Esmore & Blandford
[2021] FedCFamC1F 195
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Esmore & Blandford [2021] FedCFamC1F 195
File number(s): ADC 1455 of 2016 Judgment of: MEAD J Date of judgment: 15 November 2021 Catchwords: FAMILY LAW – Property – Where the parties were in a de facto relationship for eighteen and a half years – Where the parties have four children – Where the two older children moved to live in the care of their maternal grandparents from the ages of approximately 10 and 12 respectively – Where the parties’ younger twin children continued to reside with the parties in the family home until separation in 2016 – Where the parties’ relationship involved regular heavy drinking, regular heated arguments and where on occasions the arguments involved verbal abuse, violence and police involvement – Where the respondent suffers serious mental health challenges from time to time – Where there have been two sets of parenting proceedings between the parties – Where the older children are now adults and where the current final parenting orders relating to the parties’ twins were made on 24 September 2020 – Where the orders provide for the twins to live five out of every fourteen nights with the applicant and at all other times with the respondent – Where the respondent lives in Sydney at least ten out of twenty-eight days – Where at those times the maternal grandparents care for the twins – Where the applicant seeks a 50/50 division of the main net non-superannuation asset and a splitting order in his favour to equalise the parties’ superannuation entitlements – Where the respondent opposes any order for property adjustment and orders for her to retain the total gross non-superannuation asset pool together with the full balance of her superannuation entitlements – Where the respondent relies on the “Kennon” argument – Where the respondent and her father (previously the second respondent) provided the initial funds for the purchase of the family home – Where both parties earned modest income throughout their relationship – Where it is the respondent’s case that the applicant made no financial or non-financial contribution to the welfare of the family – Where the Court is unable to make such a finding on the evidence albeit that the financial and non-financial contributions of the respondent were greater – Where the respondent’s father provided significant financial and non-financial support to the parties and their children – Where the respondent’s father had a claim in his own right for funds to be repaid to him – Where his claim was settled by way of consent orders made on 17 August 2021 – Where the Court finds it just and equitable for an order to be made adjusting the financial interests of the parties – Where having considered the financial and non-financial contributions of the parties during the relationship and post-separation together with s 90SF(3) factors the Court finds it just and equitable to adjust the financial interests of the parties as to 70/30 in favour of the respondent. Legislation: Family Law Act 1975 (Cth) ss 4AB, 90SF(3), 90SM, 90SM(1), 90SM(3), 90SM(4) Cases cited: C & C [1998] FamCA 143
Edgehill & Edgehill [2007] FamCA 1102
Kennon & Kennon (1997) FLC 92-757
Stanford & Stanford (2012) FLC 93-518
Division: Division 1 First Instance Number of paragraphs: 314 Date of hearing: 1 & 2 November 2021 Place: Adelaide Counsel for the Applicant: Mr Praolini Solicitor for the Applicant: Adelaide Family Law Counsel for the Respondent: Mr Tredrea Solicitor for the Respondent: Carmen Wood & Associates ORDERS
ADC 1455 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ESMORE
Applicant
AND: MS BLANDFORD
Respondent
ORDER MADE BY:
MEAD J
DATE OF ORDER:
15 NOVEMBER 2021
THE COURT ORDERS THAT:
1.That in full and final settlement of any claim that either party may have or hereafter have against the other for settlement of property:
(a)That within seven (7) days of the date of this order the respondent cause the sum of SIXTY THOUSAND SIX HUNDRED AND SEVENTY‑ONE DOLLARS ($60,671.00) to be paid to the trust account of the applicant’s solicitor on his account;
(b)That the said payment be made from the funds standing to her credit in her solicitor’s trust account as a result of the sale of the property at B Street, Suburb C;
(c)Upon compliance with the terms of paragraph 1(a) hereof the remainder of the net sale proceeds referred to in paragraph 1(b) hereof shall be retained by the respondent for her sole use and benefit absolutely;
(d)That the applicant retain for his sole use and benefit absolutely the payment referred to in paragraph 1(a) hereof together with all other items of personalty in his possession or control including but not limited to motor vehicles, household furniture and effects, shares, savings, investments and superannuation entitlements, together with the superannuation payment referred to in paragraph 1(g)(i) hereof for his sole use and benefit absolutely;
(e)That in addition to the funds referred to in paragraph 1(c) hereof the respondent retain for her sole use and benefit absolutely all other items of personalty in her possession or control including but not limited to motor vehicles, household furniture and effects, shares, savings and investments as well as her superannuation entitlements SAVE AND EXCEPT for those referred to in paragraph 1(g)(i) hereof, for her sole use and benefit absolutely;
(f)That the applicant pay the debt due and owing by the parties to the D School to the exoneration of the respondent and indemnify her in respect thereof;
(g)That pursuant to Section 90 XT(1)(a) of the Family Law Act 1975 (“the Act”):
(i)Whenever a splittable payment within the meaning of section 90XT of the Act becomes payable to or on behalf of the Respondent from the Respondent’s interest in the E Super Fund (Member No: …) (“the E Super Fund”), the Applicant will be entitled to be paid by the Trustee of the E Super Fund (“the Trustee”) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”), using a base amount of NINE THOUSAND TWO HUNDRED AND FORTY‑SEVEN DOLLARS ($9,247.00) (provided that such base amount shall not exceed the value of the interest determined under section 90XT(2)) of the E Super Fund in the Respondent’s name to be allocated to the Applicant and there be a corresponding reduction in the entitlement the Respondent would have had but for these Orders;
(ii)Having been afforded procedural fairness, paragraph 1(g)(i) hereof is binding on the Trustee;
(iii)The operative date for paragraph 1(g)(i) is the fourth business day following service of these Orders upon the Trustee;
(iv)Immediately upon being made, these Orders are to be served upon the Trustee;
(v)Until the Applicant satisfies the condition of release and is paid the payment split which was created by paragraph 1(g)(i), the Respondent will do nothing and will permit nothing to be done that may render any part of her interest in the E Super Fund a "non-splittable" payment within the meaning of Regulation 12 or 13 of the Regulations.
2.That all extant applications be otherwise dismissed.
3.Liberty to either party to apply as to consequential orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Esmore & Blandford has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
These reasons relate to the competing claims for settlement of property of Mr Esmore (“the applicant”) and Ms Blandford (“the respondent”).
Proceedings between the parties commenced with respect to parenting issues only on 20 April 2016. A final parenting order was made by consent on 21 June 2016.
The applicant commenced further proceedings on 19 January 2018 seeking both parenting and property settlement orders.
The respondent’s father Mr F Blandford became involved in the proceedings by way of filing a Response to the Initiating Application for settlement of property on 21 June 2018 and thereafter became the second respondent to the proceedings only with respect to property.
Final parenting orders involving only the applicant and the respondent and their children were made by consent on 24 September 2020.
On 17 August 2021 a further consent order was made as between the applicant, the respondent and the second respondent finalising the property settlement claim of the second respondent. Thereafter he ceased to be involved in the proceedings other than in his capacity as a witness for the respondent.
The applicant is aged 48 years and the respondent 44 years.
They commenced cohabitation in early 1997, sometime prior to July 1997 and separated on 25 January 2016, a period of approximately eighteen and a half years.
The parties had four children.
Mr V is now aged 24 years, Mr W 18 years, and the twin girls X and Y are aged 14 years.
By virtue of the consent order of 24 September 2020, the only children under the age of 18 years, X and Y, live with their mother and spend time with their father from Friday after school to the commencement of school the following Wednesday in each second week. They are also able to spend time with him on special occasions including Christmas Day and birthdays in accordance with their wishes.
The parties competing applications
The orders sought by the applicant at trial were set out in his Further Amended Initiating Application filed 15 July 2021.
That document was filed prior to the finalisation of the claim of the second respondent.
The orders he seeks as between he and the respondent are as follows:
·That the sale proceeds remaining from the sale of the property at B Street, Suburb C South Australia be divided between the parties equally;
·That there be a superannuation splitting order in his favour from the respondent’s E Super Fund, such that their superannuation entitlements are equalised;
·That the parties otherwise each retain for their own use and benefit their own motor vehicles, savings, long-service leave entitlements, life insurances, shares and investments, furniture, furnishings and effects together with their settlement monies and their superannuation entitlements; and
·They each pay their own debts and indemnify the other of them in that regard.
In the Initiating Application filed on 19 January 2018 the applicant sought a declaration that Mr F Blandford hold the property at Suburb C on trust for he and the respondent, and that the respondents pay such sum to him as the Court deemed fair and reasonable, in consideration of which he would transfer his interest in the Suburb C property to the respondent. He also sought an equalisation of the parties’ superannuation entitlements and that otherwise each party keep their personalty free of any claim by the other.
In his Amended Initiating Application filed 9 April 2018 he sought the same orders.
In a further Amended Initiating Application filed on 29 July 2020 he sought the following orders:
·31.77 per cent of the net proceeds of sale of the Suburb C property to the second respondent;
·An additional sum of $40,000 to be paid to the second respondent;
·A sum of money representing 45 per cent of the remaining net sale proceeds to be paid to him; and
·The remaining 55 per cent of the net sale proceeds to the respondent.
He sought the equalisation of the parties’ superannuation entitlements and otherwise each party keep their own personalty and pay their own debts.
In the Amended Response filed by Ms Blandford on 2 July 2018 she proposed final orders by way of a distribution of the combined superannuation entitlements of the applicant and the respondent upon such terms as the Court deemed just and equitable and otherwise each party retain their own personalty. She made no reference to the Suburb C property.
In a Further Amended Response filed by her on 23 September 2020 she proposed payments from the Suburb C sale to her father (the second respondent) to account for Capital Gains Tax incurred by him, a further payment to him of $42,000 in respect of outgoings paid by him and that he then receive 31.77 per cent of the balance of the funds remaining. She then proposed a payment of $50,000 to the applicant and the balance to be paid to her with each party retaining their own superannuation entitlements as well as their other personalty.
