East and Berry

[2017] FCCA 305

FEDERAL CIRCUIT COURT OF AUSTRALIA

EAST & BERRY [2017] FCCA 305

Catchwords:
FAMILY LAW – De facto relationship of modest length (9 years) – Applicant de facto Wife provided large amount of documentary evidence while the de facto Husband provided virtually no evidence to support his often convoluted and regularly difficult to comprehend claims – de facto Husband’s evidence is that he cannot reveal all details of past employment because of certain unspecified secretive employment terms and because of his “mental instability” which also prevents him from currently being employed in various (employers omitted) – Respondent changed his Orders Sought at different times during and after the trial – much of Respondent’s evidence clearly contradicted by documentary evidence provided by Applicant – questions surrounding “just and equitable” orders in circumstances where the Respondent’s evidence often changed and where he was unable to (or simply did not) provide documentary evidence to support his various and varying contentions.

Legislation:

Family Law Act 1975 (Cth), ss.90SF, 90SM

Cases cited:

Bevan v Bevan (2013) 279 FLR 1; (2014) 49 Fam LR 387

Applicant: MS EAST

Respondent: MR BERRY

File Number: CAC 474 of 2014

Judgment of: Judge Neville

Hearing date: 21 April 2016

Date of Last Submission: 10 June 2016

Delivered at: Canberra

Delivered on: 10 March 2017

REPRESENTATION

Counsel for the Applicant: Mr Hausfeld

Solicitors for the Applicant: Baker Deane & Nutt

Solicitors for the Respondent: Self-represented

ON A FINAL BASIS, THE COURT ORDERS THAT:

1. Absent the Applicant being able to secure finance within 60 days from the date of these Orders, the property known as Property A, being the land described as Property A ("Property A"), is to be sold and the net proceeds of sale are to be divided 58% to the Applicant and 42% to the Respondent.

2. The Applicant is appointed the trustee for sale of the Property A property.  In the first instance, the property is to be sold by public auction and only upon it not so selling it may then be sold by private treaty.

Superannuation Entitlements

1. The parties shall retain all their right, title and interest in and to their superannuation entitlements and have no further claim on such entitlements of the other.

Other Orders

1. The parties equally divide the household goods and contents as agreed, noting that the piano and the bedroom suite are to be retained by the Applicant.

   (a)Failing agreement, the Applicant shall write two lists outlining her proposed halves of the household goods and the Respondent shall choose which list he would like to claim.

2. Other than as set out in these Orders the parties have the sole right, title and interest in any other property which is, at the date of these Orders, in their possession title or name and they shall be solely liable for and indemnify the other against any personal liabilities.

3. The Respondent and Applicant do all acts and things and give all consents and execute all documents and writing necessary to give effect to the Orders made therein.

4. In the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.

5. Unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any moneys under these or any subsequent Orders:

   (a)Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as t the date of these Orders;

   (b)Any  money standing to the credit of the parties in a bank account  are to  be retained by the party in whose name the account appears;

   (c)Each party hereby forgoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as for in these orders;

   (d)All insurance policies are to become the sole property of the owner  named hereon;

   (e)Each party be solely liable for an indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;

   (f)Any joint tenancy of the Applicant and Respondent in any real or personal estate is hereby expressly severed.

6. Absent any application being filed within 14 days, each party should bear her and his own costs.

7. All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.  

THE COURT NOTES THAT:

A.The Applicant and Respondent are both entitled to bid on the Property A property when it is listed for sale.

IT IS NOTED that publication of this judgment under the pseudonym East & Berry is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 474 of 2014

MS EAST

Applicant

And

MR BERRY

Respondent

REASONS FOR JUDGMENT

Introduction

1. The current de facto property proceeding concerns the 60 year old Applicant and the self-represented 58 year old Respondent.  The parties were in a relationship for approximately 9 years, between mid-2000 and 2008 or late 2009.  For ease of reference only, in these reasons from time to time I will refer to the parties as Wife and Husband.

2. The Applicant worked throughout the relationship in the (employer omitted).  She continues to do so and earns $87,925 per annum or thereabouts.  The Respondent is highly qualified in (employment omitted) but his employment (past and present), like much of his evidence, was rather hard to pin down.[1]

   [1] Details in relation to his (omitted) qualifications are set out at Transcript, p.51.  Hereafter “T” followed by the page number.

3. Subject to what is said briefly later in these reasons, no issue was raised by either party regarding the health of the other.  I simply note that the Husband said and the Wife accepted that he had a heart condition; but no medical evidence was provided.[2]

   [2] See T 35 ff.

4. The principal asset of the relationship is a property in (omitted).  It is valued at something approximating $555,000; however, in her affidavit, filed 23^rd March 2016 (pars.46-47), Ms East confirmed that she had obtained three (3) market appraisals of the property.  She had sought agreement from Mr Berry that the property be regarded, for the purposes of the current litigation, as having a value of $580,000.00.

5. The Applicant Wife has superannuation of some $348,942 (according to her last Financial Statement, filed 27^th November 2015); the Husband has superannuation of $138,333.77 (according to his Financial Statement, filed 8^th August 2014).  There has been no updating material in this regard since.  I assume that this is the reason why the Applicant says in her Case Outline, filed 3^rd December 2015, that the Respondent’s superannuation was “not known”.  Clearly, according to his only Financial Statement filed, it was known as at August 2014.

6. The parties lived at the Property A residence during the relationship, and remain, for the most part, living under the one roof since separation (on the Wife’s evidence) on or about 1^st November 2009.  It seemed not hugely controversial during the trial that the Husband did not reside at this residence now on any regular basis.

7. Fairly, during the trial, on almost all issues in dispute, Mr Berry said that if documents or other evidence could be produced he would essentially agree with it.[3]  This was in the context of what he described (using my words) the immense amount of documentation that he had stored at the Property A residence but the significant disarray in which it was kept which meant that regularly during the trial Mr Berry was unable to produce documents either to support his contentions and or to refute those produced (or arguments advanced) by Ms East.

   [3] Among a number of places, see T 45 in relation to the provision of funds of $50,000 to him by Ms East to pass on to his Mother.

8. It is important, at this early juncture, to highlight the following matters that made the conduct of the trial, and indeed the preparation of these reasons, rather more difficult than usual.  Two examples will suffice.

9. First, in his written submissions, filed 9^th June 2016, at par.9, the Respondent stated:

   Legal Aid ran out of funding to support representation for the Respondent in mid-2015.  The Respondent has minimal knowledge of the law, he does have a good sense of justice.  This case should have been extremely easy for a competent solicitor like Tanya Nadin [the Applicant’s solicitor] to prosecute.  However the expense of acquiring a Barrister would seem excessive and unnecessary.  If Australian Law does not include clauses or precedents to prevent Australian citizen [sic] from being unrepresented and also makes no attempt to provide safeguards to allow them to defend themselves to the extent of capability deployed to the other side, then I would say this is an especially grave injustice.

10. I confess that I am not completely sure what these statements mean, and more particularly, I am not sure of their relevance to the current property proceedings.  They seem, at their highest, to be a general complaint about being embroiled in litigation.

11. The second example comes from the transcript of the Respondents’ evidence which relevantly, in exchanges with the Bench, was as follows:[4]

    [4] T 51.

