lives. Mr Doyle concedes that he was claiming the disability support pension at a single rate.
It is also common ground between the parties that it was not until after the parties had married, in January of 2006, that Ms Lynch became the formal nominee for Mr Doyle with Centrelink.[25] To my mind this is a significant factor. It points more in favour of the parties having some degree of separation in their financial affairs.
[25] See exhibit G to the wife’s affidavit filed 20 June 2011
In addition, in March of 2003 when Mr Doyle was the victim of an assault and robbery at a hotel in Adelaide. When making a statement to the police, he provided as his home address Property B, [B].[26] Incidentally, so far as the Centrelink records are concerned, this address in [B] was also Mr Doyle’s address.[27] It was not until April 2003 that Mr Doyle provided the Property M property as his home address to Centrelink.
[26] Ibid at exhibit F
[27] Ibid a exhibit C
It is Mr Doyle’s evidence that from 2000 onwards, at the Property M property he and Ms Lynch began breeding [omitted] dogs together. He asserts that the parties’ dogs had their first litter in 2001. On the other hand, it is Ms Lynch’s evidence that the husband did not move the dogs to the Property M property until after the parties were married. This state of affairs is confirmed by dog registration records from the City of [omitted].[28]
[28] See annexure B to the wife’s affidavit filed 16 August 2011
It is however common ground between the parties that Mr Doyle utilised the Property M property to grow a hydroponic crop of marijuana, which was detected by police in mid-2002. This led to both parties being charged to offences in relation to cannabis. One of the factors which led the police to the parties was an extraordinarily high electricity use for the period relating to the middle of 2002.
It is Ms Lynch’s evidence that she had nothing directly to do with the enterprise, which was the idea of Mr Doyle, who prevailed upon her to allow him to move the plants into a room of her house for a short period of time prior to detection. This seems improbable to me.
I accept that the marijuana enterprise was likely to be Mr Doyle’s idea and he was primarily responsible for it. However, the fact that he prevailed upon Ms Lynch to be involved with it indicates that the two had some form of relationship together. Ms Lynch was prepared to take a significant degree of risk with Mr Doyle.
On balance, it seems to me to be likely that by mid-2002 the parties were involved significantly together. However, it also seems to me that they fell short of a complete integration of their financial arrangements. It also seems to me not improbable that, given his lifestyle, which was not marked by stability, Mr Doyle lived his own life, separate from
Ms Lynch, from time to time. In this sense, the parties’ relationship does not appear to me to be a completely conventional one.
All in all, I do not think that either party’s account of their relationship between mid-2000 and the date of their marriage is completely satisfactory. Ms Lynch is intent on reducing the level of intimacy between her and Mr Doyle, whilst he is intent on exaggerating the level of his contributions to what was, in my view, a casual relationship for significant periods of time.
However, I am satisfied that from 2002 onwards, the relationship became more and more committed. Ms Lynch concedes that in 2003 she and Mr Doyle determined that they would be committed to one another and this led to their plans to marry in late 2005. This commitment led to Mr Doyle making significant changes to his lifestyle, the most significant of which was him starting employment, as a [omitted], from late November 2004.
In November of 2004, the husband purchased a Buell motorcycle for the sum of $16,785.00. The funds came from Ms Lynch and arrangements were made for Mr Doyle to repay her in regular instalments.
This coincided with the husband gaining casual employment as a [omitted]. Statements obtained in respect of Ms Lynch’s home loan account that payments were credited to this account and described as Loan [Mr Doyle] from December 2004 onwards. The amounts paid vary and range from $100.00 to $500.00 but are more often than not to the higher end of this range.
Between July 2005 and June of 2006, Mr Doyle earned approximately $16,000.00 gross through his employment as a [omitted].[29] It seems probable that a significant proportion of these earnings were utilised in paying for the motorcycle, which Mr Doyle retains. Certainly, it is
Ms Lynch’s evidence that she continued to be responsible for the majority of expenses in respect of the Property M property.
[29] See annexure N to the wife’s affidavit filed 5 November 2010
Some of the monies paid by Mr Doyle were no doubt attributed in
Ms Lynch’s mind to the motor cycle. But on balance it seems more likely than not that the husband also contributed directly to the payment of the mortgage on the Property M property.
