DRYSDALE & DRYSDALE
[2014] FCCA 3094
•19 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DRYSDALE & DRYSDALE | [2014] FCCA 3094 |
| Catchwords: FAMILY LAW – Very long marriage – Husband contended marriage ended much earlier than Wife – part of Husband’s case was that the marital relationship had ended when (he says) the Wife deceived him in relation to a physical deformity of the Wife, which the Husband said had he known of it he would not have married her, yet the Husband continued to have children with the Wife – relevant to Court’s objective determination of the length of the relationship – consideration of Husband’s conduct during the marriage regarding the couple remaining “married” and whether he is able to resile from that publicly represented conduct – relevance of both parties but particularly the Husband not providing relevant evidence from new partner. |
| Legislation: Evidence Act 1995, s.131 |
| Bevan v Bevan (2013) 279 FLR 1 K.R. Handley, Estoppel by Conduct and Representation (Sydney: Thomson – Sweet & Maxwell, 2006) | ||
| Applicant: | MR DRYSDALE | |
| Respondent: | MS DRYSDALE |
| File Number: | CAC 1711 of 2012 |
| Judgment of: | Judge Neville |
| Hearing dates: | 8 – 9 December 2014 |
| Date of Last Submission: | 9 December 2014 |
| Delivered at: | Canberra |
| Oral Reasons Delivered on: | 19 December 2014 |
| Written Reasons provided on: | 6 February 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Self represented |
| Counsel for the Respondent: | Mr G Howard |
| Solicitors for the Respondent: | Phelps Reid Lawyers, Canberra |
ORDERS (Amended Pursuant to the Slip Rule):
On or before 60 days from making these Orders, that the Husband do all such acts and things and sign all such documents as may be required to transfer to the Wife at the expense of the Husband all of his right title and interest in the property situate at and known as Property N in the State of New South Wales being the whole of the land more particularly described in Certificate of Title Folio (omitted) (hereinafter referred to as “the Property N”).
Contemporaneously with the Husband’s compliance with Order 1, that the Wife pay to the Husband a sum of equal to one half of the net asset pool (adjusted on the basis that each party retain assets in their name and the Wife retain the proceeds of sale of the Property N.
The Husband is hereby declared to be the beneficial owner of the property situate at and known as Property W, in the State of Queensland being the whole of the land more particularly described as Lot (omitted), Survey Plan (omitted), Title Reference (omitted) (hereinafter referred to as “the Property W”) and the Wife is hereby declared to have no estate or interest either at law or in equity in the Property W.
As of the date of these Orders the following will apply:
(a)The Wife have the sole right to occupy the Property N;
(b)The Wife pay all rates, taxes and outgoings of the Property N as they fall due and indemnify the Husband and keep him indemnified with respect to those rates, taxes and outgoings;
(c)The Husband have the sole right to occupy the Property W; and
(d)The Husband pay all rates, taxes and outgoings of the Property W as they fall due and indemnify the Wife and keep her indemnified with respect to those rates, taxes and outgoings.
The Wife shall retain all assets and resources which she now has whatsoever and howsoever acquired (including prospective property), and the Husband shall not have a claim against the Wife with respect to property obtained by the Wife including but without limiting the effect hereof the Wife shall retain for her sole use and benefit absolutely:
(a)Any money to the credit of the Wife in any savings or other account;
(b)The Wife’s prospective entitlements arising out of her employment including but not limited to;
(i)Her long service leave with (employer omitted);
(ii)Her annual leave with (employer omitted);
(iii)Her prospective superannuation entitlements with the (omitted) Superannuation (subject to the splitting order set out in Orders 11 and 12);
(iv)Any shares held in the Wife’s name;
(v)Any motor vehicle registered in the Wife’s name;
(vi)The furniture, furnishings and personality/other articles of domestic use or ornament located at the Property N;
(vii)
The (omitted) described in Orders 9(a) and 9(a)(i);(viii)Her personal effects not otherwise specified located at the Property N.
The Wife indemnify the Husband with respect to all debts and liabilities in the Wife’s sole name.
Except as provided for in Order 9 the Husband shall retain all assets and resources which he now has whatsoever and howsoever acquired (including prospective property), and the Wife shall not have a claim against the Husband with respect to property obtained by the Husband including but without limiting the effect hereof the Husband shall retain for his sole use and benefit absolutely;
(a)Any money to the credit of the Husband in any savings or other account;
(b)The Husband’s prospective entitlements arising out of his employment including but not limited to his prospective superannuation entitlements with (omitted) Superannuation (subject to the splitting order set out in Orders 11 and 13);
(c)Any shares held in the Husband’s name;
(d)Any motor vehicle registered in the Husband’s name;
(e)The furniture, furnishings and personalty / other articles of domestic use or ornament located at the Property W;
(f)His personal effects not otherwise specified.
The Husband indemnify the Wife with respect to all debts and liabilities in the Husband’s sole name.
On or before 60 days from the making of these Orders, that the husband:
(a)Do all such acts and things necessary to make available for collection by the Wife or any person(s) nominated in writing by her at any reasonable time requested in writing by the Wife all of the following property formerly located at the Property N and now at a location unknown to the Wife:
(i)
The (omitted), formerly a (omitted) wardrobe owned by the Wife’s mother;(ii)
The USB computer memory stick with digital images of the Wife’s overseas holidays;(iii)Family photographs and albums;
(b)Pending collection by the Wife of the property described Orders 9(a)(i), 9(a)(ii) and 9(a)(iii) of this Order the Husband shall properly maintain such items.
On or before 60 days from the date of receipt by the Wife of the property described in Orders 9(a)(ii ) and 9(a)(iii) those items be mailed by the Wife to the Husband by Australia Post registered mail.
In accordance with paragraph 90MT(1)(b) Family Law Act 1975: whenever a splittable payment within the meaning of Section 90ME of the Act becomes payable to or on behalf of MR DRYSDALE from his interest in the (omitted) Superannuation (the (omitted)), the Wife is entitled to be paid (by the Trustee of the (omitted)) 16% of the splittable payment and there shall be a corresponding reduction in the amount MR DRYSDALE would be entitled to receive but for these Orders.
The operative time for Order 11 is four (4) business days after the service of a sealed copy of these Final Orders on the Trustee.
The matter is now finalised and will be immediately removed from the docket.
AND IT IS NOTED THAT these orders have been amended pursuant to rule 16.05(2)(e) of the Federal Circuit Court Rules 2001.
IT IS NOTED that publication of this judgment under the pseudonym Drysdale & Drysdale is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 1711 of 2012
| MR DRYSDALE |
Applicant
And
| MS DRYSDALE |
Respondent
REASONS FOR JUDGMENT
Introduction
Detailed oral reasons in this matter were delivered on 19th December 2014, at which time orders were also pronounced. What follows are those reasons revised from the transcript.
These property proceedings arise out of the very long marital relationship between the parties that began in the early 1970s. On the Husband’s account, the relationship ended in 1999, which would put the duration of the relationship at 27 years or thereabouts. On the Wife’s account, which for the reasons that follow I accept, the marital relationship ended in 2011, which would put the relationship as being one of some 39 years. On either view, clearly the relationship was of very significant length.
There was no challenge to the proposition put by the Court that the matter was governed by the principles set out by the High Court in Stanford v Stanford, and more expansively by the Full Court in Bevan v Bevan and Chapman v Chapman.[1] Those principles applied to the current matter, in the light of the evidence set out below, confirm the Court’s view that (a) the marital relationship is at an end, and (b) it is just and equitable to make an order, pursuant to s.79(2) of the Family Law Act1975 (“the Act”), to adjust the property interests of the parties.