    But when you say that your occupation is “in (occupation omitted)”, what in particular?  Are you a (occupation omitted)?  What is it that you do in (occupation omitted)?‑‑‑I do (omitted) work in (employment omitted) for a very, very specific use which I’m not allowed to discuss, your Honour.

    Why?‑‑‑Because I’ve taken an oath of allegiance to Australia and I have sworn not to disclose what it is I do.

    So who have you taken that oath before?‑‑‑I can’t give you the name of the person but I will ‑ ‑ ‑

    No, no?‑‑‑The name of the department?

    Yes?‑‑‑There’s several departments involved, your Honour, and they are (employers omitted).

    And do you say you’re on any existing contracts with any of those?‑‑‑No, your Honour.  I’m not allowed to work with those organisations at the moment because I’m deemed emotionally unstable.  Whether that’s true or not it – it doesn’t matter.  I am not allowed to work while I have a relationship issue.

    So who makes the determination when you are sufficiently mentally stable in order to work for any of those departments or organisations?‑‑‑Yes, your Honour.  There is an office here in Canberra and I would sit through, typically, an interview which can last up to 12 hours and it’s a very stressful and extensive, thorough examination of my ability to perform as required. 

    So when was the last time you had one of those tests?‑‑‑It was early last year, your Honour – sorry – it was 2014 – I’m sorry.  It was early 2014.

    I see.  But, amongst other things, you have sworn and filed an affidavit most recently on 15 April 2016;  correct?‑‑‑Yes.  Correct.

    And everything in that affidavit you say is true and correct?‑‑‑To the best of my knowledge, your Honour.

12. I mention these matters not as a criticism but simply to highlight that the Respondent confirmed that he has been assessed, he says, as being “mentally unstable” and that he cannot work in his areas of qualification unless and until there has been some form of formal assessment of him. There was no medical or other evidence to support these matters for the Respondent. Other matters, he says, he cannot discuss due to some form of secret oath he has sworn to someone or other at some earlier point in time; thus any assessment for example of his income earning capacity is somewhat problematic – among other things. In my view, the matters raised by Mr Berry are relevant both for the not infrequent difficulties encountered during the trial in the gleaning and assessing evidence, as well as for the purposes of assessing the various matters embraced by s.79(4) of the Family Law Act 1975 (“the Act”).

13. For completeness, I should also note that the Applicant’s written submissions were not as helpful as one would like, and expect, from Counsel. They were often-times unconventional and abbreviated in their lay-out and approach in dealing both with the evidence and the relevant sections of the Act.

14. In any event, in the light of the matters I have raised, and more particularly because of (a) the immense documentation provided by the Applicant, and/or (b) either the lack of documentation or the very confused and often inapt documentation from the Respondent, and (c) the much more ordered and logical oral evidence of the Applicant, where-ever there is any inconsistency in the evidence of the parties, I accept the evidence of the Applicant in preference to that given or provided by the Respondent.

15. At the outset, I should also record that I am more than satisfied – because of the long period of separation and otherwise – that the Court should make Orders that adjust the property interests of the parties that are just and equitable.[5]  In large measure, subject to what is set out in these reasons, with some modest adjustment, the Orders that I consider to be just and equitable are those as sought by the Applicant.

Orders Sought by the Applicant de facto Wife

[5] See s.79(2) of the Act, and the discussion by the Full Court in Bevan v Bevan (2013) 279 FLR 1; (2014) 49 Fam LR 387 in relation to the appropriate procedural approach in property cases.

1. The Applicant Wife filed a Minute of Orders Sought via email to Chambers on 19^th May 2016.  The Orders sought are as follows:

   1. The parties are to do all things reasonably necessary to allow the Applicant to arrange sale of the property known as Property A, being the land described as Property A (“the Property A property”).

   (a) The sale is to be arranged through a licensed real estate agent.

   (b) The sale is to be either by auction or by private treaty.

   (c) Subject to written agreement between the parties agreeing a different time period, settlement of the sale is to be within 4 months of these orders.

   2. After payment of legal costs associated with the sale and any selling costs, the net proceeds of the sale are to be split 70% to the Applicant wife and 30% to the respondent husband.

   3. The parties are to equally divide their household goods and contents as agreed, noting that the bedroom suite be retained by the Applicant.

   (a) Failing agreement, the Applicant shall write two lists outlining her proposed halves of the household goods and the Respondent shall choose which list he would like to claim, noting that the bedroom suite is to be retained by the Applicant.

   4. The parties retain all their right title and interest in and to their superannuation entitlements and have no further claim on such entitlements of the other.

   5. Other than as set out in these orders, each party have the sole right title and interest in any other property (including choses-in-action) which is, at the date of these orders, in their possession title or name and they shall be solely liable for and indemnify the other against any personal liabilities.

   6. That the parties do all acts and things and give all consents and execute all documents and writing necessary to give effect to these orders.

   7. That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.

Orders Sought by the Respondent de facto Husband

1. The Respondent Husband filed a Minute of Orders Sought by way of email to Chambers on 9^th June 2016, which set out his Orders Sought as follows:

   1. The Applicant Ms East provide a written statement to the Respondent Mr Berry for an amount to purchase the property outright which is, at the date of these orders and before the “the Property A property” is placed on the market.

   (a) The Applicant be allowed a period of two months to raise the funds for purchase

   2. The property value to be split 30% to the Applicant and 70% to the Respondent.

   3. The Applicant shall write two lists outlining her proposed halves of the household goods with the value of each item on each list included.

   4. The Applicant and the Respondent combine the value of their superannuation entitlements and the total value be split 50% to the Applicant and 50% to the Respondent.

   5. The Applicant declare all other property (including choices-in-action) which is, at the date of these orders in her possession title or name and the total value be split 50% to the Applicant and 50% to the Respondent.

2. However, during the course of the Final Hearing, Mr Berry outlined a somewhat different position.  At the outset of the trial, he indicated that he wished to receive the property at Property A unencumbered,[6] but then proceeded to state that he simply wished for the property to be returned to him, even if he was required to pay the outstanding mortgage repayments.[7]  He further indicated that he no longer agreed to each party retaining their respective superannuation.[8]  He then later amended this to state that should he retain the Property A property, and that he would be content for the Wife to retain her superannuation and all the household furniture.

   [6] See Transcript (21^st April 2016) p 5.  Hereafter “T” followed by the page number.

   [7] T 96.

   [8] T 10-T 11.

3. In relation to chattels, Mr Berry conceded that the Wife would retain the piano and bedroom suite, but otherwise that they would be divided evenly.[9]

   [9] T 13.

The Parties’ Evidence

1. The Wife’s rather brief evidence was as follows.

2. The Applicant owned a property in the suburb of (omitted).  She sold it in February 2003 for a net profit of $131,870.75.  With those funds, she contends that she paid (a) $59,719.69 to the Respondent’s former spouse as part of Mr Berry’s property settlement with that spouse, (b) $8500.00 to Mr Berry’s [former] solicitors who acted for him in the property proceedings involving his former Wife, and (c) some $4061.00 for a bedroom suite for the parties.  Documentation in support of these figures is located in Volume 1 of documents exhibited to the affidavit of Ms East filed 23^rd March 2016 (pp.34, 35 & 152A).[10]

   [10] Further documentation in relation to Mr Berry’s earlier property settlement are annexed to Ms East’ 27^th November 2015 affidavit at annexure D.