Ms Lynch was the person who was primarily in charge of the couple’s finances, from the time they began to live together. She brought in by far the larger income. She continued to regard the Property M property as hers exclusively.
Accordingly she maintained responsibility for paying all the outgoing arising from the property. Mr Doyle asserts that the electricity bill was in joint names, so that the parties could utilise his entitlement to a discount because of his receipt of social security.[30]
[30] See husband’s affidavit filed 12 October 2010 at paragraph 74
After Mr Doyle left the paid workforce, he asserts that Ms Lynch dictated to him how his Centrelink payments were to be utilised. Essentially it his position that his entitlements were used to cover everyday costs of living, whilst Ms Lynch’s income was used to pay the mortgage and other outgoings.
I accept that Mr Doyle contributed his social security entitlements towards joint matrimonial expenses but necessarily his income was less than the wife’s was. I also accept that it was a joint decision to purchase the Buell motorcycle, although it was intended to be for
Mr Doyle’s primary use.
The husband was suspended from driving on 9 May 2006 in respect of being apprehended and charged with failing to provide a breath sample. Thereafter it seems to be the case that he was not in regular paid employment until the parties finally separated in March of 2009.
Ms Lynch is critical of Mr Doyle for losing his licence in this way. It is her position that he abused alcohol during their relationship and this impliedly constituted a negative contribution on his part.
Although much of Mr Doyle’s income did go on joint expenses, I think it unlikely that he had access to no discretionary spending whatsoever. It seems to me to be probable that he utilised a reasonable proportion of his income as he saw fit. This was a source of discontent from
Ms Lynch’s point of view, who regarded Mr Doyle as somewhat prodigal with money.
It is Mr Doyle’s evidence that Ms Lynch was annoyed when he lost one of his [omitted] jobs at [W], as a result of the drink driving incident. It is also his evidence that it was decided mutually by the parties thereafter that it was better that he refrain from being part of the formal workforce because of the emotional stresses this occasioned for him, as this had been one of the factors leading up to him drinking unwisely. This seems to me to be unlikely.
It is Ms Lynch’s position that the parties handled their finances separately during their relationship.[31] Certainly they had separate bank accounts, which was clearly Ms Lynch’s preference. However it is simplistic to assert that they did not combine their resources to some degree.
[31] See wife’s affidavit filed 13 October 2009 at paragraph 18
I have however no doubt that their marriage was a bona fide one, to which both were initially committed. There can be no other rationale for the parties deciding to embark upon a process of IVF together in the hope they could conceive a child.
Ms Lynch continued in her employment until April of 2008, although she was on work cover payments for over twelve months prior to this date. Accordingly, it is my finding that during the parties’ financial and marital relationship with one another, the wife made by far the superior contributions.
Throughout the relevant periods of the parties’ relationship with one another she earned the following sum in each financial year ending 30 June: $29,407.00 (2003); $32,906.00 (2004); $35,469.00 (2005); $35,469.00 (2006); $37,742.00 (2007); $44,214.00 (2008); $37,742 (2009); $37,194.00 (2009).
The parties have vehemently different views as to who of them performed the large proportion of household tasks and domestic duties during their relationship and subsequent marriage. The wife asserts that the husband “cooked occasionally” but she did most of the cooking, cleaning, laundry and shopping.[32]
[32] See wife’s affidavit filed 13 October 2009 at paragraph 15
Mr Doyle’s position is that he did not “most of the household duties during the course” of the parties’ relationship and was frequently commended for his proficiency in this regard.[33] Controversies of this kind are common in vehemently contested property proceedings, such as these, where each party has much at stake and much motivation to discredit the other.
[33] See husband’s affidavit filed 12 October 2010 at paragraph 63-64
In addition, it is frequently the case the court has no access to independent sources of evidence to use to assess the veracity of the competing claims of the parties concerned. So it is in this case. I do not regard Ms H as likely to be a dispassionate witness in respect of this issue. Certainly I think it unlikely that Mr Doyle was a model homemaker during the parties’ relationship.
On balance, it seems more likely that neither was remarkably punctilious in respect of domestic duties and that both contributed to them from time to time. Theirs was not a large domestic establishment. It seems to me that the parties lived modestly and their household responsibilities were not onerous.