The orders sought by the respondent at trial are set out in her Third Further Amended Response filed on 14 July 2021.
In simple terms those orders are:
·That the Initiating Application be dismissed in its entirety;
·That she retain the remaining net proceeds of sale of the Suburb C property currently in her solicitor’s trust account in their entirety;
·That otherwise each party keep their respective personalty including their superannuation entitlements for their own use and benefit absolutely; and
·That each party be liable for their own debts.
Background
The parties commenced a relationship in late 1996 and commenced cohabitation sometime early in 1997, prior to Mr V’s birth in 1997.
At that time the applicant was aged 24 years and the respondent 19 years.
She had fallen pregnant, on her evidence, within approximately one month of the parties commencing their relationship.
The parties’ commenced cohabitation in South Australian Housing Trust accommodation in Suburb G rented in the respondent’s name. The weekly rental was approximately $25 which amount was deducted directly from the respondent’s government pension.
The respondent was still a student when she became pregnant and did not have paid employment prior to Mr V’s birth. She was in receipt of a government pension.
At the time the relationship commenced the applicant was an apprentice and earning, on his evidence, minimal apprentice wages.
In cross-examination the applicant said that after a period of approximately twelve months in the unit the respondent advised South Australian Housing Trust that he was also residing there and the rent was increased to $50 per week. The parties then left that accommodation and moved to rented premises in Suburb H.
His uncontested evidence was that the rent at that property was $250 per week, that the lease was in both he and the respondent’s names, and that he paid the rent in circumstances where the respondent at that time did not have a job.
On the respondent’s evidence she commenced work when Mr V was approximately 18 months old which would have been in 1999, some six months or so after the parties moved to Suburb H. The employment involved shift-work including night-shift but was the equivalent of fulltime hours.
The applicant deposed to commencing employment with J Company at about the time the parties moved into the Suburb G unit, working 40-60 hours per week including night-shift as a casual employee. He was not challenged as to the evidence contained in paragraph 14 of his trial affidavit, namely that the parties primarily used his income as well as the respondent’s pension for their living expenses.
The parties remained living in the rented accommodation at Suburb H until they moved into a property that was purchased in Suburb C in or about March 2000.
It was the applicant’s evidence that in 1999 he and the respondent had commenced looking to purchase a family home. That evidence was not disputed by the respondent.
The applicant conceded in cross-examination that the respondent attended at a couple of auctions of properties on her own but it was common ground that the applicant, the respondent and the second respondent all attended at the auction of the property at B Street, Suburb C and that the respondent was the successful bidder. The property cost $187,000 but at settlement approximately $195,000 was required inclusive of the costs of purchase.
It was common ground that the majority of the funds for the purchase came from monies received by the respondent by way of compensation for a serious accident which she had in or about 1995.
It was her evidence that she was seriously injured in an accident when she was struck by a motor vehicle while crossing a road. She deposed to suffering very extensive physical injuries as well as a closed head injury resulting in an acquired brain injury. In addition, she suffered post traumatic amnesia.
The accident resulted in her being hospitalised for some six weeks including four weeks of rehabilitation. She deposed to having had physiotherapy for some two years after the accident and to continuing to receive treatment for her mental health.
She received a sum of approximately $150,000 by way of compensation for her injuries.
On her uncontested evidence she had $118,000 of those funds left to contribute to the purchase of the Suburb C house.
It was the applicant’s evidence that at the time of the purchase of the house he knew that the initial deposit was to be paid from the respondent’s compensation monies, he was aware that they were unable to raise the finance necessary for a mortgage, and it was his understanding that in those circumstances the respondent’s father offered to assist them. He deposed to understanding that a mortgage would be registered in Mr F Blandford’s name although the property would remain registered in the respondent’s name.
When asked in cross-examination what efforts he made to obtain finance to complete the Suburb C purchase, he replied words to the effect of “the deal was Leon would chip in so there was no need to apply”.
In paragraph 20 of his trial affidavit he deposed to never being privy to any conversations between the respondent and her parents in respect of finances and the Suburb C property. In cross-examination he confirmed that to be true but said he knew that the second respondent was prepared to take up finance because it was a “fact – it was history”.
When it was put to him that he had no discussions with the second respondent as to the issue of the mortgage, mortgage payments and the like, he replied that he did so frequently over the course of the relationship. When asked why he had said he was not privy to financial conversations he said that he thought he was saying that what the respondent and her father said was kept between them.
He further deposed in his trial affidavit to not discovering until the property settlement proceedings were on foot that the property was registered in the name of the respondent’s father and that there was no mortgage secured against the title of the property.
He deposed to becoming aware following upon disclosure during the proceedings that the contract to purchase the property was signed by the respondent, that a Deed of Assignment of the contract to the respondent’s father was dated 23 February 2000 and that the Deed was prepared in circumstances where the respondent was not able to obtain finance.
He further deposed to learning that the second respondent had contributed the total sum of $61,951.13 to the settlement of the property and had registered a mortgage over his property at Suburb O to secure that finance.
Over a period of six months in 2000 the respondent undertook a course through L College. There was no evidence as to whether this was in addition to her other job or whether she ceased that employment to do the course.
In January 2001 she was offered a casual position at M University for a period of six weeks. This progressed to contract work and then a permanent fulltime position in 2002. She finished working at the university in October 2016, by which stage her salary was $50,000 gross per annum.
Following upon the birth of the parties’ second child Mr W in 2003 the respondent took approximately six months maternity leave, and following upon the birth of the twins in 2007 took maternity leave of approximately two months.
The applicant’s employment was less stable.
He deposed to leaving his employment at J Company at about the time the parties moved into the Suburb C property in or about March 2000 and commencing work on a casual basis but for fulltime hours on day-shift only at N Company.
He deposed to continuing in that employment for some three years until sometime after the birth of Mr W. After a period of unemployment he obtained employment with P Company. He deposed to that employment having better working hours and better pay compared to his previous employers. The applicant deposed to being made redundant from his employment at P Company in late‑2007 and receiving a redundancy payment in the sum of approximately $14,000.
He deposed to working five to six days per week for the most part, commencing at 5.00 am and finishing at 1.00 pm on Monday through to Friday, and on Saturday commencing at 6.00 am and finishing at 10.00 am.
When the respondent commenced employment when Mr V was some 18 months old, he was placed into child care when she was not able to care for him personally. She deposed to the applicant not caring for Mr V other than for very brief periods when she attended to errands.
It was the evidence of the applicant contained in paragraph 31 of his trial affidavit that the respondent would take Mr V to child care when she commenced work in the morning and he would collect Mr V once he finished work in the afternoon.
It was the applicant’s evidence that upon the birth of the parties’ second child Mr W and the respondent’s subsequent return to work after maternity leave, the respondent would generally take Mr V to school and Mr W to child care in the morning and he would collect the children from school and child care respectively when he had finished work.
The respondent denied that the applicant played any significant role in caring for the children or assisting with their transportation to and from child care or school. It was her position that she was unable to trust the applicant to adequately provide for the children’s practical needs and did not consider that they were safe in her absence.[1]
[1] Respondent’s trial affidavit, paragraph 78.
In cross-examination he said that a large “chunk” of funds received by him on account of being made redundant in 2007 were used to repair a pool filter which he said broke on a few occasions and was expensive to repair, and otherwise on usual cost of living expenses.
He deposed to being unemployed for about three months before recommencing employment with N Company in late 2007 or early 2008 where he continued working for approximately two years. He then obtained a twelve month contract with Q Group in about 2010, and a further twelve month contract in 2011 with the K Hospital. He became unemployed once that contract ended.
He deposed in paragraph 41 to then seeking assistance through job recruitment agencies and to being “stuck” on a “merry-go-round” of short-term roles with various employers. He deposed to that being the position for some eighteen months until he obtained a further twelve month contract with S Company in 2013.
He deposed to obtaining employment with R Company in 2014 for some eighteen months, but to suffering a workplace injury in mid-2015 which resulted in him ultimately losing his job, apparently as a result of complications with a claim being lodged with his employer.
He deposed to being unemployed for the last six to twelve months of the parties’ relationship until separation in January 2016, and to being in receipt of Centrelink during that time.
The parties separated following upon a violent incident resulting in the applicant’s arrest on or about 22 January 2016.
When the parties’ eldest child Mr V was 9 to 10 years old it was common ground that he commenced spending significant amounts of time with his maternal grandparents such that by the time he was 16 years old he was living with them on a fulltime basis. On his evidence contained in paragraph 10 of his affidavit filed 21 August 2021 he lived primarily in his parent’s household until he was in about Year 4 at school.
The parties’ second child Mr W followed the same course and gradually spent more time with his maternal grandparents until he was about 12 years old at which time he decided to live fulltime with them.
The twins remained living with their parents in the former family home until separation in January 2016. In June 2016, some six months later, consent orders were made providing for the twins to live with each of their parents on a week-about basis.
On 28 February 2018 a further order was made in the second set of proceedings providing for X and Y to live with their father and spend time with their mother, supervised, on each alternate weekend from 10.00 am Saturday to 6.00 pm Sunday.
On 4 September 2018 the order was varied such that the children live with their father from the conclusion of school Thursday until the commencement of school the following Tuesday in each alternate week during the month of September, and then, as at 1 October 2018, the order provided for week-about time with each parent with Monday changeovers.
On 17 January 2019 the order was further varied to provide for the twins to live with their mother and spend time with their father in each alternate week from the conclusion of school Friday until the commencement of school the following Wednesday, a period of five nights per fortnight.
That was essentially in the same terms as the final order made by consent on 24 September 2020 to which I have referred in paragraph 11 of these reasons.