[1] Stanford v Stanford (2012) 247 CLR 108; Bevan v Bevan (2013) 279 FLR 1 especially at [57] – [89] Bryant CJ & Thackray J), and Chapman v Chapman (2014) 51 Fam LR 176.
For the reasons that follow, orders as sought by the Wife should be made.
These reasons proceed as follows: (a) orders sought by each of the parties; (b) background and generally agreed facts (including the asset pool); (c) outline of the contested oral evidence; (d) primary issues in dispute; (e) consideration of contributions and future needs; (f) disposition.
A. Orders Sought
The Applicant Husband’s orders sought are as follows:
1) Within 42 days of the date of these Orders the Husband will do all acts and things and sign all documents necessary to transfer his right title and interest in the property known and situate at Property N (hereafter referred to as the Property N property) to the Wife.
2) Simultaneously with Order 1 the wife pay to the husband the sum of $387,500.00.
3) Pending the transfer of the Property N property pursuant to Order 1 the following will apply:
4) The wife will pay as and when they fall due all outgoings, rates and taxes in respect of the Property N property and indemnify the husband and keep him indemnified with respect of those outgoings;
5) The wife will pay as and when they fall due all instalments of the mortgage registered against the Property N property;
6) The wife will pay as and when they fall due all instalments of general rates and land tax in respect of the Property N property.
7) Pursuant to these Orders the husband will retain to the exclusion of the wife the following assets:
8) The husband’s superannuation entitlements;
9) Any motor vehicle registered in the husband’s name;
10) Any money to the credit of the husband in any savings or other account;
11) Any shares held in the husband’s name;
12) Contents and items of personality in his name.
13) Pursuant to these orders the wife will retain to the exclusion of the husband the following assets:
14) The wife’s superannuation entitlements;
15) Any motor vehicle registered in the wife’s name;
16) Any money to the credit of the wife in any savings or other account;
17) Any shares held in the wife’s name;
18) Contents and items of personality in her name.
19) Subject to these Orders each party will be solely responsible for any liability in their name as at the date of these Orders and will indemnify the other party and keep them indemnified with prospect to those liabilities.
20) Pursuant to Section 106A of the Family Law Act 1975 that if either party refuses or neglects to comply with the direction to execute any deed, document, instrument or writing to give effect to these Orders then the Registrar of the Family Court of Australia can be appointed to execute the deed, document, instrument or writing in the name of the person to whom the direction was given and to do all acts and things that is necessary to give full operation of the deed, document, instrument or writing.
The Respondent Wife’s amended orders sought are as follows:
1) On or before 60 days from making these Orders, that the Husband do all such acts and things and sign all such documents as may be required to transfer to the Wife at the expense of the Husband all of his right title and interest in the property situate at and known as Property N in the State of New South Wales being the whole of the land more particularly described in Certificate of Title Folio (omitted) (hereinafter referred to as “the Property N”).
2) Contemporaneously with the Husband’s compliance with Order 1, that the Wife pay to the Husband a sum of equal to one half of the net asset pool (adjusted on the basis that each party retain assets in their name and the Wife retain the proceeds of sale of the Property N.
3) That the Husband is hereby declared to be the beneficial owner of the property situate at and known as Property W in the State of Queensland being the whole of the land more particularly described as Lot (omitted), Survey Plan (omitted), Title Reference (omitted) (hereinafter referred to as “the Property W”) and the Wife is hereby declared to have no estate or interest either at law or in equity in the Property W.
4) That as of the date of these Orders the following will apply:
a) The Wife have the sole right to occupy the Property N;
b) The Wife pay all rates, taxes and outgoings of the Property N as they fall due and indemnify the Husband and keep him indemnified with respect to those rates, taxes and outgoings;
c) The Husband have the sole right to occupy the Property W property; and
d) The Husband pay all rates, taxes and outgoings of the Property W property as they fall due and indemnify the Wife and keep her indemnified with respect to those rates, taxes and outgoings.
5) The Wife shall retain all assets and resources which she now has whatsoever and howsoever acquired (including prospective property), and the Husband shall not have a claim against the Wife with respect to property obtained by the Wife including but without limiting the effect hereof the Wife shall retain for her sole use and benefit absolutely:
a) Any money to the credit of the Wife in any savings or other account;
b) The Wife’s prospective entitlements arising out of her employment including but not limited to;
c) Her long service leave with (employer omitted);
d) Her annual leave with (employer omitted);
e) Her prospective superannuation entitlements with the (omitted) Superannuation (
subject to the splitting order set out in Orders 11 and 12);f) Any shares held in the Wife’s name;
g) Any motor vehicle registered in the Wife’s name;
h) The furniture, furnishings and personality/other articles of domestic use or ornament located at the Property N property;
i)
The (omitted) described in item (9.1)(9.1.1) [sic] of Order 9;j) Her personal effects not otherwise specified located at the Property N property.
6) That the Wife indemnify the Husband with respect to all debts and liabilities in the Wife’s sole name.
7) Except as provided for in Order 9 the Husband shall retain all assets and resources which he now has whatsoever and howsoever acquired (including prospective property), and the Wife shall not have a claim against the Husband with respect to property obtained by the Husband including but without limiting the effect hereof the Husband shall retain for his sole use and benefit absolutely;
a) Any money to the credit of the Husband in any savings or other account;
b) The Husband’s prospective entitlements arising out of his employment including but not limited to his prospective superannuation entitlements with (omitted) Superannuation (subject to the splitting order set out in Orders
11 and13);c) Any shares held in the Husband’s name;
d) Any motor vehicle registered in the Husband’s name;
e) The furniture, furnishings and personalty / other articles of domestic use or ornament located at the Property W property;
f) His personal effects not otherwise specified.
8) That the Husband indemnify the Wife with respect to all debts and liabilities in the Husband’s sole name.
9) On or before 60 days from the making of these Orders, that the husband:
a) Do all such acts and things necessary to make available for collection by the Wife or any person(s) nominated in writing by her at any reasonable time requested in writing by the Wife all of the following property formerly located at the Property N property and now at a location unknown to the Wife:
b)
The (omitted), formerly a (omitted) wardrobe owned by the Wife’s mother;c)
The USB computer memory stick with digital images of the Wife’s overseas holidays;d) Family photographs and albums;
e) Pending collection by the Wife of the property described in items (9.1)(9.1.1), (9.1) (9.1.2) and (9.1)(9.1.3) of this Order the Husband shall properly maintain such items.
10) That on or before 60 days from the date of receipt by the Wife of the property described in items (9.1.2) and (9.1.3) of Order 9 those items be mailed by the Wife to the Husband by Australia Post registered mail.
11) That in accordance with paragraph 90MT(1)(b) of the Family Law Act 1975: whenever a splittable payment within the meaning of Section 90ME of the Act becomes payable to or on behalf of MS DRYSDALE from her interest in the (omitted) Superannuation (the (omitted)), the Husband is entitled to be paid (by the Trustee of the (omitted)) 50% of the splittable payment and there shall be a corresponding reduction in the amount MS DRYSDALE would be entitled to receive but for these Orders.12)
The operative time for Order 1 is 22 July 2011.13) That in accordance with paragraph 90MT(1)(b) Family Law Act 1975: whenever a splittable payment within the meaning of Section 90ME of the Act becomes payable to or on behalf of MR DRYSDALE from his interest in the (omitted) Superannuation (the (omitted)), the Wife is entitled to be paid (by the Trustee of the (omitted)) 16% of the splittable payment and there shall be a corresponding reduction in the amount MR DRYSDALE would be entitled to receive but for these Orders.
14) The operative time for Order 1 is four (4) business days after the service of a sealed copy of these Final Orders on the Trustee.