The husband’s position is that through his efforts the Property M property was significantly increased in value. He has deposed that he installed a new stove and dishwasher in the kitchen; installed new fittings in the bathroom; installed floating floors throughout the property; concreted an entertainment area in the backyard; erected an above ground swimming pool; installed a roller door on the garage; and painted the exterior of the house.[34]
[34] See husband’s affidavit filed 12 October 2010 at paragraph 61
The wife’s position is that the property has not undergone any extensive renovations and the kitchen and bathroom remain in the same condition as when she purchased the property in 2000.[35] It is also her position that she engaged some contractor to improve the backyard by the erection of a pergola in 2002, which was prior to the time the parties were in a committed relationship.
[35] See wife’s affidavit filed 13 October 2009 at paragraph 14
The husband asserts that members of his family, principally his step-father Mr H assisted with this work. Mr H confirms the concreting and some cabinetry work. There is no evidence to indicate what have been the implications of these works, so far as the value of the Property M property is concerned.
The property has appreciated significantly since Ms Lynch purchased it but it has been in her possession for over a decade and this period has coincided with a time of increasing property values. I accept that
Mr Doyle did work at the Property M property, but I am unable to categorise these contributions to any significant degree. They do not appear to have added significantly to the value of the property or to be extraordinary in nature. I would categorise them as being run-of-the mill.
There is no dispute between the parties that the date of their final separation is early 2009. At that stage Mr Doyle left the Property M property. Ms Lynch has been responsible for all mortgage payments and outgoings in respect of the property since. At the time she was in receipt of Workcover payments. She continued to receive these payments until late 2009, when they were discontinued.
There is significant controversy between the parties as to how the contents of the Property M property were divided between them on separation. It is the husband’s position that the wife retained the majority of the parties’ electrical goods and furniture, leaving him with a few outmoded goods, which he was forced to sell at Cash Convertors for modest sums.
In contrast the wife asserts that the husband took items of furniture and other property of a significant value, leaving her with “scarce furnishings and a large expense for replacement”.[36] I acknowledge that this is a significant bone of contention for each of the parties, but in the absence of definitive evidence regarding the value of the items of property in question, this is not an issue which can be influential in the outcome of these proceedings. I suspect both parties feel hard done by at the end of their marriage.
[36] See wife’s affidavit filed 5 November 2010 at paragraph 36
Mr Doyle has not been formally employed since the parties finally separated. He has been living with his parents, whilst receiving the disability support pension. I accept this arrangement has not been his preference. He would like to be able to have a home of his own, independent of his parents.
Ms Lynch commenced employment with a firm [omitted] in August of 2010. This firm subsequently became known as [omitted]. Ms Lynch’s salary was $39,000.00 gross per annum. Ms Lynch left this firm’s employ in July of 2011, as a result of being bullied. She has contacted her union and is contesting the circumstances surrounding the situation. She does not wish to return to this employment.
A difficult aspect of the case is to determine what amount was owing on the mortgage on the Property M property at the date of the parties’ separation. No definitive documentary evidence has been provided in respect of the issue. The wife asserts that the sum outstanding was $38,057.43.[37] However that figure comes from a bank statement dated December 2008. The husband asserts that the relevant figure is significantly less.
[37] See wife’s affidavit filed 5 November 2010 at paragraph 35
In her case, Ms Lynch tendered a letter from the relevant mortgagee, the Bendigo Bank which indicated that as at 26 July 2011, the amount owing on the mortgage was $33,258.64.[38] I am satisfied that the tender of this document was disingenuous on Ms Lynch’s part, who sees advantages to herself in minimising her equity in the property.
[38] See Exhibit I
The husband’s solicitors issued subpoenae to the wife’s bank, directing it to supply copies of records in respect of her various accounts. These records indicate that, as at June of 2010, the mortgage balance had been reduced to $20,459.00 and by July of 2011 to $3,258.00.
These figures confirm my view that the wife has a great facility to live frugally and apply her means to reducing her debt levels, even when her own financial circumstances are not particularly secure. She was able to almost completely discharge the mortgage in the period following the parties’ separation. She did this without any assistance from the husband.
