EWING & BURST
[2015] FCCA 1035
•24 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EWING & BURST | [2015] FCCA 1035 |
| Catchwords: FAMILY LAW – Property – de facto relationship – dispute over the length of the relationship – where the de facto wife made no direct financial contributions – the future needs of the parties given a significant disparity in age – where the de facto wife will have the sole ongoing care of the child of the relationship given the de facto husband’s age and health. |
| Legislation: Family Law Act 1975 (Cth), ss.4AA, 90SB, 90SF, 90SM, 90ST |
| Aleksovski & Aleksovski (1996) FLC 92-705 (at 83,437) Clune v Collins Angus and Robertson Publishers Pty Ltd (1992) 25 IPR 246 (Federal Court of Australia) Dahl & Hamblin [2011] FamCAFC 202 Dickson & Dickson (1999) FLC 92-843 Fenton & Marvel [2013] FamCAFC 132 G & G (1984) FLC 91-582 Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143 In the Marriage of Clauson (1995) FLC 92-595 Jones v Dunkel (1959) 101 CLR 298 Kennon v. Kennon (1997) FLC 92-757 Norbis & Norbis (1986) 161 CLR 513 Pavey & Pavey (1976) FLC 90-051 Pierce & Pierce (1999) FLC 92-844 Russell & Russell (1999) FLC 92-877 Sippel & Sippel [2004] FamCA 201 Stanford v Stanford [2012] HCA 52 Tomasetti & Tomasetti (2000) FLC 93-023 |
| Applicant: | MS EWING |
| Respondent: | THE NEW SOUTH WALES TRUSTEE & GUARDIAN AS LITIGATION GUARDIAN FOR MR BURST |
| File Number: | CRC 206 of 2013 |
| Judgment of: | Judge Kemp |
| Hearing dates: | 15, 16 & 17 April 2015 |
| Heard at: | Coffs Harbour |
| Date of Last Submission: | 17 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 24 April 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Carty |
| Solicitors for the Applicant: | Burridge Harris & Flynn Solicitors |
| Counsel for the Respondent: | Mr S Priestley |
| Solicitors for the Respondent: | Conroy Stewart Spagnolo |
THE COURT ORDERS THAT:
The Court declares that pursuant to s.90RD of the Family Law Act 1975 (“the Act”) a de facto relationship, as defined in s.4AA of the Act, existed between the applicant as the de facto wife (“the wife”) and the respondent as the de facto husband (“the husband”), from (omitted) 2005 to 8 September 2012, for a period of 7 years and 5 months.
Within 7 days of the date of these orders, the New South Wales Trustee & Guardian as litigation guardian for the husband, pay to the wife the sum of $18,500.00 out of the moneys held by it on behalf of the husband.
The parties and the New South Wales Trustee & Guardian as litigation guardian for the husband take all necessary steps and execute all necessary documents to cause the property situated at and known as Property D, New South Wales (“the Property D property”) to be sold by private treaty at the earliest possible date at a price agreed on between the parties and the New South Wales Trustee & Guardian as litigation guardian for the husband and, failing such agreement, as determined by the President of the New South Wales Division of the Australian Property Institute or nominee and that the proceeds of sale be disbursed as follows:
(a)Payment of agent’s commission, advertising expenses and legal expenses of the sale;
(b)43.7% of the balance to the wife; and
(c)The balance remaining to the husband.
That in the event that the Property D property fails to be sold by private treaty within a period of 3 months from the date of these orders then each party and the New South Wales Trustee & Guardian as litigation guardian for the husband take all necessary steps and execute all necessary documents to cause the Property D property to be sold at auction at the earliest possible date, with the reserve price to be agreed upon between the parties and the New South Wales Trustee & Guardian and, failing such agreement, as determined by the President of the New South Wales Division of the Australian Property Institute or nominee and that the proceeds of the said sale be disbursed as follows:
(a)Payment of agent’s commission, advertising expenses and legal expenses of the sale;
(b)43.7% of the balance to the wife; and
(c)The balance remaining to the husband.
By consent, except as otherwise provided in these orders, the husband and the wife are each entitled to be the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively.
By consent, the husband and the wife do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.
By consent, that each of the parties shall do all acts and sign all necessary documentation to give effect to the terms of these orders and in the event that either party refuses or neglects to sign (within 14 days of a written request to do so) any document necessary to effect the terms of these orders, the Registrar of the Federal Circuit Court of Australia is hereby appointed pursuant to s.106A of the Act to execute such document on behalf of such party.
If either party seeks costs, then that party shall file and serve an appropriate application supported by any documentary material, within 28 days of today’s date, with a copy of the same to be forwarded to my Chambers. Any application made in accordance with this order be dealt with by way of written submissions, unless the parties wish to be heard orally. If no such application is made in accordance with this order, there be no order as to costs.
The matter is, otherwise, removed from the active pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Ewing & Burst is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
CRC 206 of 2013
| MS EWING |
Applicant
And
| THE NEW SOUTH WALES TRUSTEE & GUARDIAN AS LITIGATION GUARDIAN FOR MR BURST |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the de facto wife (“the wife”) for property orders.
The wife seeks orders as set out in her Initiating Application filed 19 August 2013, but updated to the following effect:
(1)Within 7 days of the date of these orders, the New South Wales Trustee & Guardian pay to the wife 60% of the moneys held by it on behalf of the husband.
(2)That the parties and the New South Wales Trustee & Guardian on behalf of the husband take all necessary steps and execute all necessary documents to cause the property situated at and known as Property D, New South Wales (“the Property D property”) to be sold by private treaty at the earliest possible date at a price agreed on between the parties and the New South Wales Trustee & Guardian on behalf of the husband and failing such agreement to be determined by the President of the New South Wales Division of the Australian Property Institute or his nominee and that the proceeds of sale be disbursed as follows:
(a)Payment of agent’s commission and advertising expenses and legal expenses of the sale.