B. Background & Generally Agreed Facts (including asset pool)
The parties are both aged 64 years. The Husband is now retired; he has re-partnered.[2] Unfortunately, his new partner has provided no affidavit, so there is little in the way of basic evidence about her, save as to what is stated by the Husband, such as that she lives currently on a pension, and that she has a residence, of unknown value, which she intends to allow her daughter to live in after she moves in to live with the Husband sometime in the not too distant future. The Husband also stated that his future live-in partner has a number of somewhat unspecified medical issues that would involve some cost.
[2] I might note here that the Husband was self-represented at the trial. At the beginning of the hearing I outlined both the trial process and the relevant sections of the Family Law Act 1975 to which the Court must have regard. Copies of those sections were made available to the Husband. See Transcript (8th December 2014) pp.2 – 9.
The Wife still works in (employer omitted) but intends to retire in 2015. For a relatively short time, she was living with her male companion, but they now both live separately. Like the Husband, details of her companion’s financial interests are not before the Court, accepting that in the Wife’s case, it was not suggested that she and her companion/friend intended to live together or otherwise to form a relationship that would involve some form of support, including financial support of the kind I understand to be contemplated and shortly to come to fruition by the Husband.
There are three adult children of the relationship.
The property pool is essentially agreed, except for the value of the self-represented Husband’s Ford (omitted) vehicle. He provides no evidence of its value, but says he has been told that it is worth approximately $1000. The Red Book value puts it at $5000, but other values, such as for trade-in purposes, are available. For the purposes of the pool, I am content to adopt the figure of $5000, which in fact benefits both parties.
Accordingly, for the purposes of the Court’s approach to the matter, and in accordance with the instruction from the High Court in Stanford v Stanford and by the Full Court in Bevan v Bevan and Chapman v Chapman, the asset pool will be taken both as to value and to ownership or relevant interest to be as set out in Table C in the Wife’s Case Outline filed on 2nd December. It is reproduced below:
| ASSETS | Ownership | Husband’s Value ($) | Wife’s Value ($) |
| Property N, NSW | Joint | $775,000 | $775,000 |
| Property W, QLD | H | $550,000 | $550,000 |
| (omitted) Shares 1492 @ $6.36 | W | $9,489 | $9,489 |
| (omitted) Shares 457 @ $58.40 | H | $26,688 | $26,688 |
| (omitted) Shares 125 @ $4.095 | H | $512 | $512 |
| (omitted) Shares 150 @ $3.785 | H | $568 | $568 |
| (omitted) Shares 105,000 @ $0.09 | H | $9,450 | $9,450 |
| (omitted) Bank Account | W | $14,645 | $14,645 |
| (omitted) Bank Account | H | $50,509 | $50,509 |
| Ford (omitted) motor vehicle | H | $1,000 | $5,000 |
| Ford (omitted) | H | $32,000 | $32,000 |
| Mitsubishi (omitted) | W | $3,500 | $3,500 |
| Sub Total of Assets | $1,473,361 | $1,477,361 | |
| LIABILITIES | Ownership | Value ($) | Value ($) |
| (omitted) Mastercard | H | $5,190 | $0 |
| Sale Costs Property N | W | $14,607 | - |
| Sub Total of Liabilities | $19,797 | $0 | |
| NET TOTAL (NON SUPER) ASSETS AND LIABILITES | $1,493,158 | $1,477,361 | |
| SUPERANNUATION | |||
| Fund | Ownership | Husband’s Value ($) | Wife’s Value ($) |
| (omitted) entitlements as at 1/11/14 | H | $567,773 | $567,773 |
| (omitted) entitlements as at 15/10/14 | W | $412,187 | $412,187 |
| NET TOTAL OF SUPERANNUATION | $979,960 | $979,960 | |
| FINANCIAL RESOURCES | |||
| Husband’s pending inheritance from his mother | H | $70,844 | NK |
| TOTAL OF FINANCIAL RESOURCES | $70,844 | NK | |
| TOTAL NET ASSET POOL (INCLUSIVE OF SUPER) | $ | ||
Note 1 – Husband's (omitted) Superannuation entitlements are in the payment phase and he receives a pension.
Note 2 – Wife’s entitlements as at 22/7/2011 had a FLV of $274,628.
I should note that evidence was provided by (omitted) Pty Ltd in relation to the Husband's (omitted) Superannuation pension and what the Wife would receive in the event that a splitting order was made. That evidence came primarily in the form of correspondence from that company, dated 5th December 2014, which became Exhibit D. In addition to this, some quite clarifying questions were put to Mr S (from (omitted) Pty Ltd) on the second day of the trial.[3] I need not outline it because, in my view, it made no appreciable difference to the documentary evidence before the Court.
[3] See T 106 ff.
Contested Oral Evidence
The oral evidence of the parties was very brief indeed. Respectfully, it added little, except time, to the considerations of the Court. It may be summarised as follows.
The Husband’s Evidence
Leaving to one side the question of the value of the Husband's Ford (omitted) vehicle, the first line of questions put to the Husband related to his affidavit in reply (filed 7th November 2014) where he confirmed that between 1999 and 2004 he and the Wife went to see five counsellors about their marriage. In his oral evidence he was at pains to state that in fact the sessions were to discuss “our non-marriage and my divorce.”[4] I should perhaps note here that at par.9 of the Husband’s affidavit, filed 7th November 2014, he confirmed his attendance at “marriage guidance”, noting that the description “marriage guidance” was the Wife’s term.
[4] T 20.
Next, he confirmed that he could have sought, but did not seek, a divorce from his Wife.[5]
[5] T 22-23.
In relation to the parties’ relationship, in the context of the Husband’s comments in his affidavit in reply (filed 7th November 2014: par.76), I note the following lengthy exchange, which goes, primarily, to the contested issue of the duration and end of the relationship:[6]
[6] T 27 – 30.
HIS HONOUR: But you didn’t have to put it [i.e. detail of the Wife’s disfigurement] in there if I didn’t need to know about it?‑‑‑No, I was trying to explain why my affection for her ceased in 1975.
MR HOWARD: Right.
HIS HONOUR: But the reality is though whenever your affection ceased you still had more children and you stayed together for decades; correct?‑‑‑Yes.
MR HOWARD: Yes, and that was my next question, your Honour.
HIS HONOUR: Sorry. Sorry, Mr ‑ ‑ ‑
MR HOWARD: No, that’s all right. Your Honour has pre-empted my next question which was – so however grotesque you say that you found Ms Drysdale after that date, and it was from 1974 – when you discovered the physical disfigurement that you describe it as – and despite there being a reduction in your sexual relations your marriage continued even on your version for another 24 years, didn’t it?‑‑‑I can’t answer a question where your preamble is – is grotesque. That’s not a word anyone has used.
Right. So you don’t think that the word “physical disfigurement” implies grotesque as a synonym?‑‑‑No.
Right. However ‑ ‑ ‑
HIS HONOUR: So what is the relevance of that referring?‑‑‑Well, the whole issue was that it was a deception that should not have occurred. If we had been an honest couple that would have been dealt with early on in our relationship, not hidden. It was only ‑ ‑ ‑
But ‑ ‑ ‑?‑‑‑That is my issue in relation to that.
But whatever – whether you call it a deception, reality is, as I’ve already put to you, and it’s indisputable that you still had more children with your wife and you stayed together for decades more?‑‑‑That’s right.
So ‑ ‑ ‑?‑‑‑I’m a parent of the children.
Well, so is she, is she not?‑‑‑That’s right.
But for the purposes of what I’ve got to decide I’m most looking for assistance. How does this help me at all, you know?‑‑‑Well – okay.
