Durham & Durham

Case [2022] FedCFamC1F 511

Federal Circuit and Family Court of Australia

(DIVISION 1)

Durham & Durham [2022] FedCFamC1F 511

File number: SYC 9 of 2016
Judgment of: MCGUIRE J
Date of judgment: 11 August 2022
Catchwords: FAMILY LAW – PROPERTY – Section 79A Order by consent where the parties separated between 1992 and 1996 and entered into consent property orders – application by the husband filed January 2016 for orders under s 79A and s 79 of the Family Law Act 1975 (Cth) – contributions – holistic approach – one pool –“Kennon” argument where wife alleges family violence during the relationship – issue of date of separation - identification of the property pool – s 75(2) factors - net property pool divided 65 per cent to the wife and 35 per cent to the husband – wife’s spousal maintenance application out of time – requirement for leave pursuant to s 44(3) – considerations of hardship and exercise of discretion – application for leave refused
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 44(3), 44(4), 75(2), 79 and 79A

Cases cited:

Bevan & Bevan (2013) FLC 93 – 545

Briginshaw & Briginshaw (1938) 60 CLR 336

Clauson & Clauson (1995) FLC 92-595

Fielding & Nichol [2014] FCWA 77

Fox v Percy (2003) 214 CLR 118

Galea & Galea (1990) 19 NSWLR 263

Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143

In the marriage of Good v Good (1982) FLC 91-249

In the marriage of Woolley v Woolley (No.2) (1981) FLC 91-011

Keating & Keating (2019) FLC 93-894

Kennon v Kennon (1997) FLC 92-757

R v Watson; Ex parte Armstrong (1976) 136 CLR 248

Stanford & Stanford (2012) 247 CLR 108
Division: Division 1 First Instance
Number of paragraphs: 159
Date of last submission/s: 21 April 2022
Date of hearing: 14 and 15 October 2021 and 14 April 2022
Place: Hobart         Delivered Melbourne
Counsel for the Applicant: Mr Hogg
Solicitor for the Applicant: Orman Solicitors
Counsel for the Respondent: Mr Fowler
Solicitor for the Respondent: Russell C Byrnes Solicitor

ORDERS

SYC 9 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR DURHAM

Applicant
AND:

MS DURHAM

Respondent

order made by:

MCGUIRE J

DATE OF ORDER:

11 August 2022

THE COURT ORDERS THAT:

1.By consent pursuant to s 79A of the Family Law Act 1975 (Cth) the consent property orders made between the parties in the Family Court of Australia at Adelaide on 29 November 1994 be set aside.

2.The net property pool of the parties be distributed as to 65 per cent to the wife, Ms Durham, and 35 per cent to the husband, Mr Durham, in accordance with these Orders.

3.Within 14 days from the date of these Orders the parties do all acts and things and sign all documents required to simultaneously authorise and release the balance of the monies in the sum of $172,927 held upon trust for the parties by Orman Solicitors to the wife.

4.Within 60…

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Durham & Durham [2022] FedCFamC1F 511
Case
[2022] FedCFamC1F 511
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CaseChat Overview and Summary

The case of Durham & Durham involves a long-standing relationship between the husband and wife, who have been married since 1989. The parties have had a tumultuous relationship, marked by periods of separation and cohabitation. The case primarily deals with the division of assets acquired during the marriage, including real property, and the determination of spousal maintenance. The wife sought spousal maintenance, which was ultimately denied by the court. The legal issues before the court included determining the date of separation, the contributions of each party to the assets, and the fairness of the division of the property pool.

The court examined the evidence provided by both parties and considered the nature and quality of the contributions made by each party. The court found that the parties had separated in 2008, despite the husband's vague and uncertain evidence on the matter. The court determined that the husband had made significant unilateral financial decisions and transactions after the date of separation, indicating that the separation had occurred. The court also considered the contributions of each party to the assets, finding that the wife had made significant contributions, including savings and the purchase of properties. However, the court held that the wife was not entitled to spousal maintenance due to her ability to support herself and the lack of a clear need for such maintenance.