However the wife did not voluntarily reveal the circumstances surrounding the current level of the mortgage, which was broadly consistent with the amount outstanding at separation. The relevant bank statement indicates that on 26 July 2011, the date on which she obtained the evidence on which she sought to rely to prove the current mortgage balance, she withdrew the sum of $30,000.00 from the mortgage.
Her evidence, which is supported by other subpoenaed documents, is that she credited this sum against her credit card. She deposed that, as she was recently unemployed, she planned to use her credit card to pay her on-going living expenses until such time as she returned to the workforce. From the husband’s standpoint, he can see no other purpose to the transaction other than to deceive both him and the court.
The wife’s lack of candour in respect of the issue does her no credit but I am unable to see the same sinister overtones in the transaction as the husband. The wife was entitled to do as she did. On any view, it was as a result of her efforts alone that the mortgage had been so substantially reduced. I accept that she was in need of immediate sums for self support and crediting her credit card was her chosen way of supplying these needs.
Accordingly, in the period post separation, the wife has made significant financial contributions towards the preservation of the Property M property. Part of these contributions must be accounted as the almost complete discharge of the relevant mortgage on the property. However the recent withdrawal from the mortgage must be brought into account before these contributions are credited at the second stage of the court’s deliberations.
Step 1 – the pool of assets
There is no dispute that the wife holds modest superannuation worth $29,633.00. The husband’s superannuation is negligible, being only $700.00. Given neither party seeks any specific orders in respect of this superannuation, it is appropriate that it be placed in a separate pool.
The parties’ most significant asset, by far, in dollar terms, is the Property M property. It is agreed that this property is worth $340,000.00. The parties’ dispute how the current mortgage balance secured against the property should be called into account.
In my view, the property should go into the pool of assets unencumbered. In my view, the moneys withdrawn from the mortgage by the wife, in July of 2011, should be notionally “added back” into the parties’ pool of assets, as a premature distribution of property, in the wife’s favour.[39]
[39] See In the Marriage of Townsend (1994) 18FamLR 505 & AJO v GRO (2005) 33 FamLR 134 at 144
However, the fact that the wife substantially reduced the mortgage balance, in the period between separation and her withdrawal of $30,000.00 is a factor which considerations of justice and equity require to be taken into account at the second step of the process.
For reasons already provided, it is not possible to formally take into account various items of personal property, which each party has retained following the end of their relationship. However, each party owns a motor vehicle, in the wife’s case a Holden Commodore and in the husband’s case a Buell motorcycle. The parties have agreed that the Red Book values for these vehicles should be adopted in these proceedings.
In my view, it is not necessary to bring any of the other minor debts of the parties into account at this stage, particularly given the period which has elapsed since they separated. In this period, each party has had to incur necessary living expenses.
For all these reasons the parties pool of matrimonial assets is calculated as follows:
Assets
$
Property M
340,000.00
Holden Commodore motor vehicle (wife)
13,000.00
Buell motorcycle (husband)
6,000.00
Total
359,000.00
Superannuation
Wife’s superannuation
29,633.00
Husband’s superannuation
701.00
Total superannuation
30,334.00
Step Two – assessment of contributions – section 79(4)(a) – (c)
I now turn to the second of the steps in the exercise under section 79, namely an assessment of the parties’ contributions within the context of section 79(4)(a) to (c). These provisions are as follows:
“Section 79(4) In considering what order (if any) should be made under this section in proceedings with respect to any property of the parties to a marriage or either of them, the court shall take into account –
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or 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 marriage or either of them;
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or 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 marriage or either of them;
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of home maker or parent.”
Section 79(4) requires that the court look at the entirety of the contributions, both financial and non-financial, to the welfare of the family, as well as to the acquisition, conservation and improvement of those assets. Contributions are not required to be tied to the acquisition, conservation and improvement of any particular asset and maybe taken into account generally as contributions in a total sense.
The task required of me pursuant to section 79(4) of the Family Law Act thus is to weigh and assess the disparate contributions of the parties to arrive at an outcome, which is both appropriate and just and equitable in all the circumstances. Contributions, which are different in quality and nature, must be compared. The exercise is not purely an arithmetical or accounting one.