I’ve got so much accumulated history of you both and really, very little of it helps me to deal with the issues that I’ve got to decide. It’s almost as if that – at least, I hope it is – some sort of cathartic experience for you both to share all this in open court, get me to read it all but at the end of the day it doesn’t help me one way or the other?‑‑‑Well, it certainly is not my intention. I was responding to a hundred and sixty page – or two hundred and sixty page affidavit where that sort of material was contained. All I would like to say is I stayed in that marriage beyond 1975 because I considered myself a responsible father who wanted to look after my children.
And you still had more children with this lady?‑‑‑Yes. And when the third one arrived I immediately went and had a vasectomy because I didn’t want anymore, because it delayed my separation for another five years.
But you’re not suggesting, surely, that either you were cajoled, or forced under duress ‑ ‑ ‑?‑‑‑No.
‑ ‑ ‑ or otherwise to have more children?‑‑‑No. No, your Honour, I felt morally obliged that after the first child to leave – wait until the child was 18. She had a child in ’77, because we did occasionally have sex. I wouldn’t call it love making of any sort. And then I thought, right, that will be 18 years from 1977, when the child was born, and low and behold she became pregnant in ’82 and I said, “That’s it, no more” and I had to stay until 2000. That was what was in my mind.
You make it sound like almost like some form of sexual servitude?‑‑‑No, there was nothing about sexual – there was very little sex involved. I wanted out of the relationship but I stayed for my children.
But you still had more children?‑‑‑Yes, that’s right.
And what, the devil made you do it?‑‑‑No, no, I’m not saying we were divorced in 1975. As far as I was concerned, I wanted out in ’75, but we occasionally had sexual intercourse between ’75 and ’99.
Well, obviously, because you had more children?‑‑‑That’s right. But it wasn’t very often.
Respectfully, I can do nothing about that?‑‑‑No, no, but, your Honour, I think you misunderstand what was going through my mind.
Well, respectfully, I’m not sure that I need to know?‑‑‑No, no. Well, that’s right, but I didn’t write that 260 pages of material like that and my – this first document here ‑ ‑ ‑
We should have listed the matter for a ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ is just to deal with ‑ ‑ ‑
Mr Drysdale, I said at the outset, if we’re going to deal with every single item in this we’re going to be here for weeks. You better settle back, this going to be Jarndyce and Jarndyce?‑‑‑But I had no intention of harming her in any way by that paragraph.
MR HOWARD: All right. So you don’t say that by describing Ms Drysdale as having a physical disfigurement, you didn’t think that would have any impact on Ms Drysdale?‑‑‑What I’ve been through for the last three years, no.
And you just said in answer to a question to his Honour that you had sex, that you wouldn’t call it love making of any sort?‑‑‑No.
And you don’t think that was designed to try and distress Ms Drysdale only?‑‑‑What, making love or sex, no.
No, describing it as not love making in any way?‑‑‑It wasn’t love making.
Right. And that’s not designed ‑ ‑ ‑?‑‑‑Well, that’s what I feel in my heart. Okay.
That’s not designed just to distress Ms Drysdale, but you say that’s because that’s important for his Honour to know that that’s the description?‑‑‑No, I didn’t say that either. So effectively, from that discussion that we’ve had, you would say that you were unhappily married from 1975?‑‑‑Correct.
You preferred a divorce or a separation?‑‑‑Sorry?
You would have preferred to have a divorce or a separation?‑‑‑Yes.
But that you stayed together for the children, you would say?‑‑‑Yes.
And in the 1975 to 1999 period, you certainly continued, you and Ms Drysdale, to portray yourselves to the world, including your children and other family, as a married couple, whether happily or not, but as a married couple?‑‑‑Married meaning?
Just – married has a meaning, sir, as opposed to separated?‑‑‑Yes, we were legally married.
Well, you were presenting yourselves to the world as a married couple?‑‑‑Not from the early 1990s.
Well, you continued to go on holidays together with the children. During the period 1975 to 1979 you went on holidays together with the children?‑‑‑Yes.
You lived in the same house together?‑‑‑Yes.
You had meals together?‑‑‑Yes.
You slept in the same bed?‑‑‑Most nights.
Yes. You occasionally, from our discussion earlier, had sexual relations, however described, in 1975 to ’79 – to ’99. 1975 to ’99?‑‑‑I’m not sure about “98.
HIS HONOUR: Again, I don’t think I need to know?‑‑‑Sorry, sir. Sorry. Well, until the late 90s, yes, but less and less regularly, your Honour.
MR HOWARD: And you certainly didn’t tell family members that the two of you were separated?‑‑‑No.
No. And so really what you say is that you stayed together for the sake of the children?‑‑‑Yes.
In a similar vein, the Husband confirmed that (a) he sometimes slept in the same bed as the Wife at least up until 2006,[7] (b) he attended various family events with the Wife, sometimes with one or more of their children, and (c) continued to go on holidays occasionally, between 1999 and 2006.[8] The Husband agreed that he and the Wife (with at least one of their daughters) went together to his 53rd birthday party in (omitted) in (omitted) 2003.[9]
[7] T 32.
[8] T 32 – 35. At par.238 of the Wife’s trial affidavit, filed 4th November 2014, she provided a somewhat rudimentary chronology
[9] T 34.
The Husband confirmed that he went to a family funeral with the Wife in 2009, that there was a family gathering for his birthday (also with the Wife) in (omitted) 2010, and that he visited named friends with the Wife in 2011, that he and the Wife had dinner together in the marital residence after 1999 and sometimes went out to dinner together with friends between 1999 and 2011.[10]
[10] T 37 – 39.
The Husband also confirmed that between 1999 and 2011 he never told any member of the family, including their children, that the parties were separated.[11] At some point in 2011, the Husband confirmed that the Wife told his Mother that the parties had separated. The Husband confirmed that he was angry with the Wife having done this because he did not want his Mother to know that they were separated and that in fact they were “a continuing married couple.”
[11] T 39 & 40.
Notwithstanding his answers to which I have just referred, the Husband later contended that he never portrayed himself as being married after 1999.[12] Respectfully, such an answer or comment belies and is, in my view, completely inconsistent with, his earlier evidence.
[12] T 40 & 41.
With significant difficulty, which unfortunately often attended much of the Husband’s evidence, he agreed that the parties shared a credit card facility, which was in his name, and which was linked to the one account.[13] It was used by both parties up until 2007.[14]
[13] T 42.
[14] T 43.
Also with some diffidence, the Husband confirmed that he did the Wife’s tax returns up until 2002, and on those forms he confirmed that she was his spouse.[15] In the course of the Wife’s evidence, essentially by way of submission, the Husband said that he did the tax returns, not on behalf of his Wife but simply as a “family member.”[16] To say the least, and to put it in the most benign way, this was a “curious” distinction.
[15] T 44 – 45.
[16] T 76.
Later still in the Wife’s cross-examination, the Husband made the even more remarkable submission that he went to various family and other gatherings or outings with the Wife, not as Husband and Wife but as her “friend.”[17] The following exchange needs to be recorded (emphasis added):[18]
[17] See T 81.
[18] T 81 – 82.
… And you say in – (omitted) 2001, we visited your father in (omitted), who was ill with cancer. Did we go together, or did I also drive some of our children?‑‑‑I think just you and I went, because that was the day our house got burgled and X went to university.
Yes, and the other two were with us. They stood outside the house whilst I rang the police. So there were four of us?‑‑‑Okay, I don’t remember.
So I did drive your grandfather’s grandchildren to see him, yes?‑‑‑I don’t remember. I don’t remember the children went with us, actually.
HIS HONOUR: Sorry, what was that, Ms Drysdale?‑‑‑I thought it was just you and I.
