DUNES and SAUNDERS
[2018] FCWA 239
•30 NOVEMBER 2018
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: DUNES and SAUNDERS [2018] FCWA 239
CORAM: O'BRIEN J
HEARD: 12 & 13 SEPTEMBER 2018
DELIVERED : 30 NOVEMBER 2018
FILE NO/S: PTW 668 of 2017
BETWEEN: MS DUNES
Applicant
AND
MR SAUNDERS
Respondent
AND
MS GANDER
Intervener
Catchwords:
FAMILY LAW – DE FACTO PROPERTY SETTLEMENT – Where parties concede there is an outstanding debt to the Intervener but disagree as to by whom it should be paid - Where value of business interests in dispute – Where the applicant sought the respondent access his superannuation to discharge the debt secured by mortgage against the home – Where an assessment of contributions favoured the respondent – Where factors considered pursuant to s 205ZG (4)(d) to (g) inclusive favour the applicant – Where the respondent's superannuation interests are significant and superannuation splitting is not available to the parties - Order sought for ongoing maintenance – Where no evidence of any substance was adduced at trial in relation to that issue - turns on its own facts.
Legislation:
Family Court Act 1997 (WA), s 205 s 207
Superannuation Industry (Supervision) Regulations 1994 (Cth) Reg 22
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Self-Represented Litigant |
| Respondent | : | Self-Represented Litigant |
| Intervener | : | Self-Represented Litigant |
Solicitors:
| Applicant | : | Self-Represented Litigant |
| Respondent | : | Self-Represented Litigant |
| Intervener | : | Self-Represented Litigant |
Case(s) referred to in decision(s):
Khademollah v Khademollah (2000) FLC 93-050
Mackah v Mackah [2017] FamCAFC 62
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1[Ms Dunes] and [Mr Saunders] were in a de facto relationship. The intervener, [Ms Gander] is Mr Saunders’ sister. Her involvement in the proceedings arises in circumstances where money she inherited was, at her request, held by the parties but was not returned.
2The principal parties have been unable to resolve the division of their property and a claim by Ms Dunes for ongoing maintenance. While it is apparent that there are disputes between them in relation to the parenting arrangements for their three children and child support issues, those matters were not before the Court for determination.
Background
3Ms Dunes was born in 1974. She has a background working in [music], but presently works part-time in a [café] and also operates from home a small business making [art].
4Mr Saunders was born in 1962. For many years, he was a [security guard]. After leaving the [security industry] he operated a business known as [Business A]. That business was later sold. As outlined in more detail below, he then purchased a half interest in [Shop A], which he retains. He does not work in Shop A, which is operated on a day-to-day basis under the direction of his business partner [Mr D]. In addition to his interest in the shop, Mr Saunders is employed full-time [in another occupation].
5The parties met in 2003 and began living together prior to the birth of their first child in 2005. [In] 2012, they celebrated their relationship in a ceremony in [Country A]. It is common ground that they did not take the necessary steps to solemnise a marriage which would be recognised in Australia.
6The parties have three children, [Child A], born [in] 2005, [Child B], born [in] 2006, and [Child C], born [in] 2010. The children live primarily with Ms Dunes and spend time with Mr Saunders.
7The parties separated in June 2015 and have not resumed cohabitation. Ms Dunes continues to live with the children in the family home (“the home”).
8Shop A is operated by [Company A]. Mr Saunders owns 49 of the 98 ordinary shares issued in the company. The other 49 shares, and two class A shares, are owned by a company controlled by Mr D.
9[Family Trust A] was established in May 2008. Mr Saunders is the trustee, and the parties are joint appointors.
10Ms Dunes’ art business is operated by [Company B]. She is the sole director and shareholder of that company. Company B is the trustee of [Family Trust B], which was established in April 2015.
11It is common ground between the parties that Mr Saunders should retain his interest in the company, and control of the Family Trust A, and that Ms Dunes should retain her interest in Company B and control of the Family Trust B.
History of the proceedings
12The proceedings were commenced by application filed by Ms Dunes on 30 January 2017. In that application, she sought the transfer to her of the home, on the basis that she would refinance into her sole name the debt secured by mortgage against it. She otherwise sought a payment in the sum of $20,000, the division of money in joint bank accounts, transfer to her of a motor car, and maintenance for herself in the sum of $1,356 per week for a period of 24 months.
13In his response filed on 17 March 2017, Mr Saunders also proposed the transfer of the home to Ms Dunes on the basis that she refinance the mortgage debt, but on the basis that Ms Dunes pay him $150,000. He agreed that the motorcar should be transferred into Ms Dunes’ sole name and proposed the same division of the joint bank accounts as that proposed by Ms Dunes with one important difference; he proposed that the sum of $70,326 be repaid to Ms Gander. He sought the dismissal of the maintenance application.