3. Ms East also deposed (pars.33 – 38 of the affidavit filed on 23^rd March 2016) that she provided $40,205.35 from her funds in 2003 to cover costs and capital gains tax for Mr Berry.[11]

   [11] References are given in her affidavit to the supporting documents the Applicant provided that are located in the exhibit to her affidavit.

4. The Applicant further deposed that she serviced during the course of the relationship, and continues to do so, loans (that currently stand in the sum of approximately $180,000.00) that are secured against the Property A property, as well as meeting the costs of rates.

5. The Wife also said that she paid for a roof restoration, which cost $7000.00; as well as painting, new carpet and other repairs to the property to the sum of $15,000.00.

6. The Wife’s voluminous but sometimes somewhat disordered bank statements and records generally were part of the documents exhibited to her trial affidavit.  Unfortunately, no such documents were available from Mr Berry.  Some documents he said he had stored electronically in a large computer facility he had at his residence; he also said that he had many records in “hard copy” but which were, in effect, all over the place.

7. It also seemed uncontested that at various times, one or more of the parties’ respective children from earlier relationships resided with them.[12]

   [12] Among other places, see T 38.

1. In the Applicant’s trial affidavit of March 2016 (pars.38 ff) she said that she and Mr Berry took out a loan over the Property A property in April 2004.  Documents were provided by the Wife to support this contention.  She said that from this sum, (a) $50,000.00 was paid to the Husband’s Mother (a copy of the deposit slip was provided), (b) $75,000.00 was lent to Mr L for a building venture which unfortunately failed, and (c) the balance of funds were used to purchase a small car for the Wife’s daughter.  The history of re-financing of this original mortgage to (omitted) Bank, and later with (omitted), and later still with (omitted) Bank, are set out (with supporting documentation) at pars.37 – 43 of the Applicant’s March 2016 affidavit.

2. To speak generally, Ms East gave her evidence candidly (as did Mr Berry).  Her evidence was logical, and as earlier stated, there was copious documentation provided to support her various contentions.  I have no reason to doubt her account of events and circumstances as described in her three affidavits (filed 23^rd March 2016, 27^th November 2015 and 3^rd April 2014).  I turn to the oral (and other evidence) of Mr Berry.

3. I have earlier noted the constraints and difficulties that attended Mr Berry’s evidence, including his lack of documentation and his (self-acknowledged) emotionally unstable state.  There was no challenge to the contention on behalf of the Wife that there was no relevant disclosure regarding his “business” which was operated through a company known as (omitted).  In addition to these matters, his evidence not infrequently was not only extremely difficult to follow but also he made serious but unsubstantiated allegations about the Wife.  For example, in relation to the sale of Ms East’ former residence in (omitted), he said that there was some form of financial “kick-back” to her.  There was no evidence to support such a jaundiced and adversative allegation.  Ms East denied such a claim; in her affidavit she set out her account of where the proceeds of sale went.[13]

   [13] See T 41.

4. It might be observed here that throughout the trial the Respondent displayed a certain level of indifference that bordered on disdain to the nine year relationship with the Applicant and the contributions she made to it including the standard of living they enjoyed.  Indeed, when asked why, in his view, the Applicant should get nothing from the property proceedings arising out of their relationship, Mr Berry accused Ms East of diverting funds to “other men.”[14]  In my view responses such as this (and there were others like them in the course of the evidence)[15] indicated a not insignificant lack of basic insight into even the most rudimentary understanding of “justice” and “equity” being done in the determination of the Court’s Orders regarding the division of the property of the parties.

   [14] See T 16.

   [15] See T 34.

5. In rather curious evidence that goes to the issue of “contributions” as well as (perhaps) the value of Mr Berry’s company, (omitted), he said that rather than giving Ms East cash for food, groceries and petrol, he simply “declared a dividend” to be paid by the company.[16]  Very unfortunately, documentary evidence of such matters was rather hard to come by.  Indeed, it was rather “curious” if not “convenient” that Mr Berry’s changed evidence in this regard was that in fact a different company had in fact paid the dividend which explained (in his view) why the dividends were not recorded by (omitted).  And the documents to support this changed evidence of Mr Berry were, unfortunately and somewhat “mysteriously” missing from his filing cabinet at home.

   [16] T 58.

6. And also in relation to this company of Mr Berry, he said that because Ms East was a “silent partner” in it, no superannuation was paid to her by it.[17]

   [17] T 60.

7. In addition to other allegations already noted, Mr Berry said that either Ms East or her solicitors had tampered with the financial records put before the Court.[18]  There was no evidence to support this accusation which was scandalous and scurrilous.  It should not have been made in the absence of any relevant evidence.

   [18] T 61 & 62.

8. It might be mentioned here that Mr Berry confirmed that he had 30 or 40 years’ experience in “(occupation omitted)”; formally, he is highly qualified.  Yet, he confirmed that he remains on Centrelink benefits due to his emotional instability and his inability to receive a relevant “clearance”, which he said would take many hours to undertake, to enable him to return to work.[19]

   [19] Generally, among other places, see T 54.

9. The Husband also said that there was no “value” or valuation of the company, (omitted), because its only or primary value was the intellectual property it held, which was “in his head” rather than in any files.  He confirmed that he controlled the company.[20]  That said, Mr Berry could not rebut or answer the Applicant’s questions about changing the shareholding of (omitted) to make himself the majority, and therefore the controlling, shareholder.[21]

   [20] T 65.

   [21] T 65.

10. Although it was not always clear because his evidence changed at different times during the trial, the Husband said that he (a) did not accept that the Property A property was unencumbered because of his concerns or allegations about the “kick-back” from the sale of the Wife’s property at (omitted), and (b) did not accept that the Wife paid any of his legal fees in relation to the earlier property settlement with a previous partner.[22]

    [22] Generally, see T 70, 73, 74 & 75.

11. I pause here to observe that, in my view, Mr Berry’s denials of Ms East’ payment to the Property A property from the proceeds of sale of her (omitted) property are unsupportable for a number of reasons.  Among them, most tellingly (and unexplained by Mr Berry) are the documents and email correspondence between the lawyers then involved in the property settlement between Mr Berry and his former Wife.  They are located at annexures C and D to Ms East’ affidavit, filed 27^th November 2015.

12. The documents and correspondence there referred to include an affidavit filed in the Family Court by Ms East (dated 17^th June 2002) in support of Mr Berry’s earlier property settlement in which she deposed, among other things, that Mr Berry had not been employed since 2002 which thereby required her to cover all relevant expenses in relation to the Property A property, and other general expenses referred to but which need not be recorded here.

13. Further, in the same annexure(s) there is email correspondence between Mr Berry and the (omitted firm) (as it then was).  The email is dated 3^rd February 2003.  Mr Berry stated on page 3 of that email the following:

    As it stands, I have an unencumbered house in (omitted) valued at around $400,000; My Mum has contributed $100,000 (25%); Ms East is about to contribute $120,000 (30%) – thanks to the sale of her (omitted) property.

14. In my view, Mr Berry cannot now disavow what he clearly stated to be the position in relation to the Property A property as set out in this email in relation to the financial contribution of Ms East.  This is but another instance where Mr Berry’s oral evidence was unable to be accepted in the face of documentary evidence provided by Ms East.  And notwithstanding the documentary evidence, Mr Berry continued to insist on the accuracy of his account.  I cannot and do not accept his evidence precisely because it was patently disproved by the documentary evidence provided by Ms East.