The applicant’s position in the matter overall was that:
·The income earned by both parties during the period of the relationship was modest and was utilised to support their family;
·Their combined income resulted in them living “fortnight to fortnight” with no capacity for savings or the purchase of any assets of significance;
·Their financial contribution should be assessed as almost equal save as to conceding that the initial contribution of the respondent with respect to the acquisition of the Suburb C property may result in an adjustment in her favour of 5 per cent leading to an assessment of 55/45 per cent in the respondent’s favour;[2]
·Both parties made non-financial contributions by way of homemaking and parenting;
·Those contributions should be assessed as equal;
·The respondent deposed in her financial statement filed 8 September 2021 and confirmed in cross-examination that she earns approximately $100,000 per annum;
·The applicant’s average weekly income is approximately half that of the respondent;
·That notwithstanding the respondent deposing to various physical and mental health difficulties, there is no evidence that these have any impact upon her income earning capacity;
·The parties’ two eldest children are now independent and the twins live with the maternal grandparents, in whose household the respondent resides for approximately ten days in each four week period depending on COVID-19 travel restrictions; and
·There is no basis for adjustments in favour of either party in respect of s 90SF(3) factors.
[2] Applicant’s case outline, page 12, paragraphs 20 and 21.
It was overall the position of the respondent that:
·This is not a matter where the Court could be satisfied that the threshold necessary to justify the making of an order for settlement of property is met;[3]
[3] Stanford & Stanford (2012) FLC 93-518 (“Stanford & Stanford”).
·The applicant made no financial contribution to the acquisition of the Suburb C property, neither by way of initial deposit or by way of payments to her father in reduction of the debt to him;
·The applicant was never involved at any level in financial discussions between she and her father;
·The applicant always regarded the Suburb C property as hers and accordingly declined to contribute any monies towards the conservation or preservation of the property;
·The parties always kept completely separate finances;
·The applicant utilised his income for his own purposes;
·She was almost solely responsible for all household outgoings and children’s expenses in circumstances where the applicant failed to contribute to these outgoings, save and except for paying the home telephone bill which included Foxtel and the internet;
·The applicant also made little to no non-financial contribution in that he did not assist in the care of the children, did not do other than rare and minimal housework either inside or outside of the house;
·All of these factors support the respondent’s position that it is not just and equitable to make any order for settlement of property in favour of the applicant;
·In the event the Court determines such an order should be made, the lack of contribution by the applicant at either a financial or non-financial level speaks against a finding of contribution in his favour, and
·In circumstances where the applicant was controlling of and violent to her on an almost constant basis throughout the period of their relationship, she was justified in seeking that the Court find her contribution had been made significantly more arduous such that greater weight should be given to that contribution in accordance with the decision in Kennon & Kennon (1997) FLC 92-757 (“Kennon & Kennon”).
The evidence
The applicant relied on the following documents:
·Further Amended Initiating Application filed 15 July 2021;
·Affidavit of Mr Esmore filed 15 July 2021;
·Affidavit of Mr Esmore filed 20 September 2021; and
·Financial statement of Mr Esmore filed 15 July 2021.
The applicant was cross-examined by the respondent’s counsel.
The documents relied on by the respondent were as follows:
·Third Further Amended Response to Initiating Application filed 14 July 2021;
·Affidavit of Ms Blandford filed 21 August 2021;
·Affidavit of Mr F Blandford filed 8 September 2021;
·Affidavit of Mr V filed 21 August 2021; and
·Financial statement of Ms Blandford filed 8 September 2021.
The respondent as well as Mr F Blandford and Mr V were cross-examined by the applicant’s counsel.
The law
Prior to making any order for property settlement I must be satisfied that it is just and equitable to make an order adjusting the property interests of the parties.[4]
[4] Stanford & Stanford.
Property settlement disputes between parties to a de facto relationship are determined by reference to the terms of s 90SM of the Family Law Act 1975 (Cth) (“the Act”). Section 90SM(3) is in the following terms:
The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Counsel for the respondent submitted that the Court could not be satisfied in the circumstances of this case that such test could be satisfied.
In Stanford & Stanford the Court said at [36] to [40]:
36.The expression ‘just and equitable’ is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition…
37.…it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property…The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
38.…a property settlement order…is not a power that is to be exercised according to an unguided judicial discretion…
39.Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is ‘just and equitable’ to make the order is not to be answered by assuming that the parties' rights to or interests in marital property are or should be different from those that then exist… The question presented by s 79 is whether those rights and interests should be altered.
40.…whether making a property settlement order is ‘just and equitable is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised ‘in accordance with legal principles, including the principles which the Act itself lays down’. To conclude that making an order is ‘just and equitable’ only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
(footnotes omitted)
The Court went on to say in [42]:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
It was the position of the respondent, as submitted by her counsel, that the relationship between the applicant and the respondent was extraordinary.
It is common ground that the parties did not jointly own the Suburb C property or any other assets over the period of their eighteen and a half year relationship.
The parties appear not to have any joint liabilities other than with respect to D School in respect of outstanding fees.
The parties maintained separate finances throughout their relationship. The applicant introduced no assets into the relationship.
By contrast, the respondent brought funds into the relationship from her accident which occurred in 1995. These totalled at least $118,000 as at February 2000.
Save as to superannuation, the only asset of significance remaining at the end of the relationship is the capital sum of $252,864.22 held on account of the respondent in the trust account of her solicitors.
It is the applicant’s evidence that at the time of purchase of the Suburb C property he understood finance to have been provided primarily by the respondent but also by the respondent’s father (previously the second respondent in these proceedings). He understood Mr F Blandford’s advance of funds to have been secured by mortgage over the Suburb C property. It transpired that was not the case. The Suburb C property was never subject to a mortgage. The contribution of the second respondent was enabled by way of him mortgaging property owned by he and his wife.
It was common ground that the applicant made no payments towards council rates, water rates and other utilities during the period the parties resided in the Suburb C property.
It was the applicant’s evidence that from approximately the time of commencing residence in the Suburb C property until separation he paid approximately $200 per week to the respondent in the belief that there was a mortgage held by the second respondent over the property.
He deposed to providing those funds to the respondent primarily by way of cash, sometimes in a sum greater than $200 and sometimes less than $200, and not always on a regular basis in circumstances where he went through periods of unemployment. It was his evidence that he understood those funds were to be provided to Mr F Blandford for the “mortgage repayments”.
It was his position that cash withdrawals from his bank accounts represented monies given to the respondent in circumstances where he purchased items such as groceries, fuel and other incidentals using his card and rarely used cash.
It was the respondent’s position that the applicant retained his earnings and applied them for his personal benefit other than him paying for internet and Foxtel services at their home, which on her case was because they were services which benefitted him. It was her evidence that all utility accounts for the Suburb C property were held in her sole name.
In paragraph 42 of the respondent’s trial affidavit she deposed to not knowing to what purpose cash funds withdrawn by the applicant from his bank account were put but they were “not”, according to her, applied for the benefit of the family.
In his written Summary of Argument filed 14 October 2021 her counsel submitted that he “lived off the Respondent, all the while taking the benefit of living in a family home with a swimming pool at Suburb C, the maintenance and upkeep of which was substantially undertaken by the Respondent’s father.”[5]
[5] Summary of Argument on behalf of the respondent, paragraph 20.
He further submitted that this was an extraordinary case and that the longevity of the relationship diminishes rather than enhances the applicant’s statutory claim under s 90SM(1) of the Act by emphasising the length of time the applicant has already enjoyed the benefit of the use of the respondent’s property and financial resources.[6]
[6] Summary of Argument on behalf of the respondent, paragraph 21.
It was the position of the respondent that the ending of the parties’ relationship did not interrupt or sever the parties’ assumptions and actions in respect to property, that what was his he regarded as his, and that he made no contribution to property he regarded as the respondent’s.
The respondent’s initial contribution of $118,000 towards the purchase of the Suburb C property was indeed significant.
Nevertheless, the clear intention behind the purchase was to provide a home for the respondent, the applicant and at that stage one child. They both attended at the auction. They had both been involved in selecting the property. They remained living in the property for some sixteen years after it was purchased.
The respondent relied upon the evidence of her father. On 21 June 2018 he filed a Response to Mr Esmore’s application seeking the following orders:
1.That the applicant and respondent 1 do pay to the respondent 2 such sum as represents all council rates, insurances, emergency service levies and water rates paid by the respondent 2 pertaining to the property at B Street, Suburb C in the State of South Australia and in addition thereto the improvements that were made by the respondent 2 in respect to the aforesaid property, such as erection of fence and materials, installation of heating and cooling and lawn.
2.That the applicant and respondent 1 do pay to the respondent 2 such sum as represents 54% of the current value of the aforesaid property or alternatively the aforesaid property be placed on the market for sale and be sold and from the proceeds of sale the respondent do receive 54% from the net proceeds of such sale.