14On 14 June 2017, an order was made by consent restraining Mr Saunders from dealing with or further encumbering the home. Interim orders were also made requiring him to pay maintenance to Ms Dunes in the sum of $100 per week, and to pay the mortgage instalments on the home or, if not required by the bank to do so, an additional $100 per week to Ms Dunes.
15On 7 March 2018, Ms Gander was given leave to intervene in the proceedings. She filed a response on 6 April 2018, seeking that the amount of $70,326 then available to be drawn from a bank account in the joint names of the principal parties be released to her.
16On 7 May 2018, [Mr F] was appointed as Single Expert Witness (“SEW”) in the case in relation to the issue of the value of Mr Saunders’ interest in Shop A. At that point, the proceedings were already listed for a trial to commence on 8 June 2018. That trial listing was vacated. The matter then progressed to a trial before me as quickly as the Court could accommodate.
Relief sought by the parties at trial
17By the time of trial, Ms Dunes sought the transfer to her of the home, unencumbered. She proposed that Mr Saunders pay out the mortgage debt “from his available superannuation”. She sought to retain the [Motor Vehicle A] and proposed a different division of the monies in bank accounts than previously proposed; she sought that the entire balance of one account be paid to [College A] for school fees for Child A. She sought that Mr Saunders be responsible “for paying [Ms Gander] her $70,000”, and maintenance “based on amounts on Form 13”. When I pressed her for more precision in that regard, she confirmed that she sought an ongoing maintenance order in the sum of $100 per week.
18Mr Saunders sought orders for the transfer of the home to Ms Dunes, but on the basis that she indemnify him in relation to the existing debt secured by mortgage and pay him the sum of $290,000. He agreed that the Motor Vehicle A should be transferred to her. He proposed that from the bank accounts the sum of $70,326 be paid to Ms Gander, and that any balance then remaining be paid to Ms Dunes. He otherwise proposed various consequential orders, the discharge of the interim maintenance order, and the dismissal of the maintenance application.
19Ms Gander simply sought to be paid the sum of $70,326.
Matters not in issue
20At the commencement of the trial, I sought to clarify the position of Ms Dunes in relation to the amount allegedly owed to Ms Gander. As it transpired, the parties all agreed that the amount of $70,326 was owed to Ms Gander by Ms Dunes and Mr Saunders. The only dispute in that regard is simply stated; Mr Saunders asserted that the liability to Ms Gander should be repaid before the division between the principal parties of the remaining property, while Ms Dunes asserted that what she would regard as her property entitlements should not be reduced in any way by that liability and that Mr Saunders should be entirely responsible for it.
21That matter having been clarified, both Ms Dunes and Mr Saunders confirmed that they did not seek to cross-examine Ms Gander. As Ms Gander is in very poor health, they both sensibly agreed that she need not actively participate in the trial and she was excused from further attendance.
22The parties were also able to agree certain values and amounts of liabilities, as detailed further below.
The parties as self-represented litigants
23All three parties were self-represented.
24At the commencement of the trial, I explained to them various matters so as to ensure that they properly understood the process.
25I explained the steps that I was required to take to ensure procedural fairness. I informed the parties of the manner in which the trial was to proceed, the order in which they would give their evidence and make submissions, and their right to cross-examine.
26I explained the importance of cross-examination and the likelihood that relevant evidence that was not challenged in cross-examination would be accepted.
27I explained that they would be permitted to give updating evidence-in-chief as to facts arising after the date on which their trial affidavits were sworn, and I explained the nature and purpose of re-examination.
28The parties had received copies of the handbook for self-represented litigants produced by the Court and had, by that process, had the relevant law drawn to their attention.
29I also explained my obligation to attempt to clarify the substance of their submissions so as to ensure that I properly understood their cases as they wished them to be put.
30I am satisfied that the trial proceeded in a manner which afforded procedural fairness to all parties.
31Another issue arose at the commencement of the trial. In her very late filed trial affidavit, and again in her papers for the judge, Ms Dunes included detailed information as to negotiations undertaken by the parties, including at a conciliation conference, and detail of privileged offers of settlement which had been made by Mr Saunders. I explained clearly to Mr Saunders the issues arising from that. In particular, I explained to him the principle of apprehended bias and his right to seek an order that I recuse myself to avoid any possible perception that my determination of the case might have been influenced by my exposure to the material inappropriately included in Ms Dunes’ documents, which I had read. I stood the matter down to afford him time to consider those issues. After taking that opportunity, Mr Saunders indicated to me that while he understood the matters raised, he did not propose to seek an order that I recuse myself, and strongly preferred that the trial proceed. The offending portions of Ms Dunes’ affidavit were struck out and I caused the offending portion of her papers for the judge to be redacted.