15. Mr Berry also rejected any knowledge of the three loans, involving respectively (omitted) Bank, (omitted), also earlier recorded.  This was so notwithstanding that his signature appears on the relevant documents provided to the Court by Ms East.[23]

    [23] See T 81 & 84.  See also T 46 regarding funds the Applicant said had been provided to Mr Berry's Mother, which he also denied.  Again, documents produced by Ms East supported her claims.

16. Mr Berry did not provide his “diary” that he said would support his account of certain events.  The “diary” was electronic in his “data centre” at the Property A residence.  He did accept that, to a certain degree, Ms East did pay gas and electricity prior to June 2008 and that she paid for her own mobile phone from 2008 onwards.[24]

    [24] T 86 – 87.

17. In relation to his final Orders sought, as disclosed or revised at trial, Mr Berry said:[25]

    MR BERRY:   I just want my house back.  If that means that the other side keeps all the furniture and all their superannuation, I’m happy with that.  If it even means I have to pay a $180,000 mortgage off, I’m even happy with that.  Yes.  I don’t know what percentage split that actually is, but I don’t want to take anything from the other side.  I just want my house back, and I’m willing to even pay for it.  I don’t know to what extent my friends will contribute.  Certainly 180,000, but the larger figure is pushing.

    [25] T 96.  There was some earlier discussion about how much Mr Berry might conceivably be able to raise to pay out the mortgage and to pay out Ms East’s interest in the Property A property.  He confirmed that his means were somewhat limited and would have to rely on “friends.”  See T 89.  I need not detail this discussion further other than to note that, absent any evidence in relation to his employment and therefore income, I have the greatest difficulty in seeing how Mr Berry could fund any relevant payout.

18. Finally, I should also note that Mr Berry was unable to explain the significant disparity between his superannuation entitlement as set out in his Financial Statement (filed in August 2014), which stated the amount of his (omitted) superannuation as $79,917.95, whereas in his trial affidavit, the figure was $202,464.94.  And all of this was in circumstances where, on the evidence, he had not been in paid employment for quite some time.[26]

    [26] T 92.

19. Although earlier mentioned, I should record again the significantly unsatisfactory state of the evidence on the part of Mr Berry, both because of the lack of documentation he provided to support any of his claims, and equally so because his evidence was relevantly contradicted by the documentation provided by Ms East.  Also his evidence was regularly inconsistent and sometimes rather illogical and quite difficult to follow.  All of this is what led me earlier to confirm that wherever there is any conflict in the account by either party in their evidence, the evidence of Ms East is to be preferred.

20. These are also the reasons why the Applicant’s list and values of assets, contained in her Outline of Submissions (dated 21^st April 2015 [sic: 2016] – set out below), should be taken to be the asset pool of the parties

Submissions on behalf of the Applicant de facto Wife

1. On the morning of the Final Hearing on 21^st April 2016, Counsel for the Applicant Wife provided an Outline of Submissions, which [unedited] was as follows.  It will be immediately apparent that there is significant abbreviation, which is unfortunately not explained.  Be that as it may, the submissions (including list of assets and values, agreed and otherwise), were as follows:

   De Facto Relationship and Residence

   1. No dispute that:

   (a) Ms East is (omitted) having been born on (omitted) and the husband is (omitted) having been born on (omitted):

   (b) the parties were in a de facto relationship: (omitted)¶

   (c) the relationship commenced about (omitted) 2000: (omitted)¶15-¶16; (omitted)“D” @¶3;

   (d) the relationship ceased either 2008 or 1Nov2009, that is about 9 years: (omitted)

   (e) there were no children of the relationship but Ms East has 5 adult children from a former marriage and the husband has 3 children from a former relationship: (omitted) 1 ¶3;

   (f) throughout the relationship (and at present) the parties resided in the ACT: (omitted)“D”@ ¶3 & ¶6; Amended Application; (omitted) 1 stem paragraph;

   (g) the parties currently reside in the matrimonial residence at Property A (“the Property A property”);

   (h) the parties are the registered proprietors of the Property A property and are so registered as joint tenants: (omitted) 3 ¶5 & Ex1 p1;

   (i) the Property A property is agreed to be valued at $580,000;

   (j) The Property A property is mortgaged to secure a split loan from (omitted), comprising:

   (i) an (omitted) Standard Home Loan in the amount of $134,419 which is in the name of both parties: (omitted) 3 ¶52-¶53 & Ex1 p65; and

   (ii) an (omitted) Loan Facility in the amount of $44,580 which is in the name of both parties: (omitted)3 ¶52- ¶53 & Ex1 p65.

   (k) The total debt against the Property A property is therefore about$178,999, leaving equity of about $401,000 (less selling costs and legals).

   2. Part VIIIAB of the FLA 1975 applies. The jurisdictional requirements of s90SB(a) and s90SK(1) FLA are met.

   3. It is appropriate to make property orders given that the parties each seek them and the parties cannot reasonably continue to live and own the Property A property, the house is their main disposable asset and Ms East is confronted with the hardship of having to continue to fund the loans, the house and most living expenses.

   Orders Sought

   4. The scope of the property dispute between the parties is narrow and essentially concerns the disposition of the Property A property. In this regard and based on the orders sought, the parties broadly agree on the following:

   (a) Each should retain their superannuation without any claim on the other's superannuation: Ms East' order 4; husband's order 6.3.

   (b) Household chattels should be divided equally: Ms East' order 5; husband's order 6.1. (This is subject to Ms East' claim for a bedroom suite: Ms East' order5.) The piano is not pressed.

   (c) Other property, assets or liabilities remain where they currently rest: Ms East' orders 6, 9(a), 9(b), 9(d), 9(e); husband's order 4, 5, 6.1, 6.2, 6.4, 6.5.

   5. In terms of the Property A property:

   (a) Ms East effectively seeks 65% of its net value (orders 1-3); and

   (b) the husband seeks 100% of its net value (husband's orders 1-3).

   Current Property (excluding superannuation)

ASSETS	VALUE	REF
(a)	Property A Property	$580,000	Agreed
(b)	Joint Ultimate offset A/c-Transaction facility	$2,211	(omitted)3¶49 &Ex2 pl086
(c)	Ms East’s share of (omitted) Bank A/c	$123	(omitted)3 ¶49
(d)	Husband's (Bank omitted) A/c	$56	As at 9/10/2015
(e)	Ms East’s (car model omitted) i30	$19,040	(omitted)3 ¶54 & Ex1 p77
(f)	Ms East’ 2004 (car model omitted)	$2,100	(omitted) 3 ¶54 & Ex1 p76
(g)	Husband's (car model omitted)	?$150	Claimed in 2014 Fin Statement
(h)	(omitted) Pty Ltd	?$1,000	Claimed in 2014 Fin Statement
TOTAL	?$604,680