The court ordered the division of the property pool, awarding 65% to the wife and 35% to the husband. The wife was granted the property at 1 D Street, subject to its mortgage, and the husband was awarded other properties. The court also ordered a cash adjustment from the husband to the wife to ensure an equitable division of the assets. The court's decision was based on the evidence and the need to achieve a just and equitable outcome, considering the length of the relationship, the contributions of each party, and the current financial situation of the wife.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

I will make the requisite s 79A order by consent.BACKGROUND The husband was born in 1961 and is now aged 60 years. The wife was born in 1963 and is now aged 58 years. The parties first commenced cohabitation in about 1983 or 1985. Nothing of significance turns on this dispute. In 1986 the parties moved to City DD where the husband had obtained employment in real estate. In May 1987 the parties purchased a property at K Street, City DD for $71,000 borrowing $60,000 by way of mortgage and paying the balance from their joint savings. In 1988 the wife worked for approximately a year in Western Australia in hospitality and during such time she claims to have saved approximately $60,000. The wife returned to City DD in 1989. In 1989 the husband moved to South Australia to further his career in real estate. The wife left her then employment and joined him after three months. The parties were married in 1989. In April 1992 the parties purchased a property at M Street, City DD for $115,000 with the property being tenanted. The parties separated in 1992. In 1993 the wife says that she purchased a Motor Vehicle 3 for $30,000 from her savings and in 1994 purchased a motor home for $16,000. In late 1994 the parties were intimate albeit with the wife saying not by consent. The parties’ first child, Mr X, was conceived. On 29 November 1994 property orders were made by consent between the parties in the Family Court at Adelaide. Those orders provided inter alia for the wife to transfer her interest in the M Street, City DD property to the husband and the husband to transfer his interest in the K Street, City DD property to the wife. The implication in the evidence is that the parties benefited equally in the settlement. In December 1994 the wife purchased a property at Q Street, Suburb N, South Australia for $78,000 using part savings and part mortgage loan. In 1995 the child Mr X was born with the parties remaining separated at the time. In late 1995 the parties were again intimate during an encounter at EE Town with the wife again claiming no consent. The child Mr Y was conceived. The parties resumed cohabitation in late 1996 with the wife then moving to EE Town to live near the husband's parents so as to obtain assistance in caring for Mr X and Mr Y. The wife rented out her house at Suburb N. In June 1997 a property was purchased at P Street, EE Town for $135,000 assisted by a mortgage loan of $115,000. In 1998 the husband obtained rented accommodation at FF Town. In July 1998 the wife sold the property at K Street, City DD for $110,000. In 1998 the child Ms Z was born. In 1999 the parties purchased land at Suburb O, Victoria for E$86,000. In June 2000 the husband sold the property at M Street, City DD for $105,000. In 2001 the parties purchased a property at L Street, FF Town for $57,000. In early 2001 the wife sold her property at Suburb N, South Australia for $141,500 putting net proceeds of $80,000 – $90,000 towards the loan on the property at P Street, EE Town.

Evidence

Evidence Before The Court

The Court can “stand back” and consider the justice and equity of its proposed orders but where such justice and equity permeates the entire process.THE EVIDENCE The task for the Court to is to make findings of disputed fact involving issues of credit between the parties. To this end, s 140 of the Evidence Act 1995 (Cth) provides the standard of proof in civil proceedings as follows:(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:(a) the nature of the cause of action or defence; and(b) the nature of the subject-matter of the proceeding; and(c) the gravity of the matters alleged. Section 140 of the Evidence Act reflects the previous common law position being as to whether the Court is satisfied that an asserted fact is “more probable than not”. Dixon J in the well-known decision in Briginshaw v Briginshaw[7] stated: …when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality. … it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.[7] (1938) 60 CLR 336 at 361 – 362. The onus of proof of a fact sits with the party making the assertion of fact. That is, there is no onus on a party to prove a negative or to disapprove an assertion or allegation against him/her. In the matter now before me there are a multitude of disputed facts and issues of credit between the parties. As is common in this jurisdiction, each party seems keen to criticise the other but often without sufficient supporting or corroborative evidence with references being made to potential witnesses but where they have not been called or provided affidavits. As a result, of course, the prosecution of the case for each of the parties by their barristers is made more difficult and I should comment that each counsel in this matter provided admirable representation and advocacy for their respective clients. Without such corroborative evidence the issues of credit between the parties themselves assumes a greater importance in the fact - finding process but often being “word on word”. I do, however, have the distinct advantage of being able to see and hear each of the parties give their evidence together with any witnesses required for cross-examination. In Galea & Galea[8] Kirby ACJ considered the advantages available to a trial judge including the following: (a)The hearing of the evidence in its entirety.(b)Hearing and seeing all evidence in context, chronologically and logically advanced.(c)Having time during adjournments and during the running of the case to reflect upon the evidence and to weigh such evidence against all other evidence whilst fresh to the mind.(d)Hearing and seeing interruptions, hesitations and delays in the giving of testimony.(e)Observing body language sometimes important for interpreting communication.[8] (1990) 19 NSWLR 263.