The law
32The parties were not married. The proceedings therefore fall to be determined pursuant to the provisions of the Family Court Act 1997 (WA) (“the Act”).
33The Court has a wide discretion conferred by s 205ZG(1) of the Act. That discretion must be exercised in accordance with legal principle, and without assuming that the parties’ interests in assets are or should be different from those determined by common law and equity.
34The Court must be satisfied that it is just and equitable to make an order adjusting existing property interests. That requirement is readily satisfied in most cases, including this one, but cannot be assumed. In determining what orders will be just and equitable, the Court’s power is not confined by any “steps” or “stages”. Having said that, a court will satisfy the legislative requirements if it identifies and values the assets and liabilities of the parties (to the extent the evidence permits), takes into account their respective contributions (including contributions to any assets which have ceased to be owned by them), assesses the factors in s 205ZG(4)(d) to (g) of the Act (to the extent they are relevant), and considers whether the proposed orders are just and equitable.
35The Court is required to consider the respective contributions of the parties, both financial and non-financial, holistically over the whole period to trial. That does not lend itself (other than in an atypical case) to a strictly mathematical approach. The holistic approach to the assessment of contributions accommodates the wide range of factual scenarios dealt with by the Court.
36There is no presumption that, even over the course of a long relationship, the contributions of the parties are to be regarded as having been equal. There is no requirement for an entirely discrete consideration of the impact of initial financial contributions, nor that the contributions of the parties be quantified at a particular past moment in time, whether by reference to the date of commencement of cohabitation or, for that matter, the date of separation.
37Nothing in the Act requires the Court to express in percentage terms its assessment of contributions, or its assessment of the factors in s 202ZG(4)(d) to (g), although that is often convenient and practical. Similarly, nothing in the Act requires the Court to allocate a percentage entitlement of the property to each party.
38The law does not currently permit superannuation entitlements of parties to a de facto relationship to be split so as to effect an alteration of those interests.
39While she did not seek a superannuation splitting order, Ms Dunes sought an order compelling Mr Saunders to access his superannuation and to apply the proceeds to the discharge of the debt secured by mortgage against the home. As the Full Court made clear in Mackah v Mackah [2017] FamCAFC 62, such an order cannot be made, as to do so would compel a breach of Reg 6.22 of the Superannuation Industry (Supervision) Regulations 1994 (Cth).
40The right of a de facto spouse to maintenance is defined by the provisions of s 205ZC and the matters to be taken into consideration in relation to spousal maintenance are set out in s 205ZD of the Act.
41Section 205ZC(1) provides that a potential liability to pay spousal maintenance arises only if the party seeking maintenance “is unable to support herself or himself adequately… having regard to any relevant matter referred to in s 205ZD(3)”. That liability is crystalised by the making of an order under s 205ZD(1) of the Act which permits the Court to make “such order as it considers proper”. In exercising the power conferred by s 205ZD(1) of the Act, the Court is obliged to take into account only the matters referred to in s 205ZD(3) of the Act.
The evidence relied upon by the parties
42Ms Dunes relied on her trial affidavit filed on 27 August 2018, and her financial statement filed on 5 September 2018.
43Mr Saunders relied on his trial affidavit filed on 17 May 2018, and his financial statement filed on 31 August 2018.
44Ms Gander relied on her affidavit filed on 16 February 2018.
45The SEW prepared a report produced on 8 June 2018 and annexed to an affidavit filed on 6 September 2018.
46As noted above, neither of the principal parties required Ms Gander for cross-examination. Both cross-examined the SEW, and each cross-examined the other.
Observations as to the evidence at trial
47Both parties, in my view, endeavoured to give their evidence honestly, although Ms Dunes in particular demonstrated an occasional tendency to adjust her recollection to meet present perceived needs. Ms Dunes also demonstrated a level of distrust of Mr Saunders, asserting that he had not given adequate disclosure in circumstances where the evidence did not support that assertion. In making those observations, however, I acknowledge the understandable difficulty faced by self-represented litigants in being cross-examined by their former partners.
48Nothing turns on any assessment of the credibility of the parties in any event, other than in one respect. It was clear, and, in fairness, not disputed by Ms Dunes, that of the principal parties Mr Saunders paid closer attention to financial matters and in particular to the various bank accounts. Where the balances of various accounts, or current balances of liabilities, were not agreed despite the ease with which they could have been vouched for the purposes of trial, I prefer the evidence of Mr Saunders.
49The SEW gave his evidence in a considered and professional manner. As appears below, he was presented with significant additional information very late in the piece and readily acknowledged that his opinion as to the value of Mr Saunders’ interest in the business altered as a result. He was challenged on his original position by Ms Dunes, and on his amended position by Mr Saunders, but answered all questions in a straightforward and open manner, taking some trouble to explain his thinking to the parties and to me. Neither principal party suggested that he was other than a credible witness, and I agree with their assessment in that regard.