LIABILITIES	VALUE	REF
(i)	Joint (omitted) Standard Home Loan secured by mortgage on Property A Property	$131,419	(omitted)3 ¶52-¶53 & Ex1 p65
(j)	Joint (omitted) Account-Loan Facility secured by mortgage on Property A Property	$44,580	(omitted)3 ¶52-¶53 & Ex1 p65
(k)	Ms Easts' (omitted) car loan	$22,793	(omitted)3 ¶52-¶53 & Ex1 p70-73
(l)	Ms Easts' (omitted credit card)	$3,000	(omitted)3 ¶52-¶53
(m)	Ms Easts' (omitted) Card	$234	(omitted)3 ¶52-¶53 & Ex1 p70-73
(n)	Ms Easts' (omitted credit card)	$3,490	(omitted)3 ¶52-¶53 & Ex1 p6-68
(o)	Husband’s loan from (omitted)	?$1,250	Claimed in 2014 Fin Statement
TOTAL	?$206,766

6. The net value of non-superannuation assets is therefore $397,914.

Superannuation

7. In the following table superannuation has not be formally valued with benefits accrued recorded.

Superannuation	Value	Ref
(p)	Ms Easts’ (omitted) superannuation	$384,942	(omitted)3 ¶58 & Ex 1 p92
(q)	Husband’s (omitted) superannuation	$202,465	Statement to 30/6/2015
(r)	Husband’s (omitted) superannuation	?$326	Claimed in 2014 Fin Statement
(s)	Husband’s (omitted) superannuation	$70,522	Statement to 10/2/2016
TOTAL	?$658, 255

Financial Contributions

8. At commencement of relationship:

(a) parties each had their accrued superannuation;

(b) Ms East had title to her property at Property B but with mortgage; and

(c) husband had title to Property A property but had loan to mother and had to “buy out” former wife.

9. During the relationship:

(a) Ms East worked throughout the relationship and still works;

(b) the husband only worked regularly to 2002 and has not worked since 28 Jun 2008;

(c) Ms East sold Property B property in Feb 2003 for net $131,870.75(omitted ¶30) and used proceeds to pay:

(i) $59,719.69 to husband's former wife as part of husband's divorce settlement (omitted ¶32);

(ii) about $8,500 to husband's former solicitors for fees associated with his prior divorce (omitted ¶32); and

(iii) about $4,061 for a bedroom suite for the couple ((omitted)3 ¶32);

(d) Ms East later provided a bank cheque of $40,205.35 for the benefit of the husband associated with his property settlement and probably to cover capital gains tax ((omitted)3 ¶34);

(e) since April 2004, Ms East serviced loans of over $186,000 secured against the Property A property for the benefit of the couple;

(f) Ms East paid $7,000 for a roof restoration ((omitted)3 ¶33);

(g) Ms East made paid $15,000 to improve the Property A property by painting, new carpet and repair of heating & plumbing (omitted1¶22; omitted3 ¶12);

(h) Ms East has produced her highlighted bank records showing over many years mortgage, utilities, insurance and other household expenditure from her accounts (omitted3 ¶9-¶10 Ex2); and

(i) the husband essentially leads no documentary evidence of significant financial contributions he made during the relationship and his claim to have financially supported children cannot be given much credence since he was out of work for most of the relationship.

10. Ms East initial housing equity has effectively been wrapped into the Property A property. She has also made significantly greater financial contributions over most of the years of the relationship. Ms East should get a significant additional share of the net value of the Property A property, at least 65% with 3 5% to the husband.

Non-financial Contributions

11. The husband claims to have supported Ms East' children in terms of supporting their school and extra-curricular activities. He does not otherwise dispute the evidence of Ms East that she essentially looked after all domestic and gardening duties around the house during the relationship.

12. This is not a case in which the non-working partner kept the home fires burning to enable the working partner to continue making a high income.

13. If any adjustment is required for non-financial contributions it should favour Ms East.

s90SF(3) Factors

14. The parties are of comparable age. The husband is clearly sufficiently trained and experienced to work. There is no evidence that the husband is unable to work, only that he chooses not to work. No relevant adjustment arises from such factors.

15. The Husband's inheritance arising from the recent unfortunate death of his father is at least a relevant factor under s90SF(3 ). Otherwise it should be included in the asset pool.

16. There is no evidence to suggest that, in terms of the timing or terms of the will, the testator did not intend some benefit of his testamentary gifts to go to Ms East. This inheritance suggests that the husband can well cope with a smaller proportion of the relationship property and can probably well support his future needs including housing needs.

17. In terms of adjustments, a further 5% or more would be appropriate in Ms East' favour.

Conclusion

18. The orders should be made much along the lines sought by Ms East, with all assets and liabilities other than the Property A property and the loan secured against it remaining with the relevant party who now has possession. There should be an order for sale of the Property A property with no more than 30% of the net proceeds going to the husband.

1. The Applicant Wife then filed further Written Submissions on 20^th May 2016,  which were as follows (abbreviations also unexplained):

   1. As ordered by His Honour on 21 Apr 2016, these submissions are to be read with and are additional to those handed up to the Court and to the husband on 21 Apr 2001 on behalf of the applicant wife, Ms East (“the Opening Submissions”).

   Credit

   2. The Court will accept that, in matters up to about 16 years old, the parties’ memories will not be perfect and that available documentary evidence is to be preferred.

   3. The Court will generally prefer the oral and affidavit evidence of Ms East for the following reasons:

   (a) Her evidence was not seriously challenged in cross-examination (“XXN”).

   (b) She made appropriate concessions when her memory was unclear and her memory was generally supported by the documents which were available.

   (c) The husband admitted expressly in XXN that his memory for everyday details was poor and he repeatedly sought to resort to documents, including by way of expressions to the effect: “Well, if you can prove it, then I accept it.”

   (d) The husband made many claims which he said were supported by documents, but those documents had not been produced and were not tendered in evidence.

   4. The Court will not now allow the husband to depart from evidence on which he previously relied in the Family Court of Australia, as in the affidavit of Ms East of 17 Jun 2002: see (omitted)3 Ex1 pp5-27.

   Objections to husband’s 2nd affidavit of 14 Apr 2016

   5. The husband’s above affidavit (“omitted”) was served in the week of the trial. As His Honour ordered, objections to (omitted) are listed below (excluding objections of irrelevance), with references to sections of the Evidence Act 1995 (“EA 1995”):

   (a) ¶6, last sentence: Inadmissible opinion evidence about the import of a conversation not expressly stated: s76, s135 EA 1995;

   (b) ¶7, last sentence: Husband cannot give evidence about Ms East’ state of mind of: s135 EA 1995;

   (c) ¶9, last sentence: Inadmissible hearsay: s59 EA 1995;

   (d) ¶12, first sentence: Inadmissible opinion evidence about unstated evidence: s76 EA 1995;

   (e) ¶14: 4th sentence and last sentence: Irrelevant and inadmissible opinion evidence about unstated evidence: s56 and s76 EA 1995;

   (f) ¶20, 2nd sentence: Not evidence this witness can give and inadmissible hearsay: s59, s135 EA 1995;

   (g) ¶20, 3rd sentence: Inadmissible opinion evidence about import of a conversation not expressly stated: s76 EA 1995; and

   (h) ¶31, annexure pp72-75: Irrelevant, inadmissible hearsay and unsafe to use because the provenance of the annexures are uncertain, with no account holder, no evidence of being proper business records: s56, s59, s135 EA 1995.

   Agreed facts and jurisdiction

   6. Some uncontroversial facts and jurisdictional issues are set out in the Opening Submissions under the heading “De Facto Relationship and Residence”.