(b)Payment of the wife’s credit card balance of $5,000.00 and the wife’s Centrelink debt of $3,500.00.
(c)60% of the balance plus $38,147.00 to the wife and 40% less the $38,147.00 to the husband.
(3)That in the event that the Property D property fails to be sold by private treaty within a period of 3 months hereof then each party and the New South Wales Trustee & Guardian on behalf the husband take all necessary steps and execute all necessary documents to cause the Property D property situated be sold at auction at the earliest possible date at a reserve to be agreed upon between the parties and failing such agreement to be determined by the President of the New South Wales Division of the Australian Property Institute or his nominee and that the proceeds of the said sale be disbursed as follows:
(a)Payment of agent’s commission and advertising expenses and legal expenses of the sale.
(b)Payment of the wife’s credit card balance of $5,000.00 and the wife’s Centrelink debt of $3,500.00.
(c)60% of the balance plus $38,147.00 to the wife and 40% less the $38,147.00 to the husband
(4)Except, as otherwise provided in these orders, the husband and the wife are each entitled to be the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively.
(5)The husband and wife do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.
(6)That each of the parties shall do all acts and sign all necessary documentation to give effect to the terms of this order and in the event that either party refuses or neglects to sign (within 14 days of a written request to do so) any document necessary to effect the terms of these orders, the Registrar of the Federal Circuit Court of Australia is hereby appointed pursuant to s.106A of the Family Law Act 1975 to execute such document on behalf of such party.
The respondent de facto husband (“the husband”), on the other hand, seeks orders as set out in the his Response filed 29 September 2014, but updated to the following:
(1)That within 28 days the respondent pay to the applicant a sum of $34,100.00. [but then increased to a figure calculated as between 20% and 30% of the parties’ net property pool].
(2)That, other than as otherwise set out in these orders, the parties have the sole right title and interest in any other property which is at the date hereof in their possession title or name and they shall be solely liable for the indemnify the other against any personal liabilities.
There are no current parenting proceedings in respect of the parties’ child, referred to below.
The wife relies, subject to all proper claims as to admissibility, and after formal objections were taken, on the following:
a)Her affidavit sworn on 27 February 2015 and filed on 2 March 2015; and
b)Her Statement of Financial Circumstances filed on 19 August 2013.
The husband relies, subject to all proper claims as to admissibility, and after formal objections were taken, on the following:
a)The affidavit of Mr J (“Mr J”) sworn on 9 April 2015 and filed on 13 April 2015; and
b)His Statement of Financial Circumstances filed on 27 September 2014.
The wife was represented of Ms Carty of Counsel and the husband was represented by Mr S Priestley of Counsel. The matter was heard over three days given that it was listed in the Coffs Harbour circuit week commencing 13 April 2015 against a number of other matters.
The parties agreed the pool of assets was in the sum of $334,838.11 less the two debts of the wife (as referred to in paragraph 48 below).
Further, the parties agreed that orders could be made in terms of the wife’s proposed orders to implement the sale of the Property D property with a distribution therefrom, either in terms of Ms Carty’s analysis or that of Mr Priestley. Accordingly, orders 6 and 7 above can be made by consent to implement that agreement.
The following documents were tendered as exhibits in the proceedings:
Exhibit No
Document
Tendered by
Court 1
Letter from Department of Immigration to the Court dated 15 April 2015
Court
Court 2
Document setting out the agreed facts
Court
A
Page 89 and 90 of documents produced by Department of Immigration
Wife
B
6 pages geriatric report on husband
Wife
C
Front page of contract of sale
Wife
D
Stamped Transfer
Wife
E
Loan Agreement of 24 May 2013
Wife
F
Page 76 of the documents produced by the Department of Immigration
Wife
1
Affidavit of applicant filed 19 August 2013
Husband
2
Page 54 of documents produced by the Department of Immigration
Husband
3
Will of the husband dated 19 October 2012
Husband
4
Transaction record with the Public Trustee from 1 June 2014 to 15 April 2015
Husband
Background facts
The following are the substantially agreed background facts:
a)The husband was born on (omitted) 1925 (although the wife asserted it was (omitted) 1925) and at the time of hearing was 90 years of age.
b)The wife was born on (omitted) 1963 and at the time of hearing was 51 years of age.
c)In (omitted) 2004, the parties met in the (country omitted).
d)There is one child of the relationship namely, namely X, born (omitted) 2006 and aged 9 years at the time of hearing (“the child”).
e)In 2008, the husband suffered a stroke while in the (country omitted).
f)On 28 April 2008, a decree for the annulment of the wife’s marriage was made in the (country omitted) Court, Family Court Branch, (omitted), (country omitted) (Exhibit “2”)
g)On (omitted) 2009, the wife and the child arrived in Australia and commenced to live with the husband.
h)In December 2009, the wife obtained a carer’s pension for her care for the husband.
i)On 8 September 2012, the parties separated with the wife and the child leaving the Property D property and the husband continuing to reside there.
j)On (omitted) 2013, the husband suffered a stroke and between (omitted) 2013 and (omitted) 2014 lived at times in a nursing home and at other times at the Property D property.
k)On 19 August 2013, the wife commenced these proceedings.
l)From (omitted) 2013 to (omitted) 2014, the wife worked as a (omitted) in the (employer omitted) in (omitted).
m)On 10 February 2014, a consent order was made appointing the New South Wales Trustee and Guardian as litigation guardian for the husband, pursuant to Rule 11(12) of the Federal Circuit Court Rules.
n)In (omitted) 2014, the husband commenced to live full time in the (nursing home omitted) at (omitted).
o)On (omitted) 2014, the wife suffered a subarachnoid haemorrhage (bleeding in and around the brain) and was admitted to hospital. The wife underwent brain surgery for an aneurysm on (omitted) 2014 and then underwent 2 further surgical interventions on (omitted) 2014.
p)On (omitted) 2014, the wife was discharged from hospital.
q)On (omitted) 2014, the wife suffered a urinary tract sepsis, was hospitalised. She was discharged from hospital on (omitted) 2014.
r)The wife currently lives in (omitted). She is not currently working, but is the full time carer for her new partner, Mr M (“Mr M”), with whom she had formed a relationship with in (omitted) 2013 and commenced cohabitation with in (omitted) 2014.
s)The parties agreed to the following further facts in terms of Exhibit “Court 2”:
i)The following amounts of money were either transferred from, or accessed from, the husband’s (omitted) Bank Account #(omitted) for use in the (country omitted):
1. $13,045.00 between (omitted) 2007 and (omitted) 2008.