The existing interests of the parties in property and superannuation, and the extent of their liabilities
50A number of relevant values, and amounts of liabilities, were agreed. Those agreed figures are incorporated in the table set out below.
51Where relevant matters were not agreed, the respective positions of the parties and my findings are set out below, and the results of my findings also appear in the table.
52Where values were in dispute, and neither party adduced admissible evidence in relation to them, I have adopted the lower asserted value: Khademollah v Khademollah (2000) FLC 93-050.
The home
53Ms Dunes asserted that the home is worth $680,000. Mr Saunders asserted that the home is worth $690,000. Neither adduced any admissible evidence in relation to that issue. I adopt the lower value.
Lawnmowing/gardening equipment retained by Mr Saunders
54Ms Dunes asserted that these items had a value of $3,000. Mr Saunders asserted a value of $1,000. Neither adduced any admissible evidence in relation to the issue, and I adopt the lower value.
Road bikes in the possession of Mr Saunders
55There was a trivial dispute about this value, with Ms Dunes asserting a value of $5,100, and Mr Saunders (in his schedule at least) conceding a value of $5,000. Mr Saunders had on 31 August 2018 filed a notice to admit facts calling on Ms Dunes to admit the value at $5,100. I propose to adopt that figure.
Motor Vehicle A retained by Ms Dunes
56Ms Dunes asserted a value of $11,000 for the car. Mr Saunders asserted a value of $14,000. In the absence of admissible evidence, I adopt the lower value.
Joint ANZ accounts
57Mr Saunders’ evidence as to the balances of various joint ANZ accounts at trial was unchallenged, and I accept it.
Other accounts and the home loan
58Similarly, the evidence of Mr Saunders as to the balance of the home loan and various accounts in the individual names of the parties or entities controlled by them, which was based on updated disclosure, was unchallenged. As earlier outlined, I regard Mr Saunders’ evidence in relation to matters of that nature as being more reliable than that of Ms Dunes. In the absence of independent evidence verifying the balance of the various accounts, I accept the evidence of Mr Saunders.
Legal fees
59Both parties owe money to lawyers who advised them or provided them with representation during the course of the proceedings. Ms Dunes owes lawyers $8,379. Mr Saunders owes lawyers $4,362. I do not propose to include either figure in the table of assets, liabilities and superannuation available for division between the parties, as to do so would potentially have the indirect consequence of one party subsidising the legal fees of the other. The starting point under the legislation is that each party meets his or her own legal costs. The only exception to that arises where, pursuant to s 237 of the Act, the Court determines that there are circumstances which justify an order for costs.
Accounting fees
60Both parties owe money to accountants. I accept that those expenses were properly incurred. In particular, I accept that the personal liability of Mr Saunders to his accountant (as distinct to any liability the business may have) was properly incurred, and that at least part of that expense was incurred for legitimate purposes to do with these proceedings, and to the direct benefit of both parties.
61I propose to include both parties’ liabilities to accountants in the table of assets, liabilities and superannuation available for division between them.
Child support arrears and Centrelink debt
62Mr Saunders asserts that he has a liability in the form of arrears of child support in the sum of $8,625. He asserts also that Ms Dunes has a liability in the form of a debt to Centrelink in the sum of $845. While I accept his evidence, I do not propose to include either figure in the table of assets, liabilities and superannuation available for division between the parties. Both are liabilities accrued by the individual parties post separation. Neither should be directly or indirectly responsible for the liability of the other. In the case of the child support arrears in particular, the reason for that is self-evident.
Ms Dunes’ business
63Ms Dunes operates an art business known as [Business B] from home. The business is owned by Company B as trustee for the Family Trust B. It is common ground that both entities are effectively controlled by Ms Dunes, that she should retain them, and that they have no relevant assets or liabilities other than the business itself. For simplicity, therefore, I propose to refer simply to Ms Dunes’ interest in the business.
64She asserted a value for that interest of $10,000. Mr Saunders asserted a value of $36,000. He conceded that there was no admissible evidence to support that assertion. I adopt the lower value, while also accepting the evidence of Mr Saunders as to the balance in an account controlled by Ms Dunes but in the name of Family Trust B.
Sale fees/costs
65Mr Saunders included in his materials a figure of $7,500 for anticipated costs of his proposed sale of the home. Whether or not the home is sold as a consequence of my orders, there is no present liability in that regard and I do not propose to include the figure in the table of assets, liabilities and superannuation available for division.