   Issue

   7. Given the orders sought by the parties in their respective Amended Initiating Application and Response and the submissions in Court on 21 Apr 2016, the issue in this matter devolves to “What proportion of the net value of the Property A Property each should receive after sale of that property”. The Court will accept the evidence that neither party can afford to buy the other out.

   Further factual findings

   8. In terms of initial contributions, the Court will be satisfied that, contrary to the affidavit of the husband:

   (a) he did not bring to the relationship 2 (omitted) investment properties, a house at Property C and the Property A Property unencumbered;

   (b) rather he had sold one (omitted) property in 1995, as per his evidence in XXN;

   (c) as part of the property settlement with his former wife, Ms B, he sold the second (omitted) property; and

   (d) he only obtained the Property A Property formally unencumbered because Ms East paid Ms B $59,719.69, the husband’s then lawyers $8,500 and the Deputy Commissioner for Taxation $40,205.63 and because the parties, from borrowed funds, later repaid the husband’s mother $50,000.

   9. On the basis of Ms East’ evidence, including supporting documents, but contrary to the husband’s evidence, the Court will be satisfied that:

   (a) during their de facto relationship, the parties on 3 (not 4 occasions) borrowed against their jointly owned Property A Property;

   (b) on each occasion, the funds were used for joint purposes;

   (c) the failed investment with Mr L was also a joint matter (In this context, the husband’s evidence concerning a seminar and Mr L dealt with events about 18 months later: (omitted)2 ¶19-¶20; (omitted) affidavit; (omitted) affidavit.);

   (d) there is no credible evidence for the claim by the husband that the proceeds of the 3 loans were exclusively used for Ms East’ benefit; and

   (e) it is undisputed that Ms East is the only party who repaid and is continuing to repay the loans.

   10. The Court will be satisfied that Ms East never received many thousands of dollars from (omitted) Pty Ltd (“(omitted)”), including at least $15,505 in 2004. The husband so claims but is unable to provide any supporting documentation that the funds were ever sent to or received by Ms East. Ms East has denied in her oral evidence and in her supplementary affidavit of 28 Apr 2016 (“(omitted)4”) that she ever received such payments. Rather she points to bank statements showing that over the years she received only $2,300 from (omitted): see (omitted)4, ¶7-¶8.

   11. In terms of financial contributions to the relationship, the Court will be satisfied that, after about March 2002, when he lost his job, the husband’s contributions were limited because he worked a bit over half the time between March 2002 and 28 June 2008, after which he has not worked for remuneration, although he received Centrelink benefits. Ms East was employed from before the commencement of the relationship to the present, as indicated by her unchallenged evidence.

   12. The Court will be satisfied that Ms East has paid all domestic costs for most of the relationship and during recent years, except that, since about Dec 2012, the husband has mostly paid electricity and gas costs from his Centrelink payments: see (omitted)2 ¶25, ¶31 and Annexure pp98-99. To the extent that the husband pays for some telephony, the Court will find that this is limited to a landline not used as a telephone line since about 2005: (omitted)4 ¶5-¶6.

   13. The Court will be satisfied that (omitted) is undervalued by the husband, given the lack of formal valuation of the company and the husband’s late 2015 move to issue himself with additional shares giving himself a controlling interest in the company: see XXN of the husband and (omitted)3 ¶57.

   14. The Court will not be satisfied that the husband has debts concerning HECS/Fee Help or for a dentistry plan (see (omitted)2 ¶39-¶40), both liabilities being at most contingent and both of which may never require payment by the husband.

   15. The Court will be satisfied, by the husband’s oral evidence, that he is a highly skilled and highly experienced (occupation omitted) expert and entirely employable, although over recent years he has chosen to be unemployed or underemployed.

   16. There are minor, not legally significant, changes to the values of some assets/liabilities in updating account statements: (omitted)4 ¶11and PP7-17.

   Section 90SM (s79) considerations

   17. The Opening Submissions, under the heading “Financial Contributions”, relevantly sets out the parties’ respective financial contributions at the commencement of and during the relationship. Non-financial contributions are similarly set out under the corresponding heading. In terms of non-financial contributions, the Court will be satisfied that each party made some contributions to child rearing in the household but that the majority of that role fell to Ms East, notwithstanding that it was she who maintained full-time employment throughout the relationship as indicated by her affidavit and oral evidence.

   Section 90SF(3) (s75) considerations

   18. Towards the end of the Opening Submissions, submissions are made concerning s90SF(3) factors.

   Conclusion

   19. Ms East submits that it is just and equitable to make the orders set out in the attached Minute of Orders Sought.

   20. This is a matter in which an application for a special costs order may be made in due course.

Submissions on behalf of the Respondent de facto Husband

1. The Respondent filed his post-trial Written Submissions by way of email to Chambers on 9^th June 2016, which provided as follows:

   1. The Court was shown a 2003 - 2004 (omitted) PAYG Tax Certificate for Ms East with amounts recorded of $15,505 Gross and $6,833.00 Tax. The Group Certificate was not accepted as evidence because there was no evidence of the amount(s) being deposited and imprinted on any of the Applicant’s Bank Statements submitted to The Court.

   (a) The Court heard that several pages spanning many of the Applicant’s sequentially numbered bank statements were missing from the submitted Bank Statements

   (b) The Court heard that the Applicant paid the Respondent’s previous solicitors Farrar Gesini & Dunn for services pertaining to the divorce with Respondent’s ex-wife

   (c) No Bank Statements from Farrar, Gesini & Dunn (FGD) was submitted as evidence before The Court to show that FGD had received any amounts of money from the Applicant. Other than a cheque butt, no evidence of any receipts for any sums of money transferred to Farrar, Gesini & Dunn and paid by the Applicant was submitted

   2. Evidence was provided by The Applicant to The Court of a cheque butt with handwriting “(omitted)” for the amount of “$50,000”. The Applicant alleged this was paid to The Respondent’s mother Mrs MB or Mr Berry.

   (a) The Respondent’s mother was in an (omitted) facility at (omitted) at that time with her pension being redirected to the facility’s bank account for her ongoing care

   (b) The Respondent’s mother had no personal or secret bank accounts due to the state of her memory and her limited ability to remember and communicate regarding anything occurring in her short to medium term past. She would not have known if she had a bank account or not

   (c) No evidence was presented before The Court of $50,000 being deposited to any accounts maintained by the (omitted) Hospital or any other bank accounts pertaining to The Applicant’s mother

   3. The ACT Land Titles Agency has a Certificate of Title issued on 19 March 2003 with the Respondent listed as the “Sole Proprietor” and no encumbrances liens and interests for the Property A property.

   (a) The ACT Land Titles Agency has a Transfer document showing the the Respondent as the Transferor and the Respondent and the Applicant as the Transferee as Joint Tenants with the consideration of “Natural love and affection” for the Property A property.

   (b) Evidence was presented before The Court of a Statutory Declaration signed by the Applicant and dated 20 January 2004 and witnessed by Ms M requesting her name be placed on the Title Deed for the Property A property.

   (c) Evidence was presented before The Court of a Statutory Declaration signed by the Respondent and dated 20 January 2004 and witnessed by Ms M requesting the Applicant’s name be placed on the Title Deed for the Property A property.

   (d) Evidence was presented before The Court of an ACT Revenue Office(Department of Treasury) Receipt number 662657 dated 4 February 2004 for$20.00 being for stamp duty on the transfer for the Property A property to Joint Names

   4. Annexe E Page 76 exhibits the provenance given by Mr H (ACAT) that funds for the amount of $743.27 were released to an account number ending in “366”.