On 23 September 2020 through his solicitors he filed an Amended Response. He sought the following orders:
1.The Second Respondent responds to paragraph 16 of the Amended Initiating Application and seeks final Orders that:
(a)from the net sale proceeds of the house property at B Street Suburb C (‘the property’) the following payments be made for the benefit of the Second Respondent:
(i)firstly, the capital gains tax assessed to the Second Respondent following settlement on the sale of the property on 31 July 2020
(ii)secondly, reimbursement of expenses paid by the Second Respondent of $43,925
(iii)thirdly, an amount being 31.77% of the balance of the net sale proceeds
2.An interim payment in satisfaction of the amount calculated pursuant to Order 1 hereof in the amount of $100,000 be paid to the Second Respondent within 7 days
3.The balance of the net sale proceeds be held in the Second Respondent's solicitors trust account until further order
4.In the event the above Orders are not made by consent within 28 days and the Second Respondent is required to undertake further preparation for trial , the Applicant and the First Respondent do pay the Costs of the Second Respondent of and incidental to the within proceedings
5.Otherwise the Second Respondent does not respond to the further orders sought in the Amended Initiating Application with respect to property division between the Applicant and the First Respondent
6.The Second Respondent responds to the Further Amended Response of the First Respondent to the Initiating Application filed on 22 September 2020 paragraph 1.2 that:
(a)after payment of capital gains tax, the reimbursement of expenses paid by the Second Respondent should be $43,925
(b)the Second Respondent in addition is to be paid an amount being 31.77% of the balance of the net sale proceeds
(c)otherwise the Second Respondent does not respond to the further orders sought in the Further Amended Response of the First Respondent with respect to children 's matters or property division between the Applicant and First Respondent
7. Liberty to Apply
The property sold in July 2020 with gross sale proceeds of $433,864.22. This information was contained in paragraph 21 of the affidavit of Mr F Blandford filed 8 September 2021, together with his evidence that he met the upfront marketing costs incurred with the selling agency and the costs of obtaining costly taxation advice as to the Capital Gains Tax which the sale would attract in circumstances where the property was not his principal place of residence.
He deposed to paying all of the loan repayments due in respect of the T Bank Line of Credit which he had taken over his own property to contribute to the acquisition of the Suburb C property as well as all household outgoings in relation to the property including but not limited to council rates, water and sewer rates, water usage, emergency service levies and building insurance between the date of purchase in 2000 and sale in 2020. In paragraph 23 he deposed to all of those outgoings totalling over $35,000.
In paragraph 24 he deposed to making a direct financial contribution to the maintenance and improvement of the Suburb C property including installation of turf at a cost of approximately $400, installation of ducted central heating at a cost of $4,845, installation of pool fencing at a cost of $1,501 and the erection of a new boundary fence at a cost of $1,200, a total of $7,946.
In paragraph 25 he deposed to the respondent telling him that she wished to take responsibility for meeting household outgoings in relation to the Suburb C property in 2010 but defaulting in respect of those responsibilities. He deposed to this resulting in council rate arrears in two financial years which he paid for personally and thereafter to assuming responsibility for all the household outgoings and ensuring notices were directed to his residential address to ensure timely payment of the bills.
Although the respondent’s evidence contained in paragraph 40 of her trial affidavit was that all the utility accounts for the Suburb C property were held in her sole name, she did not dispute her father’s evidence that they had been paid by him.
Mr Blandford further deposed in paragraph 16 of his affidavit filed 8 September 2021 to the respondent agreeing to contribute something in the vicinity of $100 per week to service the debt that he had raised over his home to enable the purchase of the Suburb C property.
He deposed however to her contributions pursuant to the arrangement being short-lived and sporadic and ceasing within the first year of the property being acquired. He recollected in paragraph 17 that the respondent resumed making such payments in about 2013 for a very short period totalling “half a dozen or so electronic transfers.”
In paragraph 21.5 of the applicant’s trial affidavit he deposed to Mr F Blandford contributing the total sum of $61,951.13 to the purchase price of the Suburb C property.
On 17 August 2021 the claim of Mr F Blandford (the second respondent) was finalised by way of payment to him from the net sale proceeds of the Suburb C property the sum of $181,000.
That sum represented an amount slightly over 41.5 per cent of the net sale proceeds of the Suburb C property.
Mr Blandford contributed approximately 31.5 per cent of the funds required to purchase the property.
He deposed in paragraph 26 of his affidavit filed 8 September 2021 that the payment to him from the sale proceeds represented compensation in respect of his capital contribution to the purchase but that he had to compromise the amount of the reimbursements he was seeking.
I found Mr Blandford to be a reliable witness who with his wife had made considerable efforts over the years to help not only the applicant and the respondent but their children, without immersing himself in the details of their family life. I accept his evidence that he did not seek reimbursement from either of the parties for funds advanced not only for the purposes to which I have already referred but also for ad hoc financial gifts to the respondent from time to time for what he understood to be expenses relating to the children. I accept his evidence that he assisted in maintaining the property to a significant degree.
I found Mr F Blandford to be a more reliable witness than either of the parties.
I find on the evidence of not only the parties, but Mr Blandford, that:
·The property was purchased from funds provided by the respondent and her father;
·The applicant was not involved in financial discussions regarding the purchase but was involved in the selection of the property;
·The property was intended to be a home for the respondent, the applicant and their family;
·It was regarded as such by Mr F Blandford;
·The property was utilised for that purpose for a period of sixteen years;
·Neither the applicant nor the respondent made any appreciable contribution to Mr Blandford in respect of the costs to him of the finance he provided towards the purchase of the property, nor with respect to payments he made on account of utility bills;
·At no time prior to being served with the application for settlement of property was any request made by Mr Blandford of either the applicant or the respondent for repayment of any funds advanced to them or on their behalf from the date of the purchase of the property in March 2000;
·At settlement Mr F Blandford received a capital sum representing approximately 41.5 per cent of the net sale proceeds;
·As of 22 January 2016 the applicant and the respondent ceased living in a de facto relationship. Thereafter there was no common use of the Suburb C property by the parties. The respondent remained living in the property for some twelve months or so after separation;
·Thereafter the property was occupied by the parties’ son Mr V pending sale; and
·The applicant sought an order for settlement of property from the Court by application dated 19 January 2018.
There is no evidence to suggest that during the relationship the property was regarded by either party as anything other than their family home shared by them and their children, taking into account the change in the living circumstances of the boys as they became older.
The respondent does not adduce evidence to suggest that she advised or informed the applicant at any time during the period they occupied the property that she regarded the property as being owned by her and a property in which the applicant had no interest.
There is no reliable evidence adduced by either party to suggest that the applicant said or did anything during the period of the relationship to lead the respondent to the belief that he considered the Suburb C property was owned solely by her and that he had no interest in that property.
The existing property arrangements between the purchase of the property in 2000 and the ending of the relationship in January 2016 were that notwithstanding the respondent’s capital contribution to the purchase of the property and no such contribution by the applicant, neither party thereafter contributed to the cost of Mr F Blandford’s finance, utilities or any significant maintenance, and there was no requirement of them by Mr Blandford that they do so.
Taking all of those matters into account I am satisfied that the just and equitable requirement is readily satisfied.
The parties decided to separate in January 2016. They are no longer living in a de facto relationship. Since that time there has not been and in the future there will not be the common use of the property in which they resided. The property has been subsequently sold resulting in net proceeds of sale being available for division between the parties depending on the Court’s consideration of the contributions of the parties to the asset pool, and their needs pursuant to s 90SF(3) of the Act.
In those circumstances it is necessary for the Court to:
(a)determine the asset pool available for distribution;
(b)consider and make findings as to the parties’ respective contributions to that pool in accordance with the provisions of section 90SM(4) of the Act; and
(c)consider and make any necessary adjustments to those findings taking into account the relevant matters under the provisions of section 90SF(3) of the Act.
Asset pool
The asset pool in this matter is modest and in the main agreed between the parties.
The agreed assets are as follows:
Item No.
Asset
Value
1.
Net proceeds remaining from sale of B Street, Suburb C
$255,864.22
2.
Applicant’s Motor Vehicle 1
$1,500
3.
Respondent’s Motor Vehicle 2
$500
4.
Applicant’s CBA Smart Access account #...45
$1,437.63
5.
Applicant’s CBA Investment account #...39
$1,800.77
6.
Applicant’s Z Bank account #...49
$3.98
7.
Applicant’s Z Bank account #...68
$39.48
8.
Applicant’s U Company account
$520.30
9.
Applicant’s furniture and effects
$1,000
10.
Applicant’s CommSec shares
$570
11.
Respondent’s furniture and effects
$1,000
12.
Respondent’s Commonwealth Bank of Australia (“CBA”) account #...79
$2459
TOTAL:
$266,695.38
It was the position of the respondent that rather than the value of the applicant’s shares being included at their current value of $570, there should be an “add back” in the sum of $20,000 being the amount he included in paragraph 38 of his financial statement filed 19 January 2018 as the value of his CommSec investment.
In paragraph 42 of the applicant’s trial affidavit he deposed to suffering the workplace injury in about mid-2015 and suffering a ruptured “ACL” in his knee. He deposed to losing his employment at R Company following upon the accident because of issues with respect to “logging” the claim with WorkCover, but deposed in paragraph 66 of that same affidavit to having received the sum of $60,000 for redemption of weekly payments and redemption of future medical expenses following upon the workplace accident.
In paragraph 67 he deposed to receiving $53,000 of those compensation monies after payment of legal fees in the sum of $7,000, and in paragraph 68 to using that $53,000 to open the Commonwealth Bank Smart Access account.
He deposed to withdrawing just over $5,000 to purchase a vehicle from those funds, and further in paragraph 70 to the funds otherwise having been depleted and applied to general everyday expenditure over the past five years.
No mention was made in the applicant’s trial affidavit as to using those funds to purchase shares.
The applicant was cross-examined with respect to those issues.
He agreed that in 2018 he had Australian shares to a value of $20,000 in his CommSec account. When asked what had happened to those funds he said they had been expended on legal fees and other things which he further described as being “costs of living”. When asked how he had come to have $20,000 in Australian shares in January 2018, he replied that it was from his payout that he had received in respect of a knee injury.
Exhibit W2 comprised the statements relating to the applicant’s Commonwealth Bank of Australia account #...45 for the period 8 June 2016 to 30 December 2016. The documents record the account being opened on 8 June 2016 with a cash or cheque deposit of $53,000.