MR DRYSDALE: Did I meet your parents in 1972?
HIS HONOUR: Sorry, this goes to what?
THE WITNESS: 1972.
HIS HONOUR: Mr Drysdale, what does this relate to?
MR DRYSDALE: Because she makes big points about these so-called family events with members of her family.
HIS HONOUR: But 1972, please, how is this relevant?
MR DRYSDALE: I am saying that I went to these things as her friend, not as their – not as Ms Drysdale’s husband, because we weren’t married in my mind. I went as – they were 40 year old friends of mine.
HIS HONOUR: In 1972?
MR DRYSDALE: No, no. I’m saying that when her mother had her death in whenever, or in 2008, we went to a birthday party. That is 30 odd years after I met her. We were close friends. We ate together. We played cards together. We did lots of things together. Whether or not we were married or divorced would have made no difference. I would have attended. That’s all I’m saying, right, because she is making a big deal about things like together, family events together. I’m saying that I did them as a friend in relation to those people, and as a father in relation to my children’s birthdays or whatever else. I don’t – this distortion about family events is not family events. That’s all I’m trying to point out.
HIS HONOUR: I sort of hesitate to make the point, Mr ‑ ‑ ‑
MR DRYSDALE: Sorry?
HIS HONOUR: I sort of hesitate to make the comment or observation that – the begetting of children, was that just as a friend as well?
MR DRYSDALE: My children?
HIS HONOUR: Yes.
MR DRYSDALE: No, I ..... Father’s Day, or my children’s birthdays I attended. But we didn’t go as husband and wife to those things. I went as a parent. Whether I was married, divorced or single…
As entitled as people are to their respective beliefs, the exchange just outlined, in my view, indicates clearly at least (and perhaps somewhat unintentionally) a very cavalier, if not a misleading and remarkably nonchalant, bordering on an immaturely irresponsible, approach by the Husband to the marital relationship with the Wife which he cannot now claim to disavow, or to assert that it ended in 1999.
There followed a range of questions to the Husband that related to his interest in his Mother’s estate and the difficulties he has as executor of it. The discussion also included whether he had properly or fully disclosed all relevant financial matters in relation to his interest in that estate, the distribution of some funds to two of the parties’ daughters (sums in the order of $20,000 each), the provision of approximately $10,000 to his new partner, and that upon his receipt of funds from the distribution of his Mother’s estate (said to be in the order of $68,667.00), he and his partner (a Ms C) have already determined what they will do with those funds.[19]
[19] See T 47 – 52.
The Husband confirmed that the thought of his partner providing her financial details ‘had never crossed his mind’; the Husband confirmed that the financial details of the Wife’s male companion/friend had been provided to him. He also confirmed that he had provided no details of his partner’s health condition(s), the possible or likely cost of treating them, and nor had he provided any details, other than in relation to hearing aids, of his own medical needs.[20]
[20] T 52 – 53.
Finally, the Husband was taken to the evidence before the AAT in relation to a compensation claim made by him in 2004. Paragraph 13 of the Tribunal’s decision refers to certain tasks undertaken by the Husband, in 2004, and that “his Wife [now] does the gardening.” The Husband sought to diminish this rather clear statement by the Tribunal, saying or suggesting that his lawyer probably gave that evidence. He denied that he would have made such a statement.[21]
[21] T 56 – 57.
In the circumstances, I took this evidence of the Husband to be an instance (and not for the first time) of him seeking to bolster his case and to play down, as it were, any evidence that suggested or indicated that the parties remained in a marital relationship well after 1999.
Giving every proper allowance to a self-represented litigant, and also giving due allowance for some hearing difficulties of the Husband, I took his evidence generally as being as truthful as he could be, but at the same time, as already mentioned, there was a patent level of bitterness or resentfulness towards the Wife that coloured his view of the world generally and his evidence in particular. He was a quite self-absorbed older gentleman, who I note described himself in evidence that was before the AAT as living an almost hermit-like existence with few friends. It would be churlish, or worse, to describe him as somewhat curmudgeon-like in his approach to life; however, certainly in relation to his Wife of many decades (whatever his interior disposition of unhappiness, or deceit about her physical appearance, he felt since 1974), and the Mother of his children, he was decidedly oppositional to anything and everything that related to the marital property. This extended to not even agreeing to the scale costs of the sale of the former marital residence, which costs had been provided in writing by the solicitors acting on the conveyance. The details of the costs became Exhibit C.
It was also very clear that the Husband placed very significant weight on his financial contributions to a degree that undermined or played down correlatively the contributions of the Wife as home-maker and Mother. This was pointed out to him on a number of occasions, but which unfortunately made little or no difference to his approach.[22]
The Wife’s Evidence
[22] Among a number of places, see T 68.
The Wife’s evidence was very brief. Almost all the questions put to her by the Husband were clearly intent on either nit-picking details which make no relevant difference to any matter that must be addressed by the Court. Indeed, almost invariably the Husband sought to point out or to highlight factual errors in the Wife’s material, to which he regular response was that she did not recall the precise details, usually to details going back many decades.[23] The following couple of examples give some “flavour” of the nature of the Wife’s cross-examination, as the Husband sought to plumb the depths (metaphysical and otherwise) of what does and what does not constitute “marriage.” Thus:[24]
[23] See, for example, the series of questions about the Husband’s place of work in 1988: T 61 – 62.
[24] T 69.
No. I just asked you did we eat out weekly or monthly or yearly during that whole relationship together?‑‑‑Sometimes we did.
Over the 30-odd years – sometimes?‑‑‑Yes, sometimes we did.
What’s that – less than 10 maybe? All right?‑‑‑Many more than that. When we lived in (omitted), we did it all the time. We were in the babysitting club and we went out very often.
Did we? So that was – what – up to 1988. Okay?‑‑‑And we went ..... together.
Did we go to the movies together every year?‑‑‑You hated the movies.
Every year, did we go together? Just us?‑‑‑That’s because you hated the movies. You never went to the movies anyway.
Thank you. Good. Did we go dancing together frequently?‑‑‑I loved dancing. You hated dancing.
Yes or no, please?‑‑‑No.
Thank you. Did we go on holidays together after 2001, just you and me?‑‑‑We went to visit my relatives when – my mother’s 80th birthday.
No. Did we – sorry. Okay. No. I will retract that statement. Did we go on any holidays together, you and I, other than to our parents or brother’s or sister’s homes?‑‑‑But we never did in the whole marriage because we didn’t have any money to go on a – except for – to (omitted) and (omitted) and (omitted).
Thank you. Did we – now, you’ve travelled overseas extensively. Have we travelled overseas together?‑‑‑No.
No. Yes or no? Since 1999, have we engaged in any romantic or sexual activity?‑‑‑I’m not – well, I don’t know about 1999. I know from 2006 we didn’t because that’s when you moved out of the bedroom but before ‑ ‑ ‑
Could you answer the question. Did we engage in sexual activities from 1999?‑‑‑I don’t ‑ ‑ ‑
And a little later, there was this exchange:[25]
[25] T 71.
Did I have a vasectomy in 1990 – 1982?
HIS HONOUR: Sorry. What does this go to, Mr Drysdale, please?
MR DRYSDALE: I’m trying to establish that we didn’t have a relationship together.
HIS HONOUR: There could be any number of reasons why someone might or might not have a vasectomy, could I suggest, and it doesn’t necessarily indicate ‑ ‑ ‑
MR DRYSDALE: I was going to ask her why, the next question.
HIS HONOUR: How does this help me, Mr Drysdale?
MR DRYSDALE: To indicate to me that I wanted out of that marriage a long, long time ago and that I had asked ‑ ‑ ‑
HIS HONOUR: Yes, but you still – you still had children.