   (a) ActewAGL confirm the amount was paid via Electronic Funds Transfer on2 July 2014 in a letter to Mr H

   (b) The Applicant has a (omitted) Bank Transaction Facility Account number 012059366 which ends with the numbers “366”

   (c) The Applicant provided a copy of statements from this account as evidence, however transactions from 15 July 2010 to 16 August 2012 a period of over 2 years are missing. If the statement from this account spanning the period containing the date 2 July 2014 is provided by the Applicant then this would conclusively prove the Applicant obtained the funds illegally from the Respondent’s (omitted) account

   5. The provenance of the (omitted bank) Loan where the Respondent acted as a Guarantor for the Applicant was deemed incontrovertible by the Respondent’s representation Mr. Gregg Stagg, solicitor, Legal Aid 2014 at that time and the Respondent was instructed that only a photocopy of the loan documents was required. The photocopy made in 2014 by Legal Aid was exactly the document provided by the Respondent as evidence to The Court. The money obtained by the Applicant from this loan was exclusively used by the Applicant. It was transferred to the Applicant’s bank account which is an account not accessible by the Respondent.

   6. A valuation of the Respondent’s company (omitted) was provided by (omitted accountant).

   7. The (omitted) Dentistry debt is less than $1,000 and insignificant.

   8. Annexe F Commonwealth Assistance Notices pages 77 to 82 gives providence of the Respondent’s HECS / Fee Help debt for the total amount of $20,904.25 and this value is significant.

   9. Legal Aid ran out of funding to support representation for the Respondent in mid2015. The Respondent has minimal knowledge of the law, he does have a good sense of justice. This case should have been extremely easy for a competent solicitor like Ms Tanya Nadin to prosecute. However the expense of acquiring a Barrister would seem excessive and unnecessary. If Australian Law does not include clauses or precedents to prevent an Australian citizen from being unrepresented and also makes no attempt to provide safeguards to allow them to defend themselves to the extent of capability deployed by the other side, then I would say this is an especially grave injustice.

Submissions in Reply on behalf of the Applicant de facto Wife

1. The Wife filed Written Submissions in Reply on 10^th June 2016, set out in full below:

   Submissions not based on evidence/ Using submissions to lead evidence

   2. The husband improperly attempts to make submissions based on evidence not led or he improperly attempts to lead new evidence through his submissions. The Court should not allow this unreasonable and unfair approach, especially given the protracted nature of this matter, the many opportunities the husband has been afforded to organise his case and the current impossibility of the Applicant wife, Ms East, being able to test this evidence. In the following examples, paragraph references are to paragraphs of the husband’s Submissions:

   (a) ¶2(a)-(c): There was no evidence of the state of the husband’s mother’s health or of her bank accounts at the time of Ms East’ payment to her of$50,000, despite the husband putting some matters to Ms East in cross-examination (“XXN”).

   (b) ¶4(a): The husband refers to an alleged letter of 2 Jul 2014. this was not in evidence and such reference should be ignored.

   (c) ¶4(c): Whatever happened about the joint (omitted) account, there is no evidence that it involved any illegality by Ms East or any action by Ms East which would alter the disposition of property in these proceedings, especially since the amount involved was apparently $743.27.

   (d) ¶5: The husband apparently seeks to lead hearsay opinion evidence allegedly from his former solicitor, Mr Stagg of ACT Legal Aid. This cannot be permitted.

   (e) ¶6: The husband claims a valuation of (omitted) Pty Ltd was done by (omitted) Accounting. He tendered no such a valuation and so agreed in XXN.

   Other matters

   3. It appears that the husband is referring, in ¶3(b)-(c), to a transfer form when he mentions statutory declarations: see (omitted)3 Ex1 pp39-40.

   4. The husband apparently, in his ¶4, proposes that a fragment of a letter from an ACAT official can provide provenance to an incomplete table from an unknown source. Any such submission should be rejected.

   5. In ¶4(c), the husband wrongly claims over 2 years’ accounts are missing from Ms East’ bank accounts. Accounts for the identified period, 15 Jul 2010 to16 Aug 2012, are at (omitted)3 Ex2 pp799-919. Similarly, despite ¶4(c), a statement for 2 Jul 2014 is at (omitted)3 Ex2 p968.

   6. The husband’s apparently waiving reliance on any liability associated with the (omitted dentist) plan is welcomed: see his ¶7. Orders now sought by the husband

   7. The husband’s Order 1 should be rejected. There is no evidence he could ever afford the Property A property and if he could, he may have misled the Court about his assets or income. In any case, there is nothing to stop him bidding on the Property A property as part of a Court-ordered sale and no reason to further delay sale of the property. The husband has never made an offer to purchase the property.

   8. The husband’s Order 2 is not soundly based on the evidence and should be rejected. It is also inconsistent with his other orders suggesting a 50%/50% split.

   9. The husband’s Order 3 appears incomplete or to involve a complete waste of time since nothing is to be done with the two lists. There is no utility in either party trying to put a value to each item of their household goods.

   10. Concerning his Order 4, the husband should not now be allowed to agitate a superannuation splitting proposal, however, incomplete. This is contrary to the orders he originally sought and contrary to his submissions to the Court at trial, when he initially raised the issue and then backed off from it when it was clear that it raised to potential of an adjournment to allow the issue to be properly addressed in evidence by both sides.

   11. The husband’s Order 5 should be rejected as inconsistent with the evidence and with his or Ms East’ pleaded orders sought. Had the husband advocated for something like Order 5 at an earlier time, the trial would most probably have been run on a different basis. At the very least, issues concerning the time of acquisition of various assets and the contributions to them would have required specific evidence. It is unfair now to propose such an order. Furthermore, Order 5 as proposed addresses only Ms East’ assets and proposes no splitting of the husband’s assets.

Consideration & Disposition

1. In relation to matters of contribution generally, I note the following matters which should be taken as formal findings unless otherwise specified.

2. First, broadly, I accept the following, albeit some disparate, submissions on behalf of Ms East in relation to contributions (s.90SM(4) of the Act) (these submissions are recorded earlier in these reasons, but here are set out without the affidavit references, and still in their abbreviated form). These submissions, in my view, are supported by the documents provided by the Applicant, and there was nothing provided by Mr Berry in any relevant respect that would warrant the Court not adopting them:

   (a) Ms East worked throughout the relationship and still works;

   (b) the husband only worked regularly to 2002 and has not worked since 28 Jun 2008;

   (c) Ms East sold Property B property in Feb 2003 for net $131,870.75 and used proceeds to pay:

   (i) $59,719.69 to husband's former wife as part of husband's divorce settlement;

   (ii) about $8,500 to husband's former solicitors for fees associated with his prior divorce; and

   (iii) about $4,061 for a bedroom suite for the couple;

   (d) Ms East later provided a bank cheque of $40,205.35 for the benefit of the husband associated with his property settlement and probably to cover capital gains tax;

   (e) since April 2004, Ms East serviced loans of over $186,000 secured against the Property A property for the benefit of the couple;

   (f) Ms East paid $7,000 for a roof restoration;

   (g) Ms East made paid $15,000 to improve the Property A property by painting, new carpet and repair of heating & plumbing;

   (h) Ms East has produced her highlighted bank records showing over many years mortgage, utilities, insurance and other household expenditure from her accounts; and

   (i) the husband essentially leads no documentary evidence of significant financial contributions he made during the relationship and his claim to have financially supported children cannot be given much credence since he was out of work for most of the relationship.