In cross-examination he was asked whether it was possible that transfers of $255 each time from that Commonwealth Bank account to another “Netbank” was a transfer for the purpose of buying shares. He agreed that it was possible that was used for the purchase of shares. When it was further put to him that it was unlikely that when he purchased shares on CommSec the price was only $255, he responded that he was just suggesting it might be, particularly when lots of the shares were valued at 1c and 2c.
When it was put to him by Mr Tredrea that the transfers in the amount of $255 from his Commonwealth Bank account were likely to be to another bank account in his name, he replied “I wouldn’t have a clue”. He agreed after inspecting the documents contained in W2 that no transactions in those statements made reference to transfers to CommSec direct from that account.
The overwhelming majority of debits from the Commonwealth Bank account that he started with a deposit of $53,000 were every small amounts. However, a pattern of transfers to “other Netbank” commenced on 23 September 2016 with the amount of $255 being transferred to that “other Netbank” with thirteen such transfers in the same amount being made from that account up to and inclusive of 23 December 2016, a total transfer of $3,315. The payments were made on a weekly basis.
When it was put to him in cross-examination that between January 2018 and the time of trial he had sold shares from time to time to a value of $19,500 and used those funds for his own purposes, he denied the proposition and said that he had lost approximately $10,000 as a result of one company in which he had shares “rolling over in the share market and causing a big loss”.
When asked if he had any paperwork to support that assertion he replied that he got paperwork when he bought shares but when companies went south he couldn’t trade out.
When asked if he had invested $10,000 or more in “speccies” he replied that he had and that his loss could all be seen on the net.
He agreed that he had used some funds from the sale of shares to pay legal fees but was unable to say exactly how much had been used in that regard as it had been paid to his previous solicitors. He agreed he used some of the funds to cover general living costs.
When he was asked why he did not immediately say that some $10,000 of the $20,000 had been lost as a result of the failure of a company rather than during the series of questions asked of him, he replied that it was “a big lie to make up”. When again asked why he had not said that in answer to the first question he said it was all part of a big picture.
The applicant was asked by the respondent’s counsel whether he considered that part of the monies from the Suburb C sale were due to him as a result of his contributions and he replied that he and the respondent were a partnership. It was then put to him that if that was the case did he consider that the respondent was entitled to a part of his shares and he replied “if we are in a partnership – sure”.
When asked why he was not proposing a share of that asset with the respondent if he was claiming a share of the Suburb C sale proceeds he replied questioning why the respondent was not paying child support or school fees, which led to a discussion of the school fee liabilities.
It was the position of the respondent that the sum of $20,000 should be “added back” and included in the list of the parties’ assets as an asset that had been retained by the applicant.
In the case of C & C [1998] FamCA 143 at [45] and [46] the Court, in reference to the question of “add backs” said:
45.…In a case involving the magnitude of the assets of this case, in our view it is unreasonable to conduct a microscopic examination of each of the parties’ items of post-separation expenditure with a view to determining whether or not it is appropriate that they be brought into account in dividing up the asset pool between them…
46.Whilst not seeking to place a fetter upon the exercise of discretion of a trial judge in individual cases, it seems to us that the concept of adding monies reasonably disposed of back into the pool ought to be the exception rather than the rule. The parties are entitled to reasonably conduct their affairs post‑separation in a manner that is consistent with properly getting on with their lives…
In Edgehill & Edgehill [2007] FamCA 1102 the Full Court was required to consider the issue of whether or not the wife’s post-separation expenditure should be “added-back” into the asset pool where it was asserted that there was no explanation of that expenditure. In [57] and [58] the Court said:
57.The treatment of post separation earnings and income, as well as disposal by one party post separation of assets acquired during the parties’ marriage, has been considered in a number of cases, in particular in Chorn & Hopkins (2004) FLC 93-204…and more recently in SMB & MFB [2006] FamCA 46 and Gollings & Scott [2007] FamCA 397. In Chorn & Hopkins the Full court considered post separation expenditure by parties, particularly expenditure for legal costs. In their discussion, at para 21, their Honours referred to the principle established in Townsend & Townsend (1995) FLC 92-569, namely that where ‘one party has disposed of an asset which could be described as a ‘matrimonial asset’ in the sense that it was an asset which was owned by one or both of the parties at separation and in which the other party would have a legitimate interest’ a trial Judge could, in the exercise of his or her discretion, ‘add back’ such an asset as a notional asset to the pool of property to be divided between the parties.
58.In Gollings the Full court dealt specifically with post income expenditure by the husband, and confirmed the principles established in earlier cases that parties are entitled to get on with their own lives post separation, and generally post separation expenditure for reasonable living expenses should not be brought to account…
At the time the parties separated in January 2016 they were both in receipt of very modest income. That indeed seems to have been the root cause of much of the toxic disarray in which the parties conducted their relationship for the majority of its eighteen and a half years.
There is no evidence that either party retained any funds of any significance whatsoever at separation.
A perusal of the bank statements contained in exhibit W2 for the period from when the account was opened on 8 June 2016 until the last date of the statement being 30 December 2016 illustrates that save as to the sum of $3,315 of the $39,000 withdrawn from the account in that time, the remainder was expended in small amounts mostly on several occasions each day to pay for a myriad of normal daily living expenses. The only other exception was an amount slightly in excess of $6,000 for the purchase and registration of a motor vehicle and a jewellery item being purchased for $1,008 on 18 June 2016.
The workplace accident suffered by the applicant occurred in mid-2015, some six months prior to separation. Thereafter, the applicant was unemployed on his evidence for between six months and a year. He was unemployed at the date of separation.
He received the funds some six months after separation. On his evidence they were a redemption of weekly repayments and the redemption of future medical expenses. He did not adduce any evidence as to the breakup of the payment. This is evidence that was available to him.
If the payment was not taken into account by the Court, it would have the effect of the applicant retaining for his sole use funds that at least in part replaced what would have been his earnings for the last six months of the period of the parties’ cohabitation.
I am satisfied that the applicant could have been of far more assistance to the Court with respect to the topic of issues arising from the disposition of the funds in his Commonwealth Bank account if he had chosen so to do. The tenor of his evidence with respect to issues generally but in particular to his use of those funds illustrated a general disinterest in providing specific details of which I am satisfied he was well aware.
This is a matter in respect of which the evidence, including as to the alleged loss of $10,000 of his share investment due to a company “falling over” would have been easily available to the applicant and could have been produced by him.
I am satisfied that it would be appropriate to include in the list of the parties’ assets the sum of $20,000, not on the basis of any shares that the applicant may have held but rather on the basis that the net payment of $53,000 that he received represented a combination of lost wages for a period of approximately six months prior to separation and six months post-separation, as well as future medical expenses.
One half of that amount is $26,500. The applicant chose not to put evidence before the Court as to what proportion of those funds were wages and what were medical expenses.
Nevertheless, it should be reduced by the amount of $6,500 being approximately equal to the amount expended by the applicant on the purchase and registration of a motor vehicle which has already been taken into account in the list of assets.
I find that the parties’ gross assets comprise:
Item No.
Asset
Value
1.
Net proceeds remaining from sale of B Street, Suburb C
$255,864.22
2.
Applicant’s Motor Vehicle 1
$1,500
3.
Respondent’s Motor Vehicle 2
$500
4.
Applicant’s CBA Smart Access account #...45
$1,437.63
5.
Applicant’s CBA Investment account #...39
$1,800.77
6.
Applicant’s Z Bank account #...49
$3.98
7.
Applicant’s Z Bank account #...68
$39.48
8.
Applicant’s U Company account
$520.30
9.
Applicant’s furniture and effects
$1,000
10.
Applicant’s CommSec shares
$570
11.
Respondent’s furniture and effects
$1,000
12.
Respondent’s Commonwealth Bank of Australia (“CBA”) account #...9
$2459
13.
Applicant’s funds from knee injury
$20,000
TOTAL:
$286,695.38
Liabilities
The parties were agreed that they were jointly liable for outstanding school fees in the sum of $2,192.55.
In the Summary of Argument filed on behalf of the applicant by his counsel Mr Praolini on 11 October 2021 there is reference in Part G, being the table of assets and liabilities, to a liability that the applicant seeks to include in the sum of $2,262.20 for “fines”.
There is no reference in the trial affidavit of the applicant as to that issue and in the Balance Sheet tendered to the Court by the respondent’s counsel at the commencement of the hearing, the respondent’s position was that that amount should not be brought into account as it arises from the applicant’s criminal behaviour.
In cross-examination the applicant was questioned as to how he came to have a “victims of crime liability”.
In paragraph 53 of the applicant’s financial statement he deposed to owing $4,454 in respect of school fees, TAFE fees and fines.
In circumstances where the parties were agreed that the liability with respect to school fees for the purposes of trial is $2,192.55, the liability in respect of the fines appears to be the $2,262.20 referred to in the case outlines of both counsel.
I do not consider it appropriate to include that amount as a liability of the parties for the purpose of these proceedings when on the evidence of the applicant in cross-examination it arose following upon him being found guilty of assaulting a person who subsequently applied for compensation and succeeded. I agree with the submission of the respondent’s counsel that it has arisen from the applicant’s criminal behaviour.
Accordingly, I find that the total liabilities to be taken into account for the purposes of these proceedings are the outstanding school fees in the sum of $2,192.55.
Taking all of those matters into account I find the parties’ net non-superannuation assets to total $284,502.83.
Superannuation
The applicant deposed to superannuation interests as at 15 July 2021 in the sum of $92,910.
In the respondent’s financial statement filed 8 September 2021 she deposed to superannuation interests in E Super as at the date of separation, being January 2016, in the sum of $138,217.25.
The respondent’s counsel did not include any reference at all to the parties’ respective superannuation interests in the Balance Sheet tendered to the Court on 1 November 2021.
In paragraph 8 of the respondent’s trial affidavit she deposed to the superannuation figure referred to in her financial statement being current as at 30 June 2015.