MR DRYSDALE: Okay. Fine.
HIS HONOUR: And that was not, obviously – at least I assume so, that was not by some process of trickery or duress.
MR DRYSDALE: Sure. I admit the three attempts, your Honour.
HIS HONOUR: How very gracious.
The parties seemed to agree that neither of them engaged in each other’s hobbies – the Husband and his (hobby omitted), and the Wife and her (omitted) and (omitted).[26]
[26] T 80 – 81.
The Wife’s evidence, like the Husband’s, I took to be essentially truthful. And like the Husband’s evidence, the Wife often did not recall events or circumstances that were put to her relating to events many years ago.
Issues for Determination: The Date of Separation
The main issues at trial were as follows: the date of separation of the parties; the contributions of the parties during the relationship and post-separation, and the so-called s.75(2) [future needs] factors. It is important to note the following in relation to the date of separation, particularly because of the Husband’s concerns during the trial and his approach to it.
The Husband was intent on having the Court determine the actual date of separation of the parties. In his view it was essential that this occur because, he said (as noted earlier in these reasons), (a) separation was in 1999, and (b) once this was established, in some way (he contended) this had the effect of quarantining his assets from the Wife’s pursuit of them after that date.
Respectfully the Husband was and is inaccurate in this regard in at least two respects.
First, for the purposes of property proceedings, the date of separation does not, of itself, determine whether the assets of one party are or are not included in the asset pool. Indeed, as s.79(1) of the Act makes clear:
(1) In property settlement proceedings, the court may make such order as it considers appropriate:
(a) in the case of proceedings with respect to the property of the parties to the marriage or either of them—altering the interests of the parties to the marriage in the property; or
…
including:
(c) an order for a settlement of property in substitution for any interest in the property; and
(d) an order requiring:
(i) either or both of the parties to the marriage; or
…
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
Section 79(2) further provides: “The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.”
There is long-standing authority which holds that the reach or ambit of s.79(1) is extremely wide so that all property that is owned by the parties at the time of the hearing is liable or susceptible to an order under that section.[27]
[27] Among many cases, see the discussion in In the Marriage of Lee Steere (1985) 10 Fam LR 431; and In the Marriage of Hickey (2003) 30 Fam LR 355. In the latter case, the Full Court said, at [40]: “Section 79 … requires the court to consider the whole of the property of the parties, however and whenever acquired, notwithstanding that the parties may only seek an alteration of interest in some of that property.”
More fundamentally, although strictly speaking not necessary, because it was so fiercely contested, in my view, the evidence very clearly points to the relationship having ended very much later than protested by the Husband. This is so for the following reasons.
Whatever the Husband subjectively thought or intended regarding the date of the end of the relationship, it is for the Court to make determinations objectively in the light of the evidence presented to the Court.
Whatever the Husband thought or intended regarding the status of the marriage, in addition to his oral evidence noted earlier, among a number of clear pieces of evidence that are contrary to the contention of the Husband are statements made in the AAT in mid June 2004, based obviously on the Husband’s instructions. In June 2004, the AAT clearly referred to the parties as Husband and Wife. The Decision and Reasons of the Administrative Appeals Tribunal, dated 8th June 2004 ([2004] AATA 582), became Exhibit B. Although he sought to distinguish or to distance himself from the findings and comments of the AAT, in my view, the Husband’s position about the relationship ending in 1999 cannot be sustained in the light of the unchallenged comments by the AAT. But there is more.
In the recent case of Sidhu v Van Dyke,[28] the High Court relied upon important comments of Dixon J in Grundt v Great Boulder Proprietary Gold Mines Ltd, where his Honour said, at pp.674, 675 & 676 (emphasis added; internal citations omitted):[29]
The principle upon which estoppel in pais is founded is that the law should not permit an unjust departure by a party from an assumption of fact which he has caused another party to adopt or accept for the purpose of their legal relations. This is, of course, a very general statement. But it is the basis of the rules governing estoppel. Those rules work out the more precise grounds upon which the law holds a party disentitled to depart from an assumption in the assertion of rights against another. One condition appears always to be indispensable. That other must have so acted or abstained from acting upon the footing of the state of affairs assumed that he would suffer a detriment if the opposite party were afterwards allowed to set up rights against him inconsistent with the assumption.
The justice of an estoppel is not established by the fact in itself that a state of affairs has been assumed as the basis of action or inaction and that a departure from the assumption would turn the action or inaction into a detrimental change of position. It depends also on the manner in which the assumption has been occasioned or induced. Before anyone can be estopped, he must have played such a part in the adoption of the assumption that it would be unfair or unjust if he were left free to ignore it.
Whether a departure by a party from the assumption should be considered unjust and inadmissible depends on the part taken by him in occasioning its adoption by the other party. He may be required to abide by the assumption because it formed the conventional basis upon which the parties entered into contractual or other mutual relations, such as bailment; or because he has exercised against the other party rights which would exist only if the assumption were correct …; or because knowing the mistake the other laboured under, he refrained from correcting him when it was his duty to do so; or because his imprudence, where care was required of him, was a proximate cause of the other party's adopting and acting upon the faith of the assumption; or because he directly made representations upon which the other party founded the assumption.
[28] Sidhu v Van Dyke (2014) 251 CLR 505; (2014) ALJR 640; (2014) 308 ALR 232. The majority judgment (French CJ, Kiefel, Bell and Keane JJ) referred to the comments of Dixon J in Grundt (passages at pp.674-75) at [79] & [80]. The dissenting judgment of Gageler J also referred to Grundt (the passage at p.674) at [92]. It should be obvious that I have selected a much larger section of Dixon J’s judgment in Grundt than did the High Court.
[29] Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641. See also the long-standing comment by Lord Esher MR in Seton Laing & Co v Lafone (1887) 19 QBD 68 (CA) (emphasis added): “An estoppel does not in itself give a cause of action; it prevents a person from denying a state of facts.” And further, the detailed discussion in K.R. Handley, Estoppel by Conduct and Representation (Sydney: Thomson – Sweet & Maxwell, 2006) passim. Curiously, Handley’s text is referred to with approval by the Justices in the majority, and also in the dissenting judgment in Sidhu.
In my view, particularly in the light of the comments of the High Court to which I have referred, whatever the Husband thought and held privately about the end of the relationship, nonetheless he did nothing either to inform or otherwise to represent to outside observers that he and the Wife were anything other than a married couple. Indeed, whatever the Husband felt, which he sets out at length in his affidavit material (including that in his view, the marriage came to an end in 1975 or thereabouts), unhappiness does not, without more, equate to separation. Indeed, his conduct during the relationship is at significant variance with his assertions before the Court from which he cannot now resile. Three rather stark examples will suffice.
Amongst a significant amount of material filed in the proceeding, on 7th November 2014 the Husband filed an affidavit in reply of 183 paragraphs. At paragraph 76 of that affidavit he said:
Paragraph 235 of Ms Drysdale’s affidavit; Ms Drysdale falsely states that: “physical affection and physical intimacy between us had never been a major part of our relationship at any time during our marriage.” This is the most outrageous statement in Ms Drysdale’s affidavit. It begs the question as to why we ever married. The answer is simple, the person I lived with before our marriage was a fake, an illusion. When we first met we engaged in sexual intercourse daily, and usually more often. This continued until the end of 1974 during the early stages of Ms Drysdale’s first pregnancy. Since that time Ms Drysdale’s attitude to sexual activity has been that of complete avoidance and she employed a range of tactics that reinforced her true prudish character. So why the metamorphosis from a sexually active person to prudish avoidance? The answer as I discovered in late 1974 is that Ms Drysdale had a physical disfigurement. Prior to our marriage, whenever my hand moved towards her bra or her breasts, we seemed to become involved in sexual intercourse. I did not see her breasts, until late 1974. If I had seen them before I would not have married her. As she was pregnant and expected to breast feed she, at some time had the disfigurement remedied. From that point onwards Ms Drysdale avoided and minimised any sexual activity as she now had no reason to participate to avoid her disfigurement being discovered. Our marriage was doomed. If she had not been pregnant I would have sought a divorce in 1975.