2. $15,557.00 between (omitted) 2008 and (omitted) 2009.
ii)That based on the Costs of Children Tables 2014 from the Child Support Agency website and taking into account the parents’ combined child support income of $50,076.00 per annum, the cost of raising the child between now and her 18th birthday is calculated at $92,869.00.
Disputed facts
The following are the disputed facts:
a)The wife alleges that the parties’ de facto relationship commenced in (omitted) 2005. The husband maintained that it commenced in either (omitted) 2009 when the wife and child arrived in Australia or sometime shortly before that in 2008.
b)The respective contributions of the parties.
c)The future needs of the parties.
The Law
The Jurisdictional Facts
In order for the Court to have the jurisdiction to make property orders under the Family Law Act 1975 (“the Act”) in respect of de facto relationships, there are two jurisdictional facts that must be established and those facts must be established on the evidence before the Court. Those jurisdictional facts are contained in s.4AA and s.90SB of the Act.
First, the relationship must have broken down after 1 March 2009 (see Fenton & Marvel [2013] FamCAFC 132). This is not in dispute. Secondly, the relationship must have subsisted for at least 2 years. On either party’s case, their relationship subsisted for over 2 years.
Both parties assert and the Court accepts that, in all the circumstances, it is just and equitable to make orders altering the parties’ interests in property in terms of the High Court of Australia’s decision in Stanford v Stanford [2012] HCA 52.
Accordingly, to determine the dispute in relation to the length of the parties’ de facto relationship, the Court has to have regard to the following.
The classic definition of separation can be found in Pavey & Pavey (1976) FLC 90-051. Although this relates to marriage, the concept is applicable to de facto relationships. The Full Court of the Family Court of Australia said in that case:
“Separation means more than physical separation – it involves the breakdown of the marital relationship (consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the martial relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements some or all of which may be present in a particular marriage- elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships, and the nurture and support of the children of the marriage.”
Consortium Vitae means:
“Marital intercourse, the dwelling under the same roof, society and protection, support, recognition in public and in private, correspondence during separation, making up as a whole the consortium vitae which the old writers distinguish from the divortium a mensa et thoro, may be regarded separately as different elements, the presence or absence of which go to show more or less conclusively that the matrimonial relationship does or does not exist Per Cussen J in Tulk v Tulk; Hoffmeyer v Hoffmeyer (1907) VLR 64 at 65”
Section 4AA of the Act sets out the meaning of de facto relationship as follows:
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5) For the purposes of this Act:
(a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
When 2 persons are related by family
(6) For the purposes of subsection (1), 2 persons are related by family if:
(a) one is the child (including an adopted child) of the other; or
(b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c) they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.
Section 4AA requires that the Court consider a number of matters in order to determine if a de facto relationship existed. The definition of a de facto relationship hinges on the concept of “a relationship as a couple living together”. Determining whether two parties were in a relationship as a couple living together involves the consideration of a number of factors, but some general observations can be made:
a)The concept of “living together” is at the heart of a de facto relationship. It is important as it provides a distinction between parties living together as friends or flat mates.
b)While living together in a common residence and having a sexual relationship are common factors in a de facto relationship, neither are essential nor sufficient to establish that two parties are “living together” as a de facto couple.
c)A “mutual commitment to a shared life” is essential as without such commitment a de facto relationship cannot commence between the parties. In this regard, it is not sufficient that only one of the parties was committed to the relationship, but the other was not. A mutual commitment need not to be expressed, it may be inferred depending on the facts of the case. Further, the degree of the parties’ mutual commitment is one of many factors to be considered in the overall evaluation of the parties’ relationship.
d)A “mutual commitment”, while essential, is not sufficient of itself. It is entirely foreseeable that there may be circumstances where two parties have a mutual commitment to a shared life, but they are not “living together as a couple”.
e)The financial relationship between the parties and their financial dependence and interdependence, ownership, use and acquisitions of property are not essential. However, these matters are often evidence of a mutual commitment to a shared life.
f)The care and support of children of either or both of the parties will also often be a relevant consideration.
g)The reputation and public aspects of the relationship are often important considerations when determining whether the parties were in a de facto relationship. If the parties’ friends and/or family consider the parties to be a couple, this may be considered external confirmation of the existence of a de facto relationship.
h)A de facto relationship does not end until the parties finally cease living together as a couple. Parties may spend some time apart or take some breaks from the relationship. However, the periods of time in which parties live in a de facto relationship can be aggregated to determine the overall length of that relationship, including periods which occurred before 1 March 2009 (See Dahl & Hamblin [2011] FamCAFC 202).
In determining whether a de facto relationship exists between the parties the Court must consider the matters in s.4AA as relevant and weigh them up, while considering the specific facts of each individual case. As Nicola Peart (Professor of Law, University of Otago New Zealand) stated in her paper “What’s New in Relationship Property and Succession”:
Finding whether a de facto relationship exists can be a complex exercise, involving evidence pointing in different directions. The consequences of finding a de facto relationship can be far-reaching and unexpected for some parties. The retrospective assessment has all the disadvantages of the “benefit of hindsight”. Had the parties known, they might have ordered their affairs differently. There is the well-known risk of litigants viewing their past conduct through a self-serving lens.
In this regard, the Court has considered each of the matters detailed in s.4AA(2) of the Act.