In the case outline filed on behalf of the applicant it was stated in Part G that the balance of the respondent’s superannuation entitlements as at 13 July 2021 totalled $247,613.78.
In paragraph 4.1 of the affidavit filed by the applicant on 20 September 2021 he deposed to and annexed a response to a Form 6 from E Super with respect to the respondent’s superannuation entitlements confirming a value of $247,613.78 as at 13 July 2021.
I accept the submission made on behalf of the applicant that the appropriate value to ascribe to the parties’ superannuation interests for the purpose of trial is $340,523.78.
Taking all of those matters into account I find the total asset pool for the purposes of these proceedings to be $625,026.61.
It is of significant concern that the Court is called on to determine at trial the parties’ respective interests in such a modest asset pool in circumstances where the applicant’s legal costs to pursue the matter appear to be approximately $45,000 and the respondent’s legal costs approximately $77,000, a combined cost of over $120,000.
Contributions
It was the position of the respondent that the applicant had made no contributions in the nature of those referred to in s 90SM(4) of the Act.
That section is in the following terms:
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) otherwise in relation to any of that last‑mentioned property;
whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii)otherwise in relation to any of that last‑mentioned property;
whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(c)the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and
(e)the matters referred to in subsection 90SF(3) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.
It was the position of the respondent that neither party had contributed to any property owned by the other of them and that extended to the net proceeds of sale of the Suburb C property to which she considers herself to be solely entitled. That is likewise her position with respect to her superannuation.
Although the applicant conceded that he made no direct financial contribution to the acquisition of the Suburb C property, it was his case that he had made direct financial contributions to the conservation and improvement of the property, in particular with respect to expenditure on the swimming pool. It was his position that he had also made contributions other than financial contributions by way of work in the garden and in respect of the swimming pool, contributing to the conservation of the property. He also deposed to his contribution in the capacity of homemaker and parent.
It is common ground that the Suburb C property was purchased in the name of the respondent’s father. The respondent contributed $118,000 towards the purchase of the property and her father provided the balance of approximately $62,000.
There was no mortgage on the property. Neither party paid the utility expenses in relation to the property nor did they pay to the respondent’s father any funds of any significance whatsoever in reduction of the funds advanced by him to finalise the purchase.
Both parties earned very modest income throughout the period of the relationship.
On the respondent’s evidence, at the time she ceased working at M University in October 2016 her income was about $50,000. There is no evidence of what it was in previous years.
In the respondent’s affidavit filed 21 August 2021 she deposed in paragraph 34 to the applicant’s taxation records for the financial years ended 30 June 2010 to 30 June 2016 inclusive, evidencing modest income.
It was the position of the respondent that not only did the applicant earn less money than she did but that she paid the overwhelming majority of the families’ living expenses, with the applicant keeping his earnings for his own purposes. She conceded that he paid for the internet and Foxtel services at what she referred to in paragraph 37 as “our home”.
She deposed in paragraph 38 to paying all of the children’s child care, educational, extracurricular and social expenses, the families’ entertainment and discretionary expenditure, the groceries and household supplies and all necessary items for herself and the children.
She deposed to paying all of the utility expenses for the home. It was apparent however from the evidence contained in paragraph 54 of her trial affidavit as well as the evidence in the affidavit of her father Mr F Blandford that utilities were paid for by her father.
Exhibit W1 was a bundle of statements relating to the applicant’s Z Bank account #...49 entitled “Everyday Account” for the period 1 October 2015 to 31 December 2015. During that period of time the applicant was in receipt of unemployment benefits from Centrelink as evidenced by regular credits from Centrelink.
The transactions on that account can only be referred to as “ordinary everyday expenses”. They include numerous purchases at McDonald’s, IGA supermarket, Woolworths, AA Company, Coles, BB Hotel, Dan Murphy’s, Bunnings, DD Company, Big W, Ikea, and the like. Almost all of the withdrawals were for small amounts between $5 and $50.
It was the applicant’s evidence that almost all purchases he made for himself and the family were made by way of payment by card. There was no evidence in that bank statement or in any other evidence put before the Court by the applicant that he had paid any amount by way of cash to the respondent on a regular basis as deposed to by him in his evidence.
The respondent deposed to many of their heated arguments revolving around finance.
That is hardly surprising in circumstances where the combined income of the parties was clearly not even enough to pay for the utilities for their household consisting of two adults, four children for a significant period of time, and ultimately two children.
The parties remained living together for eighteen and a half years.
By about 2007 when Mr V was 10 years old, he was spending more and more time in the home of his maternal grandparents such that by the age of 16 years he lived there on a fulltime basis.
Mr W was born in 2003. It would appear that by the time he was aged 12 years (mid-2015) he was also living on a fulltime basis with his maternal grandparents.
It is the evidence of the respondent that both of the boys went to live with her parents because they were unhappy living in the family home where they were exposed to violence on the part of the applicant.
The applicant was cross-examined as to that issue and denied that Mr V left the home because his (the applicant’s) behaviour towards Mr V and the respondent was intolerable.
He said that Mr V began to move to his grandparents’ home in various stages from the time he was about 9 or 10, at which time Mr W was young and the respondent was unable to cope with caring for both children. When he was asked whether he was suggesting it was the respondent’s fault he replied that if he had had his way all of the children would have been living with them under the same roof.
When it was suggested to him that Mr V’s leaving home had nothing to do with the respondent and her capabilities, but rather his behaviour, he said that was completely and utterly untrue, and that the respondent had “dumped” the boys just like she had “dumped” the girls now. He said that Mr V was pushed out when Mr W arrived and in due course Mr W was pushed out when the twins arrived.
He said following upon Mr W’s birth the respondent was unable to give Mr V sufficient attention, that her parents had thought she was “not a good parent” and her “schizophrenia” meant she was no good at parenting.
He said that he loved Mr V and would never do anything to hurt or “dump” Mr V.
He also denied in cross-examination that Mr W had left the home to live with his grandparents because of his (the applicant’s) behaviour to Mr W and the respondent. He said Mr W had left because following upon the birth of the twins the same cycle had begun to occur, with Mr W gradually moving towards living with his grandparents. He said he noted that when he and the respondent separated and Mr W could have moved back to live with his mother in the Suburb C property, he chose not to.
When he was asked why he had not rung the respondent’s parents and talked with them about Mr V coming home for him to look after, he replied that he was not sure how long by that time the respondent had suffered from mental health problems, but he knew that she was very stressed and thought that Mr V being at his grandparents was best for the children. He conceded that he was not “the best dad” but said he was not the parent that “they said I am”.
In the family report prepared in respect of parenting matters Mr V had the opportunity to talk about issues with the family consultant. He told her, as reported in paragraph 84, that he had been living with his grandparents intermittently from the age of 10 years but permanently since he was 15 years old.
He told her he had decided to reside with his grandparents permanently at the age of 15 after a “falling out” with the respondent. He told Ms FF the respondent was the “parent of the house”. He told Ms FF he did not get along with his father and they didn’t have much of a relationship for as long as he could remember and that although he didn’t acknowledge it at the time, he could see now that the respondent was “stressed out and unhappy” and “had a lot to deal with”.
He talked with her about the applicant not being involved with the children’s schooling or taking much of a role with the children, and that at times the applicant became annoyed with the children, that there were “serious repercussions” and that the applicant would be “physically” abusive. He told Ms FF the applicant was very angry that he (Mr V) was staying at his grandparents’ home.
He referred to being friends with his mother after them not working well in a mother/son relationship. He referred to many instances of violence between his parents, with the applicant always being the perpetrator and the respondent having the capacity to be aggressive.
He talked of hearing things happen when living at home and there being screaming, yelling and banging. He referred to an incident where the applicant threw coffee over the respondent after the family had been through “the drive through at Maccas”. He referred to observing the applicant yelling at the respondent.
Mr W also spoke with the family consultant. He referred to the applicant “being never much of a dad to begin with” and told Ms FF that he witnessed violence in the home from the applicant towards the respondent, himself and his brother Mr V. He referred to the applicant hitting and kicking Mr V. He reported as not thinking the applicant really knows how to look after children but to not being concerned about his safety from the applicant. He said he had moved to his grandparents’ home initially due to the hostile environment created by the applicant that made him seek a safer place for himself. These issues were reported in paragraphs 69 and 70 of the family report of Ms FF dated 4 December 2018.
The girls Y and X also spoke with Ms FF for the purposes of a family report. The results of their interviews were set out in paragraphs 72 to 83 of the family report.
They seemed to have significantly less complaint of their father than their brothers, but Y referred to the applicant being mean to her mother and getting angry easily especially when he is driving. She was unable to express whether she felt safe with her father.
Both children talked of things they enjoyed doing with their father although Y found going to the gym with him boring.
X described her mother waking her and Y up to go to the police station on one occasion when her parents were living together and seeing a smashed chair out the front of the house but not knowing how it got smashed.
It is difficult to avoid the conclusion that for almost all of the parties’ relationship there was a significant air of chaos and dysfunction in their household.
The respondent confirmed both in her trial affidavit and in cross-examination a long history of significant mental health challenges.
The funds she utilised to purchase the Suburb C property were acquired by way of compensation arising from serious injuries she suffered in 1995 when struck by a motor vehicle crossing a road.
In cross-examination she told the Court she did not know whether the accident had happened as a result of an attempt at self-harm. She said she walked out between two parked cars and has no other recollection of the event.
She confirmed that in 2005 she spent four weeks in the CC Hospital following upon a psychotic episode and was diagnosed as suffering from schizophrenia. She told the Court she did not believe she had been hospitalised between that time and the end of the relationship. She confirmed however she had further admissions to hospital in 2016 after the breakdown of the relationship and a brief one over-night stay in 2018.