In the light of these tersely lurid and doubtless hurtful comments (unintended or otherwise), I observed to the Husband that, notwithstanding his contention that the “marriage was doomed” and that, in effect, the marriage was over in either 1974 or 1975, he nonetheless continued to have more children with the Wife. Against this background, his contentions in relation to the end of the relationship, in my view, took on a somewhat more problematic character than might otherwise have been the case. Indeed, in my view, the Husband’s obviously continuing intimate relationship with his Wife that resulted in more children clearly “represented” to the world that they remained a marital couple.
Secondly, attached to the Wife’s voluminous trial affidavit (of 212 pages), filed 4th November 2014, at various annexures to it she produced date-identified photographs of the parties (post 1999), usually with friends, which more than suggest that they (i.e. the parties) represented publicly (and did so over a period of time even in what might properly now be characterised as the latter part of the relationship) as a “couple.” Further, various witnesses who filed affidavits on behalf of the Wife, such as Ms L (affidavit filed 21st January 2013) and Mr K (affidavit filed 29th October 2013), all deposed to the parties appearing publicly as a “couple.” None of these (and other) witnesses were required for cross-examination.
The Husband sought to explain what the reality presented in those photographs actually was.[30] It was at variance with the unchallenged affidavit evidence of the witnesses who had deposed otherwise on behalf of the Wife, and certainly at variance with the unchallenged comments of the AAT.
[30] See the discussion at T 69-70.
Thirdly, as noted earlier in these reasons, the Husband agreed that he attended quite a number of “family events”, post 1999, but he did so (he said) only as a parent of his children and as a friend of the Wife, not as her Husband. He also confirmed that he never told any member of his family that the parties were separated.
I simply repeat my earlier comments about the distinction between what the Husband subjectively thought the position was and his private opinion regarding the state of the marriage, as opposed to, viewed objectively, his lack of public information to family and friends that the parties had separated and the objective presentation of the parties as a married couple.
Two other observations should be noted here.
First, annexure A to the Husband’s affidavit, filed 7th November 2014, is a copy of a letter from the Wife’s then solicitors to the Husband, dated 14th October 2011. In my view, because it seeks a response from the Husband in relation to “property settlement”, it comes within that category of documents that refer or relate to “settlement discussions” that should not be before (or relevantly considered by) the Court.[31] I should also add that there was little more than passing reference to the letter in the course of the trial.[32] Further, in any event, the evidence of the parties during the trial, in my view, more cogently points to the conclusion that I have reached regarding the duration and end of the relationship.
[31] See, among other places, Evidence Act 1995, s.131. See also, s.117C Family Law Act 1975.
[32] See T 115, 139 & 141 – 142.
Secondly, in this regard, I note that the following authorities and the application of principle drawn from them, likewise point to the same conclusion. Thus, in In the Marriage of Pavey (Full Court – Evatt CJ, Demack & Watson JJ), Howland v Ellis (NSW Court of Appeal), and In the Marriage of Jennings (Dessau J), the Courts there referred to the following “fact specific” matters to be considered regarding property settlement and separation:[33] (a) physical separation of the parties, of itself, is not conclusive that the marital (or de facto) relationship has ended; (b) consideration of the mutual care provided is relevant; (c) the onus rests on the party asserting the end of the relationship to establish this fact; and (d) the intention of the parties to end the relationship is a significant consideration, as is acting upon that intention.
[33] In the Marriage of Pavey (1976) 1 Fam LR 11,358; Howland v Ellis (2001) 28 Fam LR 656; In the Marriage of Jennings (1997) 22 Fam LR 510.
In the current matter, in my view, among other evidence is the critical fact that the Husband did not act on his intention to sever the marital relationship with the Wife. He clearly did not do it in 1974 or 1975 when, on his evidence, he considered the marriage to be at an end. And as I have observed, he continued to have children with the woman he considered to have deceived him in relation to some form of breast disfigurement, which he said was a signal element of the marriage. It is hopefully unnecessary to comment on such a consideration by the Husband. Certainly, as a matter of law, disfigurement of any kind is not grounds for divorce. And in any event, it seemed not disputed that the disfigurement was remedied. The Husband did not say whether he considered if the remedial surgery undertaken by the Wife (which I assume was the course undertaken) had also repaired the marriage and that the deceit of him had likewise been purged.
Accordingly, if it were necessary, in my view, the evidence (including the Husband’s conduct post 1999) points unequivocally to the date of separation as asserted by the Wife to be in 2011.[34]
[34] Among other places, see the Wife’s Affidavit, filed 4th November 2014, pars.191 & 192 for the brief detail of the Wife’s separation from the Husband.
Contributions
Throughout the trial the Husband repeatedly asserted that his financial contributions were greater than those of the Wife, and likewise asserted that the Court should give greater weight to his financial contributions, as opposed to the non-financial contributions of the Wife. There are two comments to be made in response.
First, at least since the High Court judgment in Mallet v Mallet it has been recognised and accepted that there is no presumption of equality of contributions.[35] Secondly, notwithstanding this basic principle, the Full Court has often noted that, particularly in long marriages, which obviously is the case here, a finding of equality in the contributions is almost inevitable. And further, it has also been long recognised that the Court’s assessment of contributions is not a mathematically precise accounting exercise;[36] the assessment of the respective contributions by each of the parties depends entirely on the facts of each case, and falls within the Court’s assessment and discretionary judgment.[37]
[35] Mallet v Mallet (1984) 156 CLR 605.
[36] See Hayne & Hayne (1977) FLC ¶90-265.
[37] See the comments of Gibbs CJ in Mallet at CLR pp.608 – 609.
Also by way of observation, and again beginning with Mallet, Gibbs CJ referred to the proper assessment of the role of “homemaker” not in any token way but in a “substantial way”.[38] Later cases, such as Ferraro & Ferraro, have confirmed that the task of evaluating the contributions of the parties is difficult precisely because the comparison is not conducted on “a level playing.”[39]
[38] Ibid at p.609.
[39] See Ferraro & Ferraro (1993) FLC ¶92-335 at p.79,572.
In such a long relationship here of some 39 years, in my view, it is inescapable for the Court to find anything other than that the contributions were essentially equal. This is so notwithstanding that the Husband asserted (as I have noted), and often so in his material, that his financial contributions should be given greater weight. That is not the law.
There must and will be a finding that the contributions during the relationship were equal. Indeed, relevant authority, such as Ferraro in (1993) and Hayne even earlier in (1977) to which I have referred, in different ways, confirm that it is not possible, and it is inappropriate, to consider contributions in long marriages in terms of a strict, financial accounting exercise; nor is it possible or appropriate to compare financial contributions with those of a home-maker and the Mother of the parties’ three children. To seek to make such assessment of contributions is, in colloquial parlance, to try to compare apples and oranges.
That is certainly and clearly the case here. A marital relationship of 39 years, in the light of the evidence before the Court (acknowledging its limitations), requires that there be a finding that the contributions of each of the parties be assessed as equal.