Decision

Reasons for decision

Leave to bring the application for spousal maintenance is refused and the application is dismissed.CONCLUSION In respect of the s 79 alteration of property considerations I therefore intend to divide the value of the property pool as to 65 per cent to the wife and 35 per cent to the husband. The property pool has a net value of $1,163,602. I calculate, therefore, that the wife would receive value of $756,341. It is agreed that the wife will receive the balance of the “Orman” account at $172,927. From the balance sheet it is clear that the wife retains only the following: The wife is entitled to a further adjustment of $514,896 The wife's ambition is to retain the property at 1 D Street (“HH Company”). This property has an agreed value of $720,000. It is subject to a mortgage. In his trial affidavit at [25] the husband deposes:On 10 May 2007, “[HH Company]” at [1 D Street, City E] was purchased for $425,000. A mortgage was taken out with NAB to finance the purchase. I have only paid interest on the mortgage since its purchase in 2007. To the best of my knowledge, [the wife] did not contribute to the purchase. From the joint balance sheet, therefore, I infer that “HH Company” at 1 D Street is currently subject to a mortgage of $445,255. It may be that there are cross mortgages secured by both properties. The evidence is unclear in this respect. Inherent in the wife's argument to retain “HH Company” is her application that she be awarded spousal maintenance including “arrears”. As these Reasons disclose she has been unsuccessful in that application. Consequently, if the wife was to retain HH Company at $720,000 then she would also retain the mortgage liability ($445,255) giving her equity in the property at $274,745. She would therefore be retaining net $516,190 from the asset pool assuming she was to retain the total of the $172,927 held in trust. I calculate then a cash adjustment from the husband to the wife of $240,151. She may then, of course, be able to immediately reduce the mortgage liability by way of the amount held in trust coming to her in the sum of $172,927 plus cash adjustment of $240,151 leaving, on my calculations, a relatively small mortgage liability. I have no specific evidence of the wife’s borrowing capacity if any and/or whether she would still want to retain 1 D Street given that I have dismissed her spousal maintenance application. I proceed therefore on the basis that she does which to retain it. The husband argues against the wife retaining 1 D Street. He apparently does so on the basis of convenience and perhaps privacy where it is anticipated that he will retain the business at 2 D Street. This is not a persuasive argument against the wife being able to retain an asset of real property and one which might provide her with some small income from resurrecting the business previously operated primarily by her from that property. The husband’s proposed orders would leave him retaining 1 D Street. The evidence however, does not assist in it being productively utilised by him currently. I can find no evidence of any income to the husband from that property. Consequently, where both parties may wish to retain that property but where the husband will in any event be retaining one piece of income producing real property namely F Company, I am of the view that the wife should have first option on 1 D Street.

Ratio Decidendi

Legal Principle Established

In this matter the parties endured a lengthy relationship from 1983 albeit with at least one lengthy period of separation. They have been finally separated since at least 2015 and, on the husband's unchallenged divorce application, for considerably longer. There were assets, including real property, purchased by the parties together during the relationship and separately. There are three children of the marriage all now adult. Each of the parties claims contributions to the assets. The content of the property pool as it now sits rests mainly in the hands of the husband including significant parcels of real property. The parties are divorced and the husband has remarried. In all of these circumstances I am easily satisfied that it is just and equitable to enter into the consideration of altering the parties’ interests in the contents of the property pool. THE DATE OF SEPARATION The date of separation seems not agreed between the parties despite the husband's divorce application not being challenged. The parties were divorced in June 2015 with the order becoming final in July 2015. A separation period of one year is generally a requirement of irretrievable breakdown. The husband's evidence is vague, uncertain and ambiguous as to the date of separation. As best as I can fathom, he claims that the parties separated under the one roof in 2008. In his evidence in court he disclosed that he left the joint matrimonial residence in 2012. He agrees that the parties “separated” in no longer having any intertwined financial interests as of January 2015. His divorce application is however, perhaps his best indication of his state of mind but the tenor of his evidence in court was towards he believing that the parties were separated from 2008. In considering the evidence as a whole, I am able to find on the balance of probabilities that the parties separated, albeit under the one roof, as long ago as 2008. Whilst some existing assets continued to be jointly owned and managed, there is evidence of the husband making significant unilateral financial decisions and transactions after that date. Consequently, and unlike the divorce application, a date certain for separation is not necessarily important where I might consider the nature and quality of contributions of the parties up until the date of the trial.The husband The husband gave his evidence in a straightforward manner. He was generally brief, to the point, and consistent in his response and neither elaborated nor retreated in cross-examination. He was at times prepared to make admissions against interest such as his late admission as to the sale of water rights from “Property R” for $240,000. His historical recollection, however, was not always sound or complete. His tendency was to be critical of the wife personally and as to her claimed contributions. His denials of family violence were bald and without any attempts to elaborate. He gave his evidence in a confident and concise manner consistent with my observations of his personality, at times coming across as entitled in broad statements but reluctant to enter into detail.The wife