Mr Saunders’ personal loans
66In his financial statement sworn for the purposes of trial, Mr Saunders said that he owes his sister [Ms J] the sum of $17,000 loaned to him to pay out a credit card, and a friend [Mr O] $3,000. Neither gave evidence. In cross-examination, Mr Saunders acknowledged that the borrowing from his sister was to pay off credit card debt accumulated post separation, in circumstances where he travelled on a number of occasions for holidays over a period of two years. There was no evidence as to the purpose of the borrowing from Mr O.
67I accept the evidence of Mr Saunders that he owes the amounts claimed. I do not, however, propose to include the figures in the table of assets, liabilities and superannuation available for division between the parties. Post separation debt incurred by Mr Saunders for his own purposes should remain his responsibility. I will, however, take the liabilities into account in my overall assessment of his financial circumstances for the purposes of s 205ZD(3).
Superannuation
68While the figures were not formally agreed, I accept the evidence of each party as to their respective superannuation entitlements.
Mr Saunders’ business interests
69The value of Mr Saunders’ interest in Shop A was in issue at trial.
70The SEW had provided a report dated 8 June 2018, annexed to his affidavit sworn the same day. In that report, he adopted a methodology whereby he capitalised future maintainable earnings to determine the fair market value of the business. To the sum achieved by that process he added the value of any net surplus assets, and deducted financial liabilities. He identified the relevant strengths, weaknesses and opportunities of the business. He noted also what he described as “threats” to the business; apart from the likelihood of increased future competition, those threats related primarily to the aftermath of unauthorised drawings from the business by Mr D, and his unauthorised use of the company credit card for personal purposes.
71Neither party challenged the expertise of the SEW or his methodology. It was clear from his report that he had been provided with very detailed information by Mr Saunders, who appropriately cooperated in the process.
72Part of the difficulty encountered by the parties, however, arose innocently enough from an unfortunate coincidence of timing.
73Shop A is located in a shopping centre in [Suburb A]. It operated for some years from particular premises within that shopping centre. More recently, the owners of the shopping centre determined to make a significant investment in the expansion and upgrade of it. The opportunity was presented for Shop A to be moved within the centre to bigger, and significantly upgraded, premises. Mr Saunders and Mr D decided to take up that opportunity.
74The SEW report for the purposes of trial addressed the value of Mr Saunders’ interest in the business as at 31 May 2018. The expert determined the fair market value of the business at approximately $305,455 at that point in time. He then took into account surplus assets in the company totalling $236,588 and financial liabilities in the amount of $454,278. That calculation resulted in a determination that the fair market value of the business was $87,765 at that point in time. The value of Mr Saunders’ share was determined as being $43,882.
75The timing difficulty may be simply explained. As at 31 May 2018, the business had taken on significant liabilities for the purpose of the refurbishment involved in moving into the new, superior premises but had not yet moved. In other words, at that moment in time, the whole of the liability associated with the move had been taken on, but there was no data to demonstrate any associated benefit arising from the move.
76By the time of trial, the business had moved. The SEW was provided with performance data for the business for the admittedly short period following the move. He considered that data against the background of the data already available to him about the historical performance of the business in the old premises, and reviewed the opinion expressed by him in his written report.
77Appropriately, given the small sample available to him about the performance of the business following the move, he cross-checked his calculations by eliminating from his earlier report the effect of the financial liability associated exclusively with the move. The result of that approach was almost identical to the result achieved by reference to his review of the updated performance data.
78At the conclusion of that process, the SEW valued Mr Saunders’ interest in the business at $222,831.
79His conclusions in that regard were not challenged by Ms Dunes either in cross-examination or in submissions. While Mr Saunders was understandably somewhat taken aback by the changed outcome of the valuation, in his closing submissions, he accepted the updated opinion of the witness, while expressing views (to which I will return) as to the practical value to him of the business in circumstances where he would assert that he cannot sell his interest.
80I conclude that the value of Mr Saunders’ interest in the business, represented by his shareholding in the company, is $222,831.
81The results of my various findings, and those matters which were agreed, are set out in the table below.