Section 75(2) Considerations
Before turning to matters set out in s.75(2) of the Act, I recall the comments of the Full Court in Brandt, where it was said that the process of evaluating the factors under s.75(2), as indeed generally in determining the order that is just and equitable to be made under s.79, “is not generally an accounting exercise nor is it analogous to an award of damages or compensation which might call for a division into component parts.”[40]
[40] In the Marriage of Brandt (1997) 22 Fam LR 97 at p.107.
In my view, the only matters of relevance on the evidence under s.75(2) are as follows.
I have already noted the parties’ ages. The Wife is in good health. The Husband says that he has a number of health issues, including hearing problems. Unfortunately, apart from the Husband’s own somewhat abbreviated evidence, there is nothing formally to support the costs he says he will incur to deal with them.
I have also previously noted the financial situation of the parties with the Husband now retired and the Wife to do so in 2015.
And I have earlier recorded the lacunae in the evidence of the parties, particularly in relation to their new and more recent relationship interests. The Wife, however, provided to the Husband (which was acknowledged by him in the course of his evidence) the financial details and circumstances of her non-live-in companion, but the Husband did not reciprocate. No such details are before the Court. These are not insignificant gaps. The Court cannot and will not guess what their evidence may have disclosed, and in turn, what possible impact it might have made to the Court’s final orders.
It might be said, without any criticism, that it appeared that the Husband perceived the litigation as a means to secure and to resolve virtually all future financial problems he is likely to face, such as if one of his adult children and her child were to return to live with him, and matters relating to his new partner (who is some 12 years younger than he is) and her range of health issues.[41] Unfortunately, in the absence of relevant evidence, such matters must be considered simply as the vicissitudes of life; family law litigation is not a panacea for them all. Indeed, as authorities of long-standing make plain more generally in relation to property proceedings, family law property litigation is not, and should not be treated as, an exercise of “social engineering.”[42]
[41] See, for example, T 87.
[42] See In the Marriage of Clauson (1995) 18 Fam LR 693 at p.711 (Barblett DCJ, Fogarty & Mushin JJ); In the Marriage of Kennon (1997) 22 Fam LR 1 at p.35 (Fogarty & Lindenmayer JJ).
Other issues, of somewhat lesser moment, were as follows.
The Husband is embroiled in an inheritance dispute from his Mother’s estate. He is concerned that he will get virtually nothing out of it, but confirms that the value of his share of the estate now stands at approximately $68,000. The Husband was clear in wanting to make sure that the Court knew of the difficulties he was encountering in relation to that matter. The Court cannot do anything about it. The relevant figure must, and will, be included in the asset pool.
No submissions were put to the Court in relation to the parties’ respective “standards of living”, save that, in the event of orders sought by the Wife in relation to superannuation, the Husband referred to the fact that he will have a somewhat diminished income. Otherwise, the Court can make no comment on this particular facet of s.75(2)(g).
There is also no doubt that the Husband’s purchase (in 2013) of his current residence in Queensland used funds from the marital asset pool. He disputes this on the basis that he was the one who predominantly provided the financial assets to the relationship. Again, this argument does not conform with relevant authorities in relation to contributions or in relation to the use of assets from the pool prior to a determination by the Court.
I accept and adopt the submissions given by Counsel for the Wife during the trial,[43] which lead me to accept in particular the contentions regarding the Wife’s post-separation contribution to her superannuation, which in fact, as Counsel noted, actually benefits the Husband.[44]
[43] See T 128 ff.
[44] See T 97 – 98.
Disposition
Accepting the matters noted by the High Court in Stanford, the Court is required still to consider, pursuant to s.79(2) of the Act, whether the orders proposed are, in all the circumstances, just and equitable. Although noted now at the end of these reasons, it will be recalled that in the light of Stanford, Bevan and Chapman, mentioned earlier in these reasons, the requirements of s.79(2) have “permeated” the Court’s consideration of all the requirements of the Act relevant to altering property interests between the parties.[45]
[45] “Permeate” is the Full Court’s term, cited in Bevan v Bevan at [62] from the earlier decision in Martin v Newton (2011) 47 Fam LR 1 at [306]. See also the detailed discussion by Murphy J in Watson & Ling (2013) FLC ¶93-527.
I recall too the comment of Wilson J in Mallet v Mallet, where his Honour said, at CLR p.638:
The objective of the section [s.79] is not to equalise the financial strengths of the parties. It is to empower the court, following a dissolution of a marriage, to effect a re-distribution of the property of the parties if it be just and equitable to do so having regard, inter alia, to the respective contributions of the parties.
In the circumstances of the current matter, especially the long marital relationship, and the submissions of the Husband in particular, it is important to set out at a little length the comments from the majority judgment (Fogarty & Lindenmayer JJ) in Kennon to which I have earlier referred, and their Honours’ endorsement of comments from the decision in Waters & Jurek.[46] At Fam LR pp.30 & 31, their Honours said (internal citations generally omitted):
Marriage involves a myriad of matters, large and small, which go to make up that union and differentiate it from more casual, transitory relationships. It involves sharing the minutiae of daily life, support during good and bad times, care and intimacy. These and other matters are intended to be encompassed by the matters in s.79, the actual balance of those components varying from marriage to marriage. Essentially it is an intimate sharing of mutual but diverse talents for their joint benefit.
Although Waters’ case was concerned with a different type of case and essentially different issues, the following general statement at 82,379, has with some adaptations, broad application here to the issues of contributions and s.75(2) factors:-
“In most marriages, there is a division of roles, duties and responsibilities between the parties. As part of their union, the parties choose to live in a way which will advance their interests - as individuals and as a partnership. The parties make different contributions to the marriage, which the law recognizes cannot simply be assessed in monetary terms or to the extent that they have financial consequences. Homemaker contributions are to be given as much weight as those of the primary breadwinner.
On separation, the partnership, and the division of roles and responsibilities which it produced, comes to an end. Individually, the parties are left largely in the personal situations that the marriage has assigned to them. However, the world outside the marriage does not recognize some of the activities that within the marriage used to be regarded as valuable contributions. Home-maker contributions, for example, are no longer financially equal to those of the breadwinner. Post-separation, the party who had assumed the less financially rewarded responsibilities of the marriage is at an immediate disadvantage. Yet that party often cannot simply turn to more financially rewarding activities. Often, opportunities to do so are no longer open, or, if they are, time is required before they can be accessed and acted upon.
When the marriage ends, especially where that marriage has been a long one, one cannot separate the parties as individuals from the people they became in the context of the marriage relationship, and the allocation of roles, duties and responsibilities which it entailed. In some cases, an adjustment is called for because it would be unjust for the roles and activities of a party, which were recognized until separation, and which largely determined or influenced the personal development of that party and the arrangements between the parties, to suddenly count for little, while those of the other party, which were of equal significance during the marriage, to now have a far greater financial impact outside the home - in circumstances where it was the joint decision of the parties that that be the way in which they would conduct their affairs, and where that decision was made in the expectation of the relationship continuing.
An order under s.79 would be unjust and inequitable in its operation if it failed to address the manner in which the value of the parties' roles, adopted in the course of, and for the purposes of, the marriage, can be altered by the fact of separation. Those roles can be instantaneously converted into liabilities. The equality of the parties' positions is terminated.”
[46] In the Marriage of Waters and Jurek (1995) 20 Fam LR 190.
Respectfully, these comments from the Full Court properly apply to the Court’s determination in the current matter.
In my view, having regard to all of the evidence (somewhat limited and circumscribed as it was – with really very limited cross-examination and significant gaps, notably on the Husband’s side), and in particular having regard to the very significant length of the relationship recorded at the outset of these reasons, the orders sought by the Wife should be made because they are just and equitable in accordance with the Act and with the authorities to which I have referred.
The Court so orders.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 6 February 2015
0
12
2