She confirmed that following the breakdown of the relationship she was diagnosed with borderline personality disorder, but when asked if she agreed with that diagnosis she replied that she was not an expert.
She further confirmed that she drank daily throughout the relationship, and that the amount varied between one to two bottles of wine. This accorded with the applicant’s evidence-in-chief.
In paragraph 89 to 118 of her trial affidavit the respondent set out her evidence with respect to the issue of family violence and the impact of the family violence on her.
In paragraph 94 she deposed to the applicant also drinking heavily on a regular basis which frequently led to unbearable behaviour towards her including verbal abuse and physical and sexual violence.
In cross-examination the respondent denied that she was intending to say in paragraph 89 of her trial affidavit that the applicant was the sole cause of her mental health challenges. She maintained the various specific allegations of violence set out in paragraph 94 of her trial affidavit.
When asked if the applicant was abusive to her by way of name calling on every occasion when he was drinking she said that was not the case, that she couldn’t quantify how often but that the abuse increased in the last couple of years, particularly when he was unemployed. With respect to physical violence she said that it occurred on “a handful of times per year – not daily or even weekly”.
When asked if in between the episodes of violence she was still subject to verbal abuse by the applicant she said that was the case but she couldn’t say how often as it was just “normal life”.
She confirmed that during the relationship “when things were good they were good and when they were bad they were horrible”, and in particular that the applicant did not support her or the children, and he was often unemployed.
When asked if she had ever reflected on her role in the arguments, she said that of course she had but she didn’t deserve to get slapped around. She said that near the end of the relationship she resorted to hiding in the children’s bedrooms.
She confirmed that she obtained an Intervention Order with the assistance of the police when the applicant was arrested in 2014 and charged with assault and that after that incident she was regularly seeing a family violence officer at the Suburb EE Police Station.
The most charitable description that could be applied to the applicant’s evidence in cross‑examination as to the respondent’s allegations of violence is that it was flippant and dismissive.
He confirmed he had been found guilty of assaulting a man who worked in a bike shop, perhaps in 2013. It was that offence that led to him having the debt referred to in paragraph 165 hereof.
When questioned about the Intervention Order in 2014 he said he thought the respondent called the police after an argument rather than because he had held her on the ground and placed his hands around her neck to the extent that she thought he was strangling her.
He was asked whether prior to the incident where police had attended at the Suburb C property and arrested him at the time of separation he had been stalking and intimidating the respondent. His response was to laugh, and reply that he lived with her and “how can you stalk someone you live with”.
I find that his evidence was deliberately vague about all allegations of violence put to him in cross-examination, and that his responses were entirely unsatisfactory.
It was the respondent’s evidence that the verbal abuse, and on occasions the physical violence towards her on the part of the applicant was worse when he had been drinking alcohol.
It was put to the applicant in cross-examination that the reason police attended at the home on two or three occasions was because he and the respondent had been involved in what he described as “barneys”. He confirmed that to be the position. He told the Court he did not think he had been drinking on those occasions and denied that police records said otherwise. Those records did not form part of the evidence of either party.
He denied that two breaks in the gyprock in the kitchen wall evident in a photograph shown to him that had been taken during a valuation exercise of the property,[7] resulted from him throwing the respondent against a wall during a “barney”. He said the holes were not there when he ceased living at the property. He denied that the holes aligned with the respondent’s head and hip.
[7] Exhibit W4.
I am satisfied that the applicant was frequently verbally abusive to the respondent during arguments and that on occasions he was physically violent towards her.
It was the respondent’s evidence in cross-examination that the applicant was physically violent to her on a “handful of times per year – not daily or even weekly”.
The issues raised by all four of the parties’ children to which I have referred in paragraphs 206 to 215 of these reasons is supportive of a finding of the children being exposed to both physical and verbal altercations between their parents on a regular basis.
The respondent was honest in cross-examination in conceding that she was not suggesting her drinking had nothing to do with the parties’ arguments.
Mr V spoke to Ms FF about the applicant always being the perpetrator of the violence but the respondent having the capacity to be aggressive.
There is no excuse for violence in any form.
For the purposes of the Family Law Act 1975 (Cth) violence is defined in paragraph 4AB of the Act as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
There is no doubt that the parties in this matter frequently engaged in arguments, which on occasion involved violence, at a time when one or both of them had been drinking and/or the respondent was struggling with her mental health issues.
I am satisfied that a great deal of those arguments arose in the context of limited income earned by each of them and the respondent’s firm belief that the applicant was not providing financial or other support for the children and herself.
I am not satisfied on the evidence that was the case.
I find that both parties drank heavily throughout the relationship. I make that finding on the basis of the respondent’s concession and what I consider to be her more reliable evidence about the conduct of the applicant.
Neither of the parties earned significant income and had four children with all of their associated expenses. It is likely considerable funds were expended by both of the parties on alcohol.
There is no doubt that the respondent had far more regular employment save for her fairly brief periods of maternity leave. At certain periods the applicant was unemployed. Taking into account his evidence with respect to his various places of employment I am not satisfied that his employment was as irregular or for as long as suggested by the respondent. I am not satisfied on the evidence the interruptions to the applicant’s employment were deliberate.
I am unable to find on the evidence that either party spent significant sums on their own interests to the detriment of the family, save and except for my concern as to the likely expenditure by both of them on alcohol.
I am satisfied that both parties utilised their income for the benefit of the family overall. I find that it suited both the applicant and the respondent for the respondent’s parents to take on a greater role in the care and support of Mr V and Mr W. That role had the corresponding benefits of not only reducing the parties actual level of daily care required for the boys but also alleviated them of significant expense in circumstances where that was provided by the grandparents.
I find on the evidence that the respondent was most likely, as described by Mr V to Ms FF, the “parent of the house”. I am not satisfied however that the applicant had no role to play as regards parenting the children, particularly during periods when he was unemployed.
This is a difficult matter in which to make definite findings in circumstances where the evidence of both parties was in the main, vague and unsatisfactory, with few concessions being made by either of them.
I was not impressed by the evidence of the applicant as to the work that he did in and outside of the home with respect to maintenance, gardening and the like. I find overall, particularly taking into account the evidence of Mr F Blandford, this contribution to have been minimal to say the least. Nevertheless, I am satisfied that he did expend some funds on swimming pool repairs, assisted in those repairs and from time to time did some gardening work.
There is little doubt that both parties made it difficult for the other of them to function well individually and as parents in an atmosphere of:
·regular heavy drinking;
·regular heated arguments, and on occasions verbal abuse and violent arguments; and
·serious levels of dysfunction overall,
impacted, on occasion, by the respondent’s serious mental health challenges.
There is little doubt that on many occasions the respondent felt overwhelmed by her parenting responsibilities in particular, coupled with what I am satisfied was less than optimal support by the applicant in that regard. Likewise the respondent’s mental health issues would have, from my observations of him in the witness box, stretched the coping capacities of the applicant. Unfortunately both parties used alcohol to excess which would have exacerbated the situation overall.
I am satisfied however that the applicant’s violence towards the respondent in its various forms as described herein frequently had the effect of making her contributions more arduous than was necessary.[8]
[8] Kennon & Kennon.
Without the funds from the respondent’s injuries and the assistance of Mr F Blandford (in respect of which I am satisfied he has been recompensed to his satisfaction), the parties would have accumulated nothing by way of assets after their relationship of eighteen and a half years.
Post-separation contributions
Subsequent to the parties’ separation in January 2016 the applicant sought orders from the Court with respect to parenting issues.
An order was made by consent on 21 June 2016 providing that the parties have equal shared parental responsibility for X and Y and that the children live with each of them on a week-about basis.
The children’s time with the respondent was conditional upon her:
·Engaging with and keeping engaged with her treating psychiatrist and complying with all treatment and medication regimes as may be recommended by that treating psychiatrist; and
·Undertaking one supervised urinalysis drug screen test each month and producing all results to that test that are clear of any illicit drugs or non-prescribed medication.
The respondent was unrepresented at that hearing and had not filed responding documents.
On 19 January 2018, almost two years later, the applicant filed a further parenting application supported by an affidavit in which he alleged that the respondent was not complying with the terms of the existing parenting order, and deposing to the state of the respondent’s mental health at that time.
On the first return date being 28 February 2018 the 2016 parenting orders were suspended and replaced with an order that X and Y live with the applicant until further order, with the respondent to forthwith attend upon a psychiatrist and otherwise comply with the conditions of the original parenting order.
The respondent filed a Response and affidavit in support on 17 May 2018 and on 4 September 2018 a further order was made providing that from 1 October 2018 X and Y live with the applicant from the conclusion of school Monday until the commencement of school the following Monday and with the respondent at all other times.
In the respondent’s trial affidavit she deposed to the significant assistance provided to her by her parents whilst the children were in her care following upon separation. It is clear that they have continued to provide significant care for the children post-separation.
Parenting issues were finalised by way of order on 24 September 2020, which order provides for X and Y to live with the respondent and spend time with the applicant from Friday after school to the commencement of school the following Wednesday, being five nights of out each fourteen night period.
I am satisfied that the applicant has made a significant contribution post-separation by way of his parenting role over a period of some five and a half years.
I am satisfied that the parties’ contributions should be assessed as 70 per cent in favour of the respondent and 30 per cent in favour of the applicant for the following reasons:
·The respondent’s overwhelming financial contribution to the acquisition of the parties only substantial asset;
·The respondent’s superior contribution with respect to homemaking and parenting including by her contribution of her wages towards the support of the family generally;
·The applicant’s contribution by way of homemaking and parenting including by his contribution of his wages towards the support of the family generally;
·The contribution made on behalf of the respondent by her parents both during the period of cohabitation and post-separation with respect to the physical care of all of the parties’ children and the meeting of expenses for the children;
·The respondent’s contributions being made more arduous than necessary as a result of verbal and physical abuse directed towards her on a regular basis throughout the period of the relationship.