Item description Ownership/liability Value/amount Joint assets [The Home] Joint $680,000 Furniture in possession of [Ms Dunes] Joint $7500 Furniture in possession of [Mr Saunders] Joint $7500 Lawnmowing/gardening equipment in possession of [Mr Saunders] Joint $1000 Bicycles in the possession of [Mr Saunders] Joint $5100 [Motor Vehicle A] in the possession of [Ms Dunes] Joint $11,000 [Interest Saver Account] Joint $73,119 [Advantage Access] Account * Joint $14 [V2 Plus Account] Joint $86 [Progress Saver Account] Joint $3345 Subtotal joint property $788,664 Joint liabilities Home loan Joint $115,356 Monies owed to [Ms Gander] Joint $70,326 Subtotal joint liabilities $185,682 Subtotal net joint property $602,982 [Ms Dunes]’ property Lloyds [Account] [Ms Dunes] $619 ANZ [Account] [Ms Dunes] $559 Interest in [Business B] Trust $10,000 [Business B] ANZ [Account] (trust) Trust $1882 Subtotal [Ms Dune]’s property $13,060 [Ms Dunes]’ liabilities Debt to mother [Ms Dunes] $2000 Debt to accountant [Ms Dunes] $2121 Subtotal [Ms Dunes]’ liabilities $4121 Subtotal [Ms Dunes]’ net property $8939 [Ms Dunes]’ superannuation [Superannuation 1] [Ms Dunes] $51,520 [Mr Saunders]’ property ANZ Account [Mr Saunders] $2500 Interest in the company [Mr Saunders] $222,831 Subtotal [Mr Saunders]’ property $225,331 [Mr Saunders]’ liabilities Debt to accountant [Mr Saunders] $11,777 Subtotal [Mr Saunders]’ net property $213,554 Mr Saunders’ superannuation [Superannuation 2] [Mr Saunders] $498,859 [Superannuation 3] [Mr Saunders] $1293 [Superannuation 4] [Mr Saunders] $20,820 Subtotal [Mr Saunders]’ superannuation $520,972 82Leaving aside the joint accounts, the debt to Ms Gander and the jointly owned home, and its associated liability, Ms Dunes has in her possession or control property to the net value of $27,439 after liabilities are taken into account. She has superannuation to the value of $51,520.
83Leaving aside the joint accounts, the debt to Ms Gander and the jointly owned home, and its associated liability, Mr Saunders has in his possession or control property to the net value of $227,154. He has superannuation to the value of $520,972.
84The parties have equity in the home of approximately $564,644. They have joint bank accounts totalling $76,564. They owe Ms Gander $70,326.
85The legal and equitable interests of the parties in property, after deduction of all relevant liabilities, total $755,149. Their interests in superannuation total $572,492.
Contributions
86Both parties made initial financial contributions at the commencement of the relationship.
87Before the parties met, Ms Dunes had purchased a property in [State A] in her sole name. In her affidavit, she said that the property was purchased for $125,000, of which she paid a deposit of “about $90,000”, borrowing the balance from [Bank A].
88In her papers for the judge, Ms Dunes asserted that the deposit paid was $55,000. In any event, the property was sold in or about June 2005. Ms Dunes says that she received just over $104,000 at settlement. Her evidence in that regard was not seriously challenged in substance, albeit it was confused. She expressed herself to be certain of the figure which she gave. When asked how she could be so certain, she referred to the bank loan statement which was annexure 3 to her trial affidavit as demonstrating the amount required to discharge the loan on settlement of sale. When Mr Saunders pointed out that the State A property had been sold in May 2005, and the bank statement referred to showed a loan account being closed on 5 March 2008, Ms Dunes acknowledged her error.
89In the end result, little turns on that confusion. In his own trial affidavit, Mr Saunders estimates that at the commencement of cohabitation Ms Dunes had equity in the State A property of approximately $100,000.
90In August 2004, after moving to Western Australia, Ms Dunes purchased a unit [in Suburb B]. On her evidence, she paid only a modest deposit, and otherwise financed the purchase through borrowings. That property was sold in early 2008 for $380,000, realising net proceeds of $181,614.
91Ms Dunes had been employed prior to the relationship and it is likely that she had accumulated superannuation entitlements as a result. There was no evidence to enable me to quantify that contribution on her part.
92Mr Saunders gave detailed evidence as to his own initial financial contributions. That evidence was unchallenged in cross-examination.
93At the commencement of the relationship, he owned a property in [Suburb C]. That property was sold in December 2005, at an early stage of the parties’ relationship, for $495,000. The net amount available after discharge of the mortgage, adjustment of rates and taxes, and payment of expenses associated with the sale was approximately $330,000.
94Mr Saunders gave evidence that at the commencement of cohabitation he had savings of approximately $30,000, shares to the value of approximately $25,000, and a car worth about $25,000. He was unchallenged on that evidence and I accept it.
95Similarly, he gave evidence that at the commencement of cohabitation the balance in his superannuation accounts were approximately $231,000. Again, he was unchallenged on that evidence and I accept it.
96In December 2008, Mr Saunders received an amount of $11,115 by way of damages for an injury received in a motor vehicle accident. That money was applied to the joint benefit of the parties and their children.
97Mr Saunders’ mother died in 2011. For several years prior to her death, the parties had the financial benefit of a sum of approximately $102,000 being held on her behalf in accounts offset against their mortgage liability, reducing their interest payments. The sum held increased over time.