(a) the duration of the relationship
The husband travelled to the (country omitted) for a period of 2 months in (omitted) 2004 and on that occasion met the applicant. Thereafter, he travelled to the (country omitted) on the following occasions:
a)In (omitted) 2004 for 2 months.
b)In (omitted) 2004 for about 1 month.
c)In (omitted) 2004 until (omitted) 2005.
d)In (omitted) 2005 for about 3 weeks.
e)In (omitted) 2005, where the wife says that the parties commenced their cohabitation and rented a home together. The husband says that he stayed there until (omitted) 2005.
f)In (omitted) 2005 until (omitted) 2005.
g)In (omitted) 2005 when he attended the birth of the child, staying until (omitted) 2006.
h)In (omitted) 2006 until (omitted) 2006.
i)In (omitted) 2006 until (omitted) 2006. At that time, the husband had expended some $25,000.00 to $28,000.00 in travel expenses borrowing such funds from Mr J to meet those expenses.
j)In (omitted) 2006 until (omitted) 2007.
k)In (omitted) 2007 until (omitted) 2007.
l)In (omitted) 2007 until (omitted) 2007.
m)In (omitted) 2007 until (omitted) 2008 when he travelled with his son to meet the wife.
n)In (omitted) 2008 until (omitted) 2008.
The above travel regime is as specified in a letter from the husband to the Principal Migration Officer, Immigration Section, Australian Embassy, (country omitted), dated 2 May 2008. Mr Priestley initially objected to the tender of a copy of that letter, given that the copy attached as Annexure “A” to the wife’s trial affidavit was not signed by the husband. A subpoena had been issued to the Department of Immigration for the production of migration documents relevant to the parties and that subpoena had, unfortunately, not been complied with as of the second day of the hearing and after the date of production. During the course of the hearing, the Department was contacted and they offered an apology and said that the documents would be produced immediately. The original of Annexure “A” signed by the husband was produced and Mr Priestley, appropriately, withdrew his objection. That document has become Exhibit “A”.
Mr Priestley cross-examined the wife over the production of Exhibit “A”. This document appears to have been prepared by the migration agent acting for the wife in the (country omitted) and was signed by the husband in the (country omitted). Mr Priestley alluded to difficulties that the husband may have had in reading and understanding the terms of that document. The wife frankly conceded that the husband could write and read, but as she said, “not well”. Notwithstanding that, the husband had signed a contract for sale in April 2013 (Exhibit “C”), a loan agreement with Mr J and Ms M in May 2013 (Exhibit “E”), a transfer document arising from the said contract for sale document (Exhibit “D”) and his will dated 19 October 2012 (Exhibit “3”), none of which provided for any special attestation clause indicative of a position that the husband could not, otherwise, read or understand the written word. The Court accepts that when the husband signing the original of Exhibit “A”, he understood its terms and was representing to the Australian Government a series of facts upon which he sought the Government to rely in granting the wife a visa. In particular, Exhibit “A” states that the parties “sometime [in] (omitted) 2005 [had] decided that [they] should live together as man and wife” and in those terms “rented [a] house in (omitted), (country omitted)”. The husband explained his absence from the wife in the following terms:
“I have commitments in Australia and [we were] waiting for the annulment of [the] de facto wife’s [marriage]. The climate suits my health more in Australia. It is too hot for me in the (country omitted) at my age. I have to provide security for my house in Property D as I am afraid it will get damaged or broken into if I am not there. I have an extensive garden with over 1,500 plants that must be cared for, as I am a very keen gardener as is my wife.”
The husband refers to the wife throughout his letter in May 2008 as his “de facto wife”.
The husband refers to maintaining contact with the wife by letters and telephone while he was in Australia and he was in the (country omitted). He refers to meeting the wife’s family and children and to introducing his son to his de facto wife, sometime between (omitted) 2007 and (omitted) 2008. No evidence was called by the husband from his son to dispute that assertion. Weight is attached to that to the effect that at least by (omitted) 2007, the husband was holding out to his family that the wife was his de facto wife. This is some two years prior to the date promoted by Mr Priestley as the commencement date for the parties’ de facto relationship.
(b) the nature and extent of their common residence
The Court accepts the wife’s evidence that the husband was the tenant of a number of properties in the (country omitted) where she lived with her children of an earlier marriage and where the husband resided when he was in the (country omitted). The husband spent substantial periods of time in the (country omitted) with the wife, as referred to in paragraph 23 above.
(c) whether a sexual relationship exists
The parties conceived the child of their relationship in about (omitted) 2005. This is the date that the wife says that their de facto relationship commenced. The Court accepts that position and weight is attached to that.
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them
The Court accepts that given the parties’ asset positions, there was no intermingling of their finances before the wife’s arrival in Australia. The husband had real property at Property D and his pension. He had to borrow monies to travel to the (country omitted). The wife, however, ceased work in the (country omitted) following the birth of the child and was financially supported by the husband from about (omitted) 2005 onwards.
The Court accepts that from about (omitted) 2005, the husband was regularly forwarding money sums of between $300.00 and $500.00 per month to the wife for her support and, after the birth of the child, to maintain rented premises in the (country omitted) to accommodate both her and the child. It was an agreed fact that between (omitted) 2007 and (omitted) 2009, the husband had transferred some $28,602.00 for the wife’s and his use in the (country omitted). Weight is attached to that level of financial support given that, at that time, the husband was on a pension.
The Court accepts the wife’s evidence that she was not being paid money for the supply of companionship to the husband, as was submitted by Mr Priestley. The wife responded: “We loved being together, doing things together” and that Mr Priestley’s suggestion was “not proper”.