I find that the contribution percentage I have assessed should apply both to non-superannuation and superannuation assets.
It was the position of the respondent that there should be no adjustment with respect to superannuation.
The parties’ superannuation entitlements arose during the periods of their employment. I referred earlier herein to being unable to be satisfied that the interruptions to the applicant’s employment were deliberate on his part.
This was a long relationship. The applicant has continued to have employer contributions made on his behalf to superannuation entitlements post-separation. The respondent ceased employment some ten months after the parties separated. Since that time she has been self‑employed during periods of works and did not depose to continuing superannuation contributions.
I am satisfied that justice and equity would require, if the applicant’s superannuation entitlements are to be included at their current value, for the respondent’s superannuation to be treated likewise and apportioned on the percentage that I have determined.
Section 90SF(3) factors
The applicant is aged 48 years and the respondent is aged 44 years.
There is no evidence to suggest ill health on the part of either party save as to the mental health of the respondent, as discussed previously herein.
The applicant is employed as an allied health worker earning $923 per week. He receives government benefits in the sum of $160.65 per week.
The respondent is self-employed and deposes to income in the sum of $2,000 per week. Her evidence was that she works in Sydney, is paid in cash, lives at her place of work and is responsible for her own living expenses in Sydney. It is unfortunate in circumstances where she earns cash income that she has not filed taxation returns for any of the years ending 30 June 2019 to 30 June 2021.
She owns no property of any significant value but has an interest in the funds currently standing on her account in the trust account of her solicitors, the subject of these proceedings.
Her superannuation entitlements as at 13 July 2021 are $247,613.78. She has no other financial resources.
The applicant’s assets are likewise minimal totalling, according to his financial statement, $6,872.16.
The applicant has superannuation entitlements as at 13 July 2021 of $92,910.
The parties share the care and control of their twins X and Y aged 14 years on the basis of the existing consent orders such that the children live with the applicant for five nights out of each fourteen night period. The remaining time they live with their maternal grandparents. The respondent apparently travels when borders between New South Wales and South Australia are open to care for the children in her parents’ home for a period of ten days in each four week period. It was her evidence that she recently had two and a half months in Sydney and in 2020 three months in Sydney because of border restrictions.
The applicant deposes to very modest commitments necessary to support himself and X and Y when they live with him. He pays rent of $250 per week but does not depose to any expenses for food and household supplies and other outgoings. He does however depose to a surfeit of income over expenses of approximately $500. He deposes to having liabilities of $4,454 by way of school fees and fines to which I have referred earlier herein.
The respondent deposes to weekly income of $2,000 with personal expenditure of $1,455, again providing a surfeit of income over expenses of approximately $500. She deposes to modest commitments to support herself and the children totalling $1,060 by way of household food and expenses, dental expenses for the children, internet and mobile expenses for the children and financial support for her parents who are caring for the children the majority of the time.
I am satisfied that both parties are able to support themselves and the children albeit at a modest level. Neither party has the responsibility to support any other person.
The applicant deposes to living in a de facto relationship with his partner Ms GG who has a weekly income of $1,100. The applicant receives government benefits by way of family assistance in the sum of $160.65 per week.
The respondent does not depose to receiving any government assistance.
The applicant is living in rented accommodation with his partner. X and Y stay at that accommodation for five out of every fourteen nights. There is no evidence before the Court about the standard of that accommodation but I am satisfied in circumstances where the applicant deposes to a rental liability of $250 per week and an income of just over $1,000 per week inclusive of government benefit that the standard of living enjoyed by he and the children is modest.
The respondent lives at her parents’ home at Suburb O with the children Y and X when she is in Adelaide, which on her evidence is approximately ten days in every four weeks. She otherwise gave evidence that she lives in the same accommodation in which she works in Sydney, although she did not adduce any evidence as to the standard of her accommodation. I am satisfied that the home of her parents provides comfortable accommodation for the children and herself.
Prior to the parties’ separation the parties as well as X and Y were residing in the property at B Street, Suburb C. No evidence was adduced as to the standard of the accommodation save that over the years of occupation the property had become somewhat “rundown” and the pool had been unusable for at least some two or three years prior to separation.
The applicant is residing with Ms GG but save as to evidence in his financial statement with respect to her income averaging $1,100 per week there is no other evidence relating to the financial circumstances of their cohabitation.
The applicant’s evidence with respect to child support is that he is assessed to pay and is paying the sum of $54 per week by way of assessed child support for X and Y. He deposed to being up to date with his child support liabilities in paragraph 81 of his trial affidavit.
The evidence of the respondent regarding child support was vague to say the least. In cross‑examination she said she had not seen part of exhibit H3 which was the child support assessment for the period 21 January 2019 to 30 September 2019. She said that she was not aware of any child support assessment after the parties separated although she had applied for child support towards the end of 2016.
It was her evidence that the applicant indicated to her that he was expecting her to pay child support and the Child Support Agency told her that he had filed for an assessment of child support. She said she did not follow her enquiries up and was not aware of anything being paid to her by way of child support as she does not access her MyGov account.
She agreed she thought if the matter was pushed by her in 2016 she may have to pay child support to the applicant. She further said that she didn’t think that she would be having dealings with either child support or Centrelink and for that reason hadn’t checked her MyGov account.
She said she had not filed her 2018 income tax return until 2019, that it had been lodged via an accountant but she was unable to remember her taxable income for that year. When asked by the Court whether she had lodged her taxation returns for the financial years ended 30 June 2019 to 30 June 2021 inclusive she replied that she had only filed those for the 2019 and 2020 financial years.
Counsel for the applicant called for production and the following day she confirmed that neither documents were produced. She then told the Court she thought the last taxation return she filed was for the 2017/2018 tax year. When asked in cross-examination why that was so, she replied that she planned to file the additional returns at the end of these proceedings as she did not consider her financial position at this time to be relevant to these proceedings.
She was then shown the child support assessment for the period 1 November 2020 to 31 January 2022 indicating a weekly rate of child support to be paid to her by the applicant in the sum of $53.47 per week in accordance with the applicant’s evidence. She agreed that was what the document said but told the Court that she didn’t think that she got the money unless it was being put into an “old” Z Bank account.
In the assessment for the period 1 November 2020 to 31 January 2022 the applicant’s 2020 taxable income was declared to be $49,962 and the adjusted taxable income of the respondent was deemed to be $59,800 for the 2020 financial years. An asterisk next to that figure on the form states “This value has been determined according to a Change of Assessment decision. For more information about this, please call us on 131 272 (call charges may apply).”
I am satisfied that the applicant is paying child support at the rate assessed in the absence of any satisfactory evidence to the contrary from the respondent.
In paragraphs 81.2 and 81.5 of the applicant’s trial affidavit he deposed to the amounts determined by previous assessments being paid to the respondent by way of deduction from his salary and I accept his evidence in that regard. There is no doubt however that he does not consider he should be paying child support,[9] and the assessment for the period 1 November 2020 to 31 January 2022 is clearly the result of a change of assessment decision. On the evidence of the respondent this was clearly not instigated by her or anyone on her behalf.
[9] Applicant’s trial affidavit, paragraph 81.6.
Taking into account:
·the parties’ ages, state of health, income, property and financial resources;
·their capacity for appropriate gainful employment in which they are both currently engaged;
·their ability to each support themselves and the children they have a duty to maintain;
·being satisfied that they and the children are enjoying a standard that in all of the circumstances of this case is reasonable; and
·that the applicant is paying to the respondent child support, and that he has done so and will continue to do so when and so long as a child support assessment is in place,
I am not satisfied that any adjustment to my findings as to contribution are justified by any of the factors referred to in s 90SF(3).
CONCLUSION
I have determined that the parties’ net assets should be divided as to 30 per cent to the applicant and 70 per cent to the respondent. The net assets available for distribution including superannuation total $625,026.61 (rounded to $625,026).[10] Thirty per cent of that amount equals $187,508. Seventy per cent of that amount is $437,518.
[10] Paragraph 176 of these reasons for judgment.
I have determined that the parties’ net non-superannuation assets total $284,503.[11]
[11] Paragraph 168 of these reasons for judgment.
A 70/30 per cent division in favour of the respondent would result in her retaining net non‑superannuation assets in the amount of $199,152, with the applicant to retain net non‑superannuation assets of $85,351.
In accordance with the schedule contained in paragraph 159 of these reasons the applicant has retained gross non-superannuation assets in the sum of $26,872. He also retains the only liability to be taken into account, being school fees in the sum of $2,196, reducing the value of his non-superannuation assets to a net figure of $24,676.
The respondent currently retains in her possession or control net assets to the value of $259,823, including the net proceeds remaining from the sale of the Suburb C property standing to her credit in her solicitor’s trust account.
To effect the 70/30 division of net non-superannuation assets as I have determined will require a payment by the respondent to the applicant in the sum of $60,671.
A division of the parties’ superannuation entitlements such that the respondent retains 70 per cent of the superannuation pool and the applicant 30 per cent will require a split from the respondent’s superannuation to the applicant with a base amount of $9,247. Such a split will result in the respondent’s superannuation entitlements reducing to $238,367 and the applicant’s increasing to $102.157.
Taking all of those matters into account I am satisfied that overall my determination will result in a just and equitable division of the parties’ assets taking into account the value of the asset pool, the contributions made by each party as discussed in detail herein and in circumstances where I have found that there is no basis for any further adjustment pursuant to the provisions of s 90SF(3) of the Act.
For these reasons I make the orders as set out at the commencement of these reasons for judgment.
I certify that the preceding three hundred and fourteen (314) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mead. Associate:
Dated: 15 November 2021
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