   10. Ms East initial housing equity has effectively been wrapped into the Property A property. She has also made significantly greater financial contributions over most of the years of the relationship.

3. Secondly, I also accept the following submissions on behalf of Ms East in relation non-financial contributions (the following is also taken from the Wife’s submissions, again in their abbreviated, disparate form, noting that there is some overlap between financial and non-financial contributions and other factors).  I do so for the same reasons expressed earlier in these reasons, namely because the Applicant provided documentary evident to support her contentions.  As well, her evidence was both more cogent and more credible and reliable than was the evidence of Mr Berry:

   1)   The husband claims to have supported Ms East' children in terms of supporting their school and extra-curricular activities. He does not otherwise dispute the evidence of Ms East that she essentially looked after all domestic and gardening duties around the house during the relationship.

   2)   This is not a case in which the non-working partner kept the home fires burning to enable the working partner to continue making a high income.

   3)   In terms of initial contributions, the Court will be satisfied that, contrary to the affidavit of the husband:

   (a) he did not bring to the relationship 2 (omitted) investment properties, a house at (omitted) and the Property A Property unencumbered;

   (b) rather he had sold one Property A property in 1995, as per his evidence in XXN;

   (c) as part of the property settlement with his former wife, Ms B, he sold the second Property A property; and

   (d) he only obtained the Property A Property formally unencumbered because Ms East paid Ms B $59,719.69, the husband’s then lawyers $8,500 and the Deputy Commissioner for Taxation $40,205.63 and because the parties, from borrowed funds, later repaid the husband’s mother $50,000.

   4)   On the basis of Ms East’ evidence, including supporting documents, but contrary to the husband’s evidence, the Court will be satisfied that:

   (a) during their de facto relationship, the parties on 3 (not 4 occasions) borrowed against their jointly owned Property A Property;

   (b) on each occasion, the funds were used for joint purposes;

   (c) the failed investment with Mr L was also a joint matter (In this context, the husband’s evidence concerning a seminar and Mr L dealt with events about 18 months later);

   (d) there is no credible evidence for the claim by the husband that the proceeds of the 3 loans were exclusively used for Ms East’ benefit; and

   (e) it is undisputed that Ms East is the only party who repaid and is continuing to repay the loans.

   5)   The Court will be satisfied that Ms East never received many thousands of dollars from (omitted) Pty Ltd (“(omitted)”), including at least $15,505 in 2004. The husband so claims but is unable to provide any supporting documentation that the funds were ever sent to or received by Ms East. Ms East has denied in her oral evidence and in her supplementary affidavit of 28 Apr 2016 (“(omitted)4”) that she ever received such payments. Rather she points to bank statements showing that over the years she received only $2,300 from (omitted).

   6)   In terms of financial contributions to the relationship, the Court will be satisfied that, after about March 2002, when he lost his job, the husband’s contributions were limited because he worked a bit over half the time between March 2002 and 28 June 2008, after which he has not worked for remuneration, although he received Centrelink benefits. Ms East was employed from before the commencement of the relationship to the present, as indicated by her unchallenged evidence.

   7)   The Court will be satisfied that Ms East has paid all domestic costs for most of the relationship and during recent years, except that, since about Dec 2012, the husband has mostly paid electricity and gas costs from his Centrelink payments. To the extent that the husband pays for some telephony, the Court will find that this is limited to a landline not used as a telephone line since about 2005

4. In my view, having regard to the evidence, the Orders of the Court are unlikely to make any relevant difference to the income earning capacity of either of the parties (s.90SM(4)(d)) because (i) Ms East remains gainfully employed in the public service and (ii) Mr Berry remains (on his evidence) unemployed and on government-benefits until he undergoes some unspecified assessment in relation to his “emotional stability”.

5. In my view, having regard to all the evidence, there should be a modest adjustment in the Wife’s favour regarding “contributions” generally of 5%.

6. In relation to factors under s.90SF(3), I accept the following submissions on the Wife’s behalf (again, with abbreviations and attenuations included):

   The parties are of comparable age. The husband is clearly sufficiently trained and experienced to work. There is no evidence that the husband is unable to work, only that he chooses not to work. No relevant adjustment arises from such factors.

7. There was oral but no independent evidence, accepted by the Wife that there were a small number of health issues in relation to the Husband although there was no suggestion that any of them were debilitating or otherwise relevant to the Court’s determination of what Orders are just and equitable in relation to the parties.

8. Typically, the Court was in the invidious position where there was little or no independent evidence (especially medical evidence) from Mr Berry to support his contentions regarding his “emotional instability” and how that prevents him working in his chosen (employment omitted) field(s).

9. Properly, there were no relevant submissions made in relation to the adult children of either party.[27]  There were no submissions made, other than perhaps by implication, regarding the standard of living of the parties.  The implication may arise in relation to the Wife continuing to bear the burden of the ongoing costs of the mortgage and other outgoings in relation to the property; in relation to the Husband, the implication may arise from his contention that all of his IT equipment, and disordered records, are stored in the garage of the Property A property. 

   [27] But see Mr Berry’s comments at T 37 in this regard, which claims were refuted by Ms East.

10. Otherwise, I find no merit in the submissions of Mr Berry.  Often they were wide-ranging and invariably unsupported by any relevant evidence (and regularly refuted by documentary evidence of the Applicant – e.g. in relation to allegations that Ms East used loan funds for her own personal benefit.)

11. The relationship was of approximately 9 or so years.  The Wife has a secure and well paid job, while Mr Berry, while well qualified, does not have gainful employment at the moment.  The Wife’s employment will enable her to continue to acquire superannuation.  It is unclear whether and if so when Mr Berry will return to paid employment.  If he does, presumably he will be able also to acquire superannuation to add to his more modest superannuation as it stands at the moment.

12. Again in the light of all the evidence, in relation to the factors set out in s.90SF of the Act, there should be an adjustment in the Wife’s favour of 3%.

13. In all of the circumstances, therefore, having regard to the “just and equitable” requirement specified in s.90SM(3), an Order should be made providing that there be a percentage split of the non-superannuation asset pool of 58% in the Wife’s favour and 42% to the Husband. Each party should retain her and his superannuation as it currently stands.

14. As a matter of practicality, I accept the Wife’s submission that neither party has sufficient funds or capacity to buy out the other’s interest in the Property A property.  That said, there is nothing to prevent either party from bidding at the auction of that property, which must, in the end, be sold and the net proceeds divided in accordance with the percentage division I have determined.

15. In relation to “chattels”, at the commencement of the trial Mr Berry agreed that household chattels should be divided equally, save that Ms East would take the (omitted) and the bedroom suite.[28]

    [28] T 13.

1. Otherwise, the Orders as sought by Ms East should be made in relation to matters such as chattels and the like.

2. Finally, although the Applicant foreshadowed a “costs application” on the basis of the Respondent’s persistent failure to provide full and frank disclosure, in my view, the most appropriate course is simply to order that absent any application being filed within 14 days, each party should bear her and his own costs.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Neville

Date:     10^th March 2017