While the wife was living in the (country omitted), the husband rented 3 houses there at different points in time. The wife’s evidence was that the first house was rented for about 6 months for a rental of $300.00 per month and the rent was paid by the husband to the wife and that she then paid those monies to the landlord. The second house, was rented for about one year at about the same rental of $300.00 per month and this rent was paid by the husband in a similar way to that of the first house. The third house was rented in about 2007 until the wife moved to Australia in 2009 and the rent for that property was slightly lower at $250.00 per month. Similarly, the husband paid this rent. The wife’s evidence as to the rents paid and their payment had a clear ring of truth to it. She did not embellish the husband’s payments nor her contributions. The wife also confirmed that the husband had been instrumental in arranging for a bank card so that he could forward monies to her in the (country omitted) more easily.
(e) the ownership, use and acquisition of their property
The husband had the Property D property prior to the parties’ relationship and that remained in his ownership. The parties resided at that property when the wife and the child arrived in Australia from the (country omitted). That property was used as the parties’ matrimonial home.
(f) the degree of mutual commitment to a shared life
The Court accepts the wife’s evidence that the parties had a mutual commitment to a shared life from about (omitted) 2005 when she gave up her employment and relied upon the support of the husband. The wife became the full time carer of the child until both she and the child arrived in Australia in about (omitted) 2009. The wife’s evidence was that she felt committed to the husband from about 2004 onwards. She conceded, however, that she was not living in a de facto relationship with the husband in 2004 and said that it was a mistake if she had said that that was the case. The Court accepts her evidence in that regard. It was also put to her that paragraph 12 of Mr J’s affidavit indicated that the husband was not so committed to her in that he had visited “other girly bars with another Australian he had met over there”. That asserted lack of commitment is by no means clear, as it appeared that the husband did not want the wife to know as he informed Mr J “Please don’t tell [the wife], mate”. Mr J says that the husband was “Quite proud of himself when he could venture out without [the wife] knowing”. To the contrary, that evidence shows a degree of commitment by the husband to the wife and weight is attached to that.
The Court accepts the wife’s evidence that when she was in the (country omitted) and the husband was in Australia they would regularly communicate by telephone.
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship
This is not applicable on the facts of this case.
(h) the care and support of children
The Court accepts the wife’s evidence, given the age difference between the parties, that she was the primary carer of the child. Nevertheless, the husband attended on the birth of the chid in the (country omitted) and, no doubt, would have spent time with the child in the (country omitted) when he was staying there with the wife.
(i) the reputation and public aspects of the relationship
Mr Priestley was critical that the wife had not called evidence from family and friends in the (country omitted) to support her assertions and that a Jones v Dunkel (1959) 101 CLR 298 inference would arise. Ms Carty’s response was that the parties did not have a large property pool and that such an approach would have been both time consuming and expensive. The Court accepts that position, particularly in light of the husband’s representation to the Department of Immigration as to the existence of the de facto relationship in terms of that asserted by the wife. The issue concerning the wife obtaining an annulment of her marriage appears to have been raised by the husband before the wife moved to Australia. The Court does not accept that obtaining the annulment was a condition precedent to the commencement of any de facto relationship with the husband. The husband, clearly, did not make that representation to the Australian Government in terms of Exhibit “A”.
Credit issues
The Court accepts Mr Priestley’s submission that care must be exercised in assessing the evidence of the wife in this case given that the husband does not have the capacity to provide an affidavit in response (see Clune v Collins Angus and Robertson Publishers Pty Ltd (1992) 25 IPR 246 (Federal Court of Australia)). Again, the Court looks to material corroborative of the wife’s evidence and notes, in particular, the husband’s letter to the Department of Immigration as Exhibit “A” falls into that category.
Mr Priestley was critical of the wife’s credit in a number of respects. Those were:
a)That the wife had sworn her trial affidavit with three blanks in it at paragraphs 25, 30 and 67. Paragraph 25 required the insertion of a date as to when she obtained her carer’s pension. Paragraph 30 required the insertion of a date as to when the husband was admitted into the nursing home in (omitted) and paragraph 67 required the insertion of a date as to when the wife commenced cohabitation with Mr M. The wife’s oral evidence was that those dates were (omitted) 2009 (paragraph 25), (omitted) 2014 (paragraph 30). Initially, the wife gave the date in paragraph 67 as (omitted) 2013, but she subsequently changed that to (omitted) 2014.
The Court accepts the wife’s evidence that she had relied on her lawyers to complete the trial affidavit and that she did not understand the need to have that information inserted at the time of swearing, although she clearly understood the importance of the document being accurate. The wife acknowledged reading it carefully before signing it, but said that she never thought about filling in the blanks and had provided her solicitor with all the information. It is not uncommon for an affidavit to be drafted by legal representatives where a particular piece of information needs to be supplied by the client and to be subsequently inserted either by hand or typed in.
b)The wife’s change of her evidence about the date of her cohabitation with Mr M referred to in (a) above flowed from her evidence that she had formed a relationship with him in (omitted) 2013 but had not commenced cohabitation until (omitted) 2014. The wife was cross examined as to her understanding of what cohabitation meant and she responded: “living together and sharing everything”. Mr Priestley submitted that the wife had changed her story from an (omitted) 2013 date to (omitted) 2014 as she had realised that she had been claiming the single parents’ pension in (omitted) 2013 and that that would not sit comfortably with a cohabitation date of (omitted) 2013. The wife’s affidavit, however, states that she had formed a relationship with Mr M in (omitted) 2013 and commenced cohabitation on a date which was left blank, but would, obviously have been after (omitted) 2013, as contemplated by the words of that paragraph.
c)The wife’s evidence in paragraphs 9 and 10 of her affidavit sworn 9 August 2013 was inconsistent with her evidence of “knowing” about the transaction concerning the sale of the property at Property D to Mr J and Ms M, as deposed to in paragraph 58 of her trial affidavit. The wife said that her statement was not incorrect or inconsistent in that she knew of the sale, the sale price of $250,000.00 and that Mr J & Ms M had to pay “all the costs”. Mr J, however, disputed any responsibility to pay the costs of the subdivision in his affidavit. Indeed, there is some evidence that the agreement that had existed between the husband and Mr J & Ms M had changed in about (omitted) 2012. Notwithstanding this, the Court accepts that the transfer occurred in about (omitted) 2013 which was some 8 months after the parties’ separation in September 2012. What the wife said she deposed to was a lack of knowledge about “what the agreement was in relation to this transfer”. Paragraph 10 of her affidavit of 9 August 2013 asserts that she was concerned that the “transfer” had occurred at about the time the husband was in hospital for 10 days and her oral evidence was that she did not know what monies had been paid to him at or about that time or whether any monies were still outstanding. The Court accepts her evidence in that regard.