98Probate was granted on the will of Mr Saunders’ mother in April 2013. The money which had been held by the parties on her account was disbursed to the beneficiaries of her will, including Mr Saunders. He retained the sum of $34,673. He received a further $6,000 from his mother’s savings in May 2013, and a further $61,291 in October 2013 once his mother’s property was sold. All the monies received by Mr Saunders by way of inheritance were applied to the benefit of the parties and the children.
99Over the course of the relationship, Mr Saunders worked initially as a security guard, and subsequently in businesses in which he had an interest. On his own evidence, he worked very long hours, by way of example describing one of the businesses as “all consuming in terms of hours” leading to him “rarely” seeing Ms Dunes and the children. After the sale of the Business A, he took time out for approximately six months before resuming employment.
100Ms Dunes was, throughout the relationship, primarily responsible for all the duties associated with being a homemaker and parent. Self-evidently, the long hours worked by Mr Saunders reduced his availability to make contributions in that role, and increased the burden on Ms Dunes.
101Both parties otherwise contributed to the best of their abilities in a non-financial sense.
102The contribution of a party to the welfare of the family, and specifically as a homemaker and parent, must be acknowledged as having real meaning and weight. There is no doubt that both of these parties worked hard in their respective roles, to their mutual benefit and that of their children. To the extent that Ms Dunes criticised Mr Saunders for his unavailability to the children, and Mr Saunders criticised Ms Dunes for not returning to work during the relationship, and for her efforts in her small business once she did, those criticisms are misplaced and have no effect on the appropriate determination of the proceedings.
103Since separation, both parties have continued to make contributions. Each has criticisms of the other. In particular, there is a dispute between them about the payment of private school fees and child support issues more generally. That said, Ms Dunes has continued to have the benefit of the occupation of the home since separation. I do not regard the disputes between the parties as to their respective efforts post separation as having any significant impact on the assessment of their contributions overall.
104Were it not for the disparity in their initial financial contributions, and the additional financial contributions made by Mr Saunders in the form of his inheritance and damages claim, I would readily conclude that the respective contributions of the parties overall to the time of trial should be assessed as being equal.
105The factors just referred to, however, are significant. While both parties contributed initial capital to their joint acquisition of property, they did so in the proportions of approximately 80% by Mr Saunders and 20% by Ms Dunes. Approximately 40% of the superannuation presently available to the parties was initially contributed by Mr Saunders, who made the additional financial contributions of his inheritance and modest damages claim. The impact of the respective initial contributions in particular of the parties must be considered not only in the context of a holistic assessment of their contributions overall, but by reference to the amount of those contributions as a proportion of the property and superannuation now available to them.
106Doing the best that I can on the evidence presented, I assess the respective contributions of the parties over the entirety of their relationship up to the time of trial in the proportions of 65% to Mr Saunders and 35% Ms Dunes.
Matters required to be considered pursuant to s 205ZG(4)(d) to (g)
107Both parties are in good health. Ms Dunes earns a modest income only from the work which she undertakes from home, although she acknowledged that her earning capacity is likely to increase over time. Mr Saunders is employed full-time earning a salary of approximately $85,000 per annum. In addition, he has an entitlement to income from Shop A, although I acknowledge his evidence that, currently at least, cash flow issues in the business mean that he receives little from it. Regardless of the forward path of that business, his earning capacity significantly exceeds that of Ms Dunes. Both parties have various liabilities as earlier noted.
108Mr Saunders urged me to take into account what he argued was the inappropriate disposition by Ms Dunes of monies received by her from the sale of a component of her business. I decline to do so. Ms Dunes’ evidence that the monies received were used for support of herself and the children at a time when they were receiving minimal support from Mr Saunders, and she was earning minimal income, was effectively unchallenged.
109Ms Dunes has the primary care of the children. That said, while I acknowledge that there is presently a dispute between the parties, it is to be anticipated that Mr Saunders will pay appropriate child support.
110Both parties have fairly typical commitments to support themselves and the children. Neither has a relevant responsibility to support any other person. Neither is cohabiting with another adult. Ms Dunes has a modest entitlement to government benefits.
111The parties enjoyed a comfortable standard of living during their relationship and it is appropriate that, to the extent possible, they both continue to do so.
112I am required to take into account the effect of any proposed order on the ability of a creditor to recover his or her debt. I intend to make orders to ensure that Ms Gander is paid the money owed to her. Frankly, the parties should have attended to that a long time ago.
113It is appropriate to have regard to Ms Dunes’ desire to continue in her role as a parent.
114It is also appropriate to have regard to the particular circumstances in which the parties find themselves by virtue of the present inability of separating de facto spouses in Western Australia to split superannuation entitlements. There is a significant disparity between the respective superannuation entitlements of the parties. On any scenario, Mr Saunders will have no option but to retain as a significant proportion of his overall entitlement the whole of his superannuation. Understandably, he points to that as a matter to be taken into account given the desire of both parties to accommodate themselves other than by renting.