As I have found it, the period during which the parties have been involved with one another, on a bona fide domestic basis, living together as husband and wife, is a period of approximately seven years. As such, the relationship cannot be regarded as one of significant length but nor can it be regarded as a short marriage. Necessarily, the marriage has had significant implications for both Mr Doyle and
Ms Lynch.
On the basis of my assessment of the evidence, I have found that the wife’s purchase of the Property M property was her enterprise alone and accordingly she brought this property into the parties’ relationship and subsequent marriage. I have found her to be a person of some thrift, who is capable of exercising a high level of fiscal discipline.
Ms Lynch was able to save the deposit for the property as a result of her personal attributes for thrift and through her employment at [W]. Although at the time a modest income earner, Ms Lynch was anxious to get into the property market as soon as possible. No doubt, she saw property ownership as the key to her future financial security.
In this regard, the wife’s expectations have not been misplaced. The property has almost tripled in value in the decade or so during which Ms Lynch has owned it. In addition, during this period, she has been able to discharge the mortgage secured against the property. Accordingly, the purchase of Property M has proven to be a very good investment for Ms Lynch, particularly given her modest income circumstances.
The Property M property is by far the most significant item of property available to be divided between the parties. In my view, the wife’s initial contribution of the property, albeit that she brought the property into the parties relationship substantially encumbered, is one of such moment when the parties various other contributions are considered, such as to merit “special recognition” in the court’s deliberations at this stage of the proceedings.[40]
[40] See Pierce & Pierce (1999) FLC92-844 at 85,811
However, whilst recognising this special element on the wife’s case, it is also important to note that the most significant reason the property has increased in value is because of appreciation in the property market generally. Given the nature and the period of the parties’ relationship together, it would be contrary to principles of both logic and equity to assert that she alone is entitled to the benefits of this appreciation.
It is however incontrovertibly the case that the wife’s direct financial contributions, during the relationship and subsequent marriage, were significantly greater than those of the husband. She was in receipt of income during this period. On the other hand, the husband only had a fairly brief period of employment, which produced at the most around $16,000.00.
It is the husband’s case that he contributed his social security entitlements towards the parties’ joint marital expenses. The evidence is clear that it was only in early 2006, as a result of the intervention of Ms Lynch, Mr Doyle informed Centrelink of his relationship status. Prior to that time, he was claiming a disability pension based on the single rate, to which he was not entitled.
The intention of social security is to provide income support to individuals who are unable to fully support themselves financially because of unemployment, sickness or infirmity. Necessarily social security allowances are not calculated to produce a surplus of income over expenditure for the recipient concerned in such circumstances. The level of social security provided is carefully calibrated.
In these circumstances, in my assessment, Mr Doyle’s direct monetary contributions to the parties’ mutual greater good must have been modest and may indeed only be attributable to his irregular and potentially illegally claimed, so far as Centrelink was concerned. Accordingly, I do not think this element of his contribution can be regarded as being significant.
Each party asserts that he or she has made the superior homemaking contributions during the operative period of their relationship. As previously indicated, there is no evidence to indicate that the parties lived in anything other than conventional circumstances. The wife was the family’s primary breadwinner.
In such circumstances, it would seem natural that Mr Doyle would perform at least some of the routine household tasks. However, I think it unlikely that all of these naturally devolved onto his shoulders. In my assessment both parties are likely to have performed homemaking duties.
The husband also asserts that he, in tandem with Mr H, also provided significant non-financial contributions, in the form of the improvements which he undertook to the Property M property. I accept that Mr Doyle performed some significant renovations at the property. I take these contributions into account but note that it is not possible for me to attribute a direct dollar value to them.
Finally, in the period post separation, the wife has made significant direct financial contributions. These contributions have resulted in the Property M property being mortgage free for the purposes of these proceedings. This mortgage free status was achieved in a little over two and a half years and confirms my view that Ms Lynch was the major financial force in the parties’ relationship and it is largely to her efforts that the parties have their current asset backing.
At the end of the second step of the process of assessing the parties various contributions towards the acquisition, conservation and improvement of their various non-superannuation assets, I assess the parties’ respective contributions as being 82/18 percent in favour of the wife. As Mr Doyle does not seek any specific order in respect of the wife’s superannuation assets, I do not propose to make any specific assessment in respect of the parties’ various contributions towards their respective superannuation holdings.