d)The wife’s evidence concerning her medical condition, which Mr Priestley maintained was exaggerated. The wife attached a letter from her treating general practitioner, Dr T, which referred to the wife’s “subarachnoid haemorrhage” and listed some “oft quoted complications found in patients”. In her affidavit, the wife substantially repeated those matters in paragraph 36 of her trial affidavit, being some 18 medical conditions. Seven of those conditions were, however, not read. It was clear that Dr T was of the view that in December 2014, the wife had some 8 medical issues being memory loss and disturbance, headaches, pulsations in the head, pain that lasted 10 seconds or so, tiredness, sleep disturbance, short temper and irritability. One of the 18 conditions which the doctor referred to as an “oft quoted” complication was “hypopituitarism”. The wife in paragraph 36 stated that she suffered from it, although this condition was not read. The wife did not understand what that particular condition was. Whilst there may be some criticism of the wife, the Court accepts that she did have some difficulties in communicating in the English language and, in particular, in relation to more formal, legalistic and medical concepts. The Court accepts that she relied on her lawyer and, in this regard, the quotation taken from the Doctor’s report was inaccurately applied to the wife’s position.
e)The wife’s evidence of the husband revoking his Power of Attorney in 2009 was initially criticised by Mr Priestley but this criticism was subsequently withdrawn, as it would appear that Mr Priestley had obtained instructions which confirmed the wife’s version of events. The wife said that she was unaware of the husband ever granting an Enduring Guardianship to anybody.
Considering all the above matters, the Court finds:
a)That the wife was a witness of truth;
b)That the parties’ de facto relationship existed from about (omitted) 2005 to the agreed date of separation on 8 September 2012. The Court declares that pursuant to s.90RD of the Act a de facto relationship, as defined in s.4AA of the Act, existed between the de facto wife and the de facto husband from (omitted) 2005 to September 2012, for a period of 7 years and 5 months; and
c)That both the husband and the wife were ordinarily resident in New South Wales when these proceedings were commenced and when their de facto relationship broke down.
The approach to be taken
The preferred approach to the determination of an application under s.90SM of the Act follows the procedure as set out by the Full Court of the Family Court of Australia in the case of Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143, which sets out the following four interrelated steps:
1. Identify and value, as at the date of hearing, the parties’ property, liabilities and financial resources;
2. Identify and assess the contributions (“the first limb – the contribution factors”) of the parties and express them as a percentage of the net value of the property (examined on either a global approach or an asset by asset approach, depending on the circumstances of the case);
3. Identify and assess the other factors relevant (“the second limb – ongoing needs and effect of orders”) including, the matters referred to in s.90SF and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
4. Consider the effect of the above and resolve what order is just and equitable in all the circumstances of the case.
In undertaking the first step outlined above, the Court must act with reasonable precision in both identifying and valuing the property pool. However, in the subsequent steps, the Court is not required to assess contributions with mathematical precision (see Nygh J. in G & G (1984) FLC 91-582).
Section 90SM of the Act [Matters to be taken into account]
In considering what order (if any) should be made under this section in property settlement proceedings, the court shall 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 to the acquisition, conservation or improvement of any of the property of the parties to the de-facto relationship or either of them, or 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 to the acquisition, conservation or improvement of any of the property of the parties to the de-facto relationship or either of them, or 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.
Section 90SF(3) of the Act [Matters]
The matters to be so taken into account are:
a)the age and state of health of each of the parties to the de-facto relationship;
b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
c)whether either party has the care or control of a child of the de-facto relationship who has not attained the age of 18 years;
d)commitments of each of the parties that are necessary to enable the party to support:
i)himself or herself; and
ii)a child or another person that the party has a duty to maintain;
e)the responsibilities of either party to support any other person;
f)subject to subsection (4) the eligibility of either party for a pension, allowance or benefit under:
i)any law of the Commonwealth, of a State or Territory or of another country; or
ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia, and the rate of any such pension, allowance or benefit being paid to either party;
g)a standard of living that in all the circumstances is reasonable;
h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
k)the duration of the de-facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
l)the need to protect a party who wishes to continue that party's role as a parent;
m)if either party is cohabiting with another person, the financial circumstances relating to the cohabitation;
n)the terms of any order made or proposed to be made under section 90SM in relation to:
i)the property of the parties; or
ii)vested bankruptcy property in relation to a bankrupt party;
o) the terms of any order or declaration made, or proposed to be made, under this Part in relation to:
i)a party to the subject de-facto relationship (in relation to another de facto relationship); or
ii)a person who is a party to another de facto relationship with a party to the subject de-facto relationship; or
iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
p)the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:
(i) a party to the subject de facto relationship; or
(ii)a person who is a party to a marriage with a party to the subject de facto relationship; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
q)any child support under the Child Support (Assessment) Act 1989 that a party to the subject de-facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de-facto relationship; and
r)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
s)the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de-facto relationship; and
t) the terms of any financial agreement that is binding on a party to the subject de-facto relationship.
Superannuation
The parties have no superannuation.
Separate Pool
Given the size of the property pool, the Court is of the view that a one pool approach should be adopted.
What were the parties’ property, liabilities and financial resources at the time of hearing?