115I acknowledge also the opinion expressed by Mr Saunders that his interest in the business has no “real” value to him as, in his view, he cannot sell it. While his interest in the business clearly does have a “real” value, I acknowledge that the value is ongoing rather than immediately liquid.
116That said, an overall consideration of the factors required to be taken into account pursuant to s 205ZG(4)(d) to (g) must favour Ms Dunes.
117Taking all those matters into account, I conclude that a just and equitable outcome overall is reached by:
(a)each party retaining their own superannuation and the chattels in their possession;
(b)Mr Saunders retaining his interest in the business;
(c)Ms Dunes retaining the monies in joint accounts;
(d)Ms Dunes retaining the home, subject to the mortgage debt; and
(e)each party retaining responsibility for their personal liabilities.
118By that process, Mr Saunders will retain property to the value of $238,931 and superannuation to the value of $520,972, with responsibility for liabilities totalling $11,777. Ms Dunes will retain property to the value of $717,798 and superannuation to the value of $51,520, with responsibility for liabilities totalling $189,803.
119I regard that as a just and equitable outcome in all the circumstances.
The maintenance claim
120There is presently in force an interim order requiring Mr Saunders to pay Ms Dunes the sum of $100 per week. Mr Saunders seeks the discharge of that order. Ms Dunes seeks a final order in the same amount.
121No evidence of any substance was adduced at trial by either party in relation to this issue.
122In particular, Ms Dunes did not address the threshold question necessary to establish that she is unable to adequately support herself without maintenance.
123In any event, the evidence does not permit a conclusion that Mr Saunders is reasonably able to pay the amount sought on an ongoing basis, particularly after both the effect of my determination as to property issues, and his child support obligations, are taken into account. I note further that there was very limited evidence as to the reasonable needs and periodic expenses of each party, and that those matters were not explored at trial.
124Even had those matters been more adequately explored, I would not have considered it proper in all the circumstances to make an ongoing order for maintenance against the background of the proposed orders for alteration of property interests.
125The interim order for maintenance will be discharged, and the application for maintenance dismissed.
Proposed orders
126Subject to any submissions as to form, I propose to make the following orders:
1.Within 60 days, [Mr Saunders] do all things necessary to transfer to [Ms Dunes] all his right, title and interest in the [home];
2.Contemporaneously with the transfer of the home to [Ms Dunes], she do all things and sign all documents necessary to discharge the mortgage registered over the home, and to refinance the debt secured by that mortgage into her sole name.
3.[The parties do all things necessary to pay Ms Gander the sum of $70,326 from the Interest Saver Account].
4.[Mr Saunders] must promptly execute any documents required by [Ms Dunes] to be executed, and presented to him for that purpose, to facilitate the implementation of these orders.
5.[Ms Dunes] indemnify [Mr Saunders] and keep him indemnified in relation to all rates, taxes and outgoings with respect to the home.
6.The parties do all things and sign all documents required to close the joint bank accounts and pay the balance of the accounts to [Ms Dunes].
7.[Mr Saunders] do all things and sign all documents necessary to cause legal ownership of [Motor Vehicle A], in [Ms Dunes’] possession to be transferred to her.
8.[Ms Dunes] resign as an appointor of [Family Trust A];
9.The right, title and interest, if any, of [Mr Saunders] in the following vest in [Ms Dunes]:
(a)any interest [Mr Saunders] may have as a beneficiary of the [Family Trust B], including any unpaid entitlements;
(b)[Company B];
(c)all funds standing to the credit of [Ms Dunes] in any bank or other financial institution in her name;
(d)chattels not the subject of these Orders and in her possession; and
(e)her superannuation entitlements.
10.The right, title and interest, if any, of [Ms Dunes] in the following vest in [Mr Saunders]:
(a)[Company A];
(b)any interest [Ms Dunes] may have as a beneficiary of [Family Trust A], including any unpaid entitlements;
(c)all funds standing to the credit of [Mr Saunders] in any bank or other financial institution in his name;
(d)chattels not the subject of these Orders and in his possession; and
(e)his superannuation entitlements.
11.The parties otherwise indemnify each other and keep each other indemnified in relation to any liabilities in their sole name.
12.All outstanding applications and responses be and are hereby dismissed.
13.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.
14.In relation to material tendered as an exhibit into evidence in these proceedings:
(a)all parties must collect the exhibits tendered by them (“their exhibits”), from the Chambers of Justice O’Brien at least 28 days, and no later than 42 days, from today’s date;
(b)all parties must contact the Chambers of Justice O’Brien to arrange collection of their exhibits; and
(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
LH
ASSOCIATE30 NOVEMBER 2018
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