Step three – section 75(2) factors – the prospective needs of the parties
I am now required to consider the various matters set out in section 75(2) and in particular to consider whether any further adjustment should be made in favour of either party. The section 75(2) factors are as follows:
(a) the age and state of health of each of the parties;
(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;
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
(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;
(e) the responsibilities of either party to support any other person;
(f) subject to subsection (3) 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;
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
(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 adequate income;
(ha)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;
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
(l)the need to protect a party who wishes to continue that party’s role as a parent;
(m)if either party is cohabiting with another person – the financial circumstances relating to the cohabitation;
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party;
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties.
The parties are both in their thirties. Neither appears to enjoy robust emotional or psychological health. Otherwise each enjoys good health. They are likely to have many years of life before them.
Neither party comes to the case without issues arising in respect of their capacity for gainful employment. In particular, the husband has been in receipt of a disability support pension for many years. His brief period of employment, which coincided with the parties’ marriage, was terminated because he found it difficult to cope with the pressures of regular work.
Although no expert medical or psychological evidence has been provided to me, I accept that the husband’s state of psychological health precludes him from obtaining gainful employment. This state of affairs is likely to prevail for the foreseeable future. It is a significant factor which militates in favour of the husband.
The wife has qualifications in [omitted]. She was employed at [W] for a significant period of time but left this employment under difficult circumstances, allegedly as a result of being the victim of bullying, which led her to bring Workcover proceedings against her former employer.
More recently again, she has been employed by [business omitted] but again has left this employment because of alleged difficulties in her workplace. She is currently unemployed. Accordingly, at the present time, in my assessment, there are some question marks surrounding her ongoing employability.
I do not accept that the wife has manufactured her current employment situation in order to enhance her position in these proceedings. However, her qualifications and previous work history are infinitely superior to those of the husband. I would also anticipate that, with the conclusion of these proceedings, she will find herself more emotionally robust and so more able to turn her attention to securing a fresh position for herself.
However, although Ms Lynch is likely to be able to return to the workforce in the future, she will remain a modest income earner. Over the past few years, her highest level of income has been $44,200.00 in the financial year ending 30 June 2007. Otherwise, her income has been in the mid-to high $30,000 range.
However, notwithstanding her modest salary prospects, the fact remains Ms Lynch does have qualifications and is likely to be able to obtain appropriate gainful employment for herself. The most significant “asset”, which a party can take out of a marriage, is a reliable income earning capacity.[41]
[41] See Clauson & Clauson (1995) FLC92-598 at 81,911
In this case, I am satisfied that the wife has such a capacity, albeit in a modest compass, but the husband has not. This is the most significant consideration at this stage of the proceedings.
During their marriage, the parties seem to have enjoyed a modest but comfortable lifestyle. The husband was able to pursue his interests in motorcycle riding and music. With the end of the relationship between the parties, he has been compelled to return to living in his parents’ home. Accordingly, his standard of living has become more constrained, whilst in broad terms, the wife has been able to enjoy a similar standard of living independently.
One of the sad consequences of the end of a marriage between most spouses is an inevitable reduction in the standard of living for them both. It is trite, but true nonetheless, that two households cannot live as cheaply as one. What is important, in my view, in respect of considerations arising under section 75(2)(g) is that any drop in standard of living should not be borne disproportionately by one party.
At this stage, it is my assessment that Mr Doyle has suffered a more pronounced deterioration in his standard of living than has Ms Lynch. Given his level of disability and lack of qualifications, it will be far more difficult for him to recover from the deleterious financial consequences of the end of the marriage between the parties.
As I indicated earlier, Ms Lynch places great store in the security accorded to a person who is in possession of “bricks and mortar”. This is a characteristic which she shares with many others in Australian society. Regardless of the outcome of these proceedings, it seems probable that Ms Lynch will be able to remain in the property market.
The situation, so far as the ownership of accommodation, is far more problematic for Mr Doyle, who is looking at either remaining with his parents indefinitely or moving into rental accommodation. The former option is likely to be unpalatable to him in the longer term. In my view, considerations of this kind favour Mr Doyle, at this stage of the court’s deliberations.