The following schedule contains the items which the parties have each identified as their property, liabilities, and financial resources:
| PROPERTY | H/J/W | VALUE $ |
| Non-superannuation | ||
| The Property D property | H | 275,000.00 |
| Official Trust Account | H | 58,838.11 |
| Motor vehicle | H | 1,000.00 |
| TOTAL | 334,838.11 | |
| LIABILITIES | ||
| Credit Card | W | 5,000.00 |
| Centrelink debt | W | 3,500.00 |
| TOTAL LIABILITIES | 8,500.00 | |
| TOTAL NET PROPERTY | 326,338.11 | |
| FINANCIAL RESOURCES | Nil | |
The parties agreed that the sum of $58,838.11 was the sum to be included in the balance sheet from the Official Trust Account for the husband. However, that account actually stands at $37,277.26 as at 9 April 2015. Any adjustments would need to reflect the reality of that position.
The wife initially sought to add back the sum of $63,579.17 claimed as “land adjustment costs and payments not verified”, however, Ms Carty sensibly abandoned that application.
The parties agreed not to include any personal property or household chattels and essentially provided that those items would otherwise stay in the possession of the party entitled to them and accordingly, order 5 above can be made by consent.
What were the parties’ financial (direct and indirect) and non-financial (direct and indirect) contributions?
The Court must then consider all the contributions (direct and indirect), both financial and non-financial to the acquisition, conservation and improvement of the parties’ property and financial resources as well as to the welfare of the family before and after separation. The Full Court of the Family Court of Australia said in Aleksovski & Aleksovski (1996) FLC 92-705 (at 83,437):
“It is therefore necessary…[to] weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such assessment into a percentage of the overall property of the parties.”
The Court must consider the contributions in an overall sense both before and after separation (see Sippel & Sippel [2004] FamCA 201).
One matter the Court must consider is whether to adopt a global or asset-by-asset approach to contributions. In the case of Norbis & Norbis (1986) 161 CLR 513, the High Court of Australia held that either approach is open to the Court in part or in whole. The discretion as to which approach is to be adopted should be exercised having regard to the facts of the particular case. The Court adopts a global approach in these proceedings.
Direct and Indirect Financial Contributions
The husband submits that he made all of the financial contributions to the assets of the parties. The husband submits that the wife made no contribution to the maintenance or preservation of any asset the subject of the parties’ property pool.
The husband owned real property at Property D (which subsequently gave rise to the Property D property as a result of a subdivision and cash monies), a motor vehicle and savings of approximately $20,000.00 at the time the parties commenced their cohabitation, as conceded by the wife. The wife had no assets of any substance in the (country omitted). The wife was earning approximately $10.00 per week in a (employer omitted) and conceded, frankly, that she had “nothing”.
The Court finds that the wife made no direct financial contribution to the acquisition of the assets which currently make up the property pool.
Whilst the Court cannot make a precise finding as to the value of the husband’s initial contribution of the property at Property D, the Court finds that it was significantly in excess of any indirect financial contributions made by the wife, which could only have come from her earnings as a carer for the husband.
The weight to be afforded to initial contributions is comprehensively discussed in Pierce & Pierce (1999) FLC 92-844 and in particular at [28], where the Full Court of the Family Court of Australia said:
“In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase of the matrimonial home.”
The husband’s initial contribution of the Property D property represents a substantial part of the parties’ net property pool, at approximately 84%. The husband’s sale of the other property at Property D appears to have generated monies which now stand to the credit in the Official Trust Account, also referred to in the parties’ balance sheet.
Whilst the husband did not work during the parties’ relationship, he received an aged pension and that pension funded the parties’ living expenses.
The wife did not work during the parties’ relationship, save in her role as the husband’s carer and the Court accepts that some of her earnings from her carer’s pension, more than likely, were contributed to the family’s expenses. Nevertheless, the Court also accepts that the wife sent substantial monies back to the (country omitted) to support her children of a previous relationship. The wife appears to have transferred in the order of AU$8,300.00 to the (country omitted) in the period (omitted) 2013 to (omitted) 2014. Although this was post separation, the wife agreed that this was not an unusual year in terms of monies transferred overseas.
Direct and Indirect Non-financial Contributions
The husband concedes that the wife made the majority of the non-financial contributions during the parties’ relationship and weight is attached to that.
The Court accepts the wife’s evidence about her cooking and cleaning and carrying out most of the domestic chores, including shopping, taking the husband to medical appointments, arranging transport, caring for the husband’s personal and medical needs, some gardening and, in particular, her role in caring for the child. This evidence was not the subject of challenge. The Court accepts that the wife received some financial compensation for some of these duties given her role as the husband’s carer and her receipt of a pension. These carer payments more than likely formed the basis of the monies transferred by her to the (country omitted). There is no evidence that the husband did not, however, agree to the wife sending such monies for the support of her family.
Ms Carty, appropriately, conceded that there was no evidence to support a Kennon v. Kennon (1997) FLC 92-757 type argument in respect of any of the husband’s asserted conduct.
In the post separation period, the husband has rented out the Property D property which has generated an income. The wife has had to obtain her own accommodation.
What were the parties’ contributions to the welfare of the family including those in the capacity of homemaker or parent?
It is common ground that the wife has been the primary carer for the parties’ child since her birth and she continues in that role. The Court also accepts that during the period of the parties’ cohabitation, but particularly after the wife arrived in Australia in 2009 to live with the husband, that she made a significant contribution to the welfare of the family and as homemaker. The Court accepts that the wife also made a contribution in her role as homemaker and parent at the various rented premises in the (country omitted) when the husband resided with her and when she had the sole care of the child when the husband was not in the (country omitted).
The wife also looked after her 2 children from a previous relationship from the date the parties were living as husband and wife, with the 2 children residing with her in the various rented homes as arranged by the husband. The wife had a further 3 children from her marriage who resided elsewhere. At the date of hearing, all 5 of her children from previous relationships lived together in the (country omitted) in rented accommodation. The two youngest children are currently aged 17 years and 19 years and attend College. During the parties’ relationship, the wife sent monies to the (country omitted) by way of cash and international transfer through Western Union and later by way of internet bank transfer for the support of her children.