At the present time, given their respective ages, neither party has any pressing need to consider retirement or issues relevant to financial security in old age. The wife has some modest amounts of superannuation but importantly has the prospect of adding to her store, when she returns to the workforce, as a result of the compulsory superannuation scheme.
The husband has no superannuation and little prospect of obtaining any. The reality is that he will be in receipt of some form or other of social security for the remainder of his life. He will remain in the most disadvantaged segment of the Australian populace, in economic terms.
I do not believe that the division of the parties’ matrimonial property, which will follow from the orders made by the court, will effect the earning capacity of either the husband or the wife [section 79(4)(d)].
In this regard, there is significant substance to the wife’s submission that the relationship and marriage between the parties have been immaterial so far as the husband’s financial circumstances are concerned, as he entered the marriage with no assets and in receipt of a disability pension and leaves the marriage largely in the same state. I take these matters into account.
At the end of the third stage, after having considered the various factors arising, I have come to the conclusion that there should be a further distribution of non-superannuation property, in the husband’s favour, equivalent to twelve percent of the non-superannuation pool.
Step 4 – Section 79(2) – Is this a just and equitable outcome
The final step in determining property proceedings is to stand back and consider whether the proposed result represents a just and equitable outcome. Considerations of justice and equity must inform each step of the court’s process and the overall result.
It is all very well to talk in percentage terms, so far as property orders are concerned, but at the end of the day what matters to the parties is what the orders mean in dollars and cents and what effect they will have on their respective long term aspirations and living standards.
The hardest cases are often those where the assets pools are modest but the needs of the parties are great. This is one such case. The husband, although a young person has no capacity to earn an income. On the other hand, the wife, at best a modest income earner has struggled to establish herself in the property market and fears loosing her foothold there. As such, in order to accord justice and equity to each of the parties concerned, the court has little margin for error.
A sum representing thirty percent of the non-superannuation assets of the parties is $107,700.00. From both parties’ points of view, it is a significant sum of money.
From the husband’s point of view, I would anticipate that a sum of money of this magnitude will provide him with some protection from some of the more serious vicissitudes, which may arise in his life. Although he has a limited capacity to service a mortgage, such a sum may enable him to purchase some form of accommodation for himself. This will add to his future security.
From the wife’s point of view, she may struggle to raise the sum, given she is not presently working and has an existing mortgage liability of around $30,000.00. Accordingly, her aspiration to remain a property owner may be placed in jeopardy. Considerations of this type intensify my view that this is a case where there is very little room to manoeuvre.
Ms Lynch has steadfastly defended the husband’s claim for property settlement against her. It has remained her position that Mr Doyle has no claim whatsoever on the Property M property. I have found that there was a committed relationship between the parties of around seven years in duration. During this period, the parties planned to have a child together. As such, I accept that the relationship between the parties was a committed one and one of significant duration.
As such, I am satisfied that considerations of justice and equity dictate that Mr Doyle should receive a significant proportion of the assets available for distribution between the parties, particularly given that his future lot in life is one marked by a significant level of financial security.
However, on the other hand, it is only as a result of Ms Lynch’s efforts and significant frugality that there is any significant sum available to be divided between the parties. As such, in my view, considerations of justice and equity dictate that she should retain the preponderance of the parties’ non-superannuation assets.
In this case, neither party has placed any great emphasis on issues relating to superannuation. Given the ages of the parties concerned, I can understand why this would be so. The wife is significantly better prepared for retirement than the husband. It is also the case that, as a result of her prolonged employment, she has garnered her current modest levels of superannuation. In my view, it is appropriate that she should retain those moneys.
The husband has in his possession, in the form of the Buell motorcycle, property to the value of $6,000.00. In those circumstances, I propose that the wife should pay him the sum of $100,000.00, within sixty days of the date of these orders, in order to satisfy Mr Doyle’s claim for property settlement but that otherwise the parties’ should each retain the items of property, including superannuation, currently in their respective possession or control.
If the wife is unable to satisfy this order, it will be necessary for the Property M property to be sold in order to give effect to the division of property, which I propose.
Bearing in mind the totality of the evidence and the various legislative provisions applicable, I am satisfied that the outcome, which I propose, represents a just and equitable one.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and twenty-one (221) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 5 December 2011
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