Ms Carty submitted that the wife’s support of the husband was an added burden to her, given her primary support of the child, due to the husband’s health. This is true, to an extent, but the wife was also receiving some financial compensation for that contribution, given her receipt of the carer’s pension.
Comparatively, the wife’s contribution to the welfare of the family exceeded the contribution made by the husband. This contribution must be given weight.
The husband submits that his contribution entitlement should be assessed at 85-90% to the wife’s 10-15%.
The wife submits that her contribution entitlement should be assessed at 30% to the husband’s 70%.
Weighing all of the factors relating to contributions, both financial and non-financial, the Court assesses the wife’s contribution entitlement at 20% and the husband’s at 80%, being $65,267.63 and $261,070.48 respectively.
What is the effect, if any, of any proposed order upon the parties’ earning capacity?
The proposed orders do not impact on the earning capacity of either the husband or the wife.
Any adjustment under s.90SF of the Act?
The husband and the wife submit that adjustment should be made referable to the following factors in the percentages submitted.
a) the age and state of health of each of the parties to the de-facto relationship;
The husband is 90 years of age and suffered a stroke when he was 83 years of age. He currently suffers from dementia and other physical ailments and is wheelchair bound.
At the age of 88 years, the husband was evidencing a state of some confusion with altered sleep patterns. In (omitted) 2013, he was receiving treatment from a psycho-geriatrician. He is now in full time care at a nursing home.
There is no evidence as to the husband’s life expectancy.
The wife is 51 years of age and, as such, there is an age differential of some 39 years with that of the husband.
There was no specialist evidence as to the wife’s recovery from her operations in 2014. Her general practitioner stated that whilst she had had a “catastrophic event” with her subarachnoid haemorrhage she now had adequate attention and concentration and scored well on cognitive function tests “but would not be able to work for a while yet”, and that she required a further psychological assessment in June 2015. Mr Priestley cross-examined the wife about when she could recommence work and whether she could obtain a more remunerative type of work if she was to obtain her (qualifications omitted) degree (“(omitted)”). The Court, nevertheless, accepts that she is working in the role of Mr M’s carer and is receiving a carer’s pension for that. She has only worked in Australia as a (omitted) for the limited period of some 5-6 months from (omitted) 2013 to (omitted) 2014.
b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
The husband is not working and is in a nursing home. He receives a pension. There is a short fall in his pension receipt ($841.00 per fortnight) and nursing home expenditures (in the order of $974.00 per fortnight) together with monthly management expenses and other incidentals. This shortfall is ongoing and appears in the order of $75.00 per week or $3,900.00 per annum.
The wife does not work, but performs the role of a carer for her current partner and is in receipt of a carers’ pension in the amount of $400.00-500.00 per week.
In December 2014, the wife’s general practitioner said that she was still not able to work for a while. There is no specialist evidence before the Court with respect to that matter, but the Court notes that she is able to perform in the capacity of her partner’s carer.
The wife agreed with Mr Priestley that she had completed year 1 of a (qualifications omitted) degree of a 4 year course in the (country omitted) in about 1981/2. She further agreed that if she completed that course, she may be able to secure a good income and that she could do that by distance education. The wife, nevertheless, confirmed that she had not done any formal study since 1981/2, some 33 years prior to the hearing and prior to her marriage, having had children, forming a relationship with the husband and having had a child with him. The Court is of the view that her employment prospects outside the area of her working experience in Australia would be somewhat limited given her grasp of English (it not being her first language), her age and work experience.
c) whether either party has the care or control of a child of the de-facto relationship who has not attained the age of 18 years;
The Court accepts that the wife will have the primary care of the parties’ 9 year old child for the next 9 years and the parties have agreed that the costs of raising that child would be in the order of $92,869.00 over that period.
The parties have agreed that their combined income was $50,076.00 per annum for child support purposes.
The Court does not accept that the wife’s assertion that given that she is able to meet all of the child’s current expenses currently (save for the extracurricular activities of (omitted)) means that she is able to meet the child’s ongoing expenses into the future. Mr Priestley, quite appropriately, acknowledged that position. Further, that does not mean that the husband is not, himself, obligated to contribute to the maintenance of the child and in that regard, given his pension income the Court notes that he is contributing $7.00 per week and that such a sum would necessarily mean that the wife will have the substantial ongoing responsibility to maintain the child. Significant weight is attached to that in favour of an adjustment for the wife. An adjustment of 50% of the figure $92,869.00 referred to in Exhibit “2” (see paragraph 11(s) above), equates to $46,434.50.
d) commitments of each of the parties that are necessary to enable the party to support:
i) himself or herself; and
ii) a child or another person that the party has a duty to maintain;
Mr Priestley submitted that while there may be an adjustment called for because the wife has the ongoing need to support the child, he says that the child will have her rights pursuant to the Succession Act 2006 (NSW) and that it is unlikely that the child will be a financial burden on the mother for an extended period of time. This is somewhat inconsistent with Mr Priestley’s submission as to there being no evidence as to the life expectancy of the husband before the Court. Further, Exhibit “3” records that the child is but one of the beneficiaries named in the husband’s will, together with the husband’s son, Mr C and, further, it would appear that the husband had another child, Ms J, now an adult, not named in the said will. Given the husband’s current circumstances, it is unlikely that he would have the necessary capacity to alter that will. Notwithstanding that, there is no evidence as to when the child would take any inheritance and as to the value of that inheritance, in any event.
The wife continues to support 2 of her children in the (country omitted), one being aged 17 years and 19 years respectively, who are both at College. She pays $240.00 per fortnight by way of transfer to the (country omitted) which, she says, is dependent on their needs, being for rent and schooling expenses.
The wife has paid approximately $6,500.00 in the period (omitted) 2013 to (omitted) 2014 in respect of the expenses referred to in paragraph 89 above. She has also paid about $1,800.00 to her niece to reimburse expenses paid on her behalf in the (country omitted). That totals some $8,300.00. Mr Priestley submitted that the wife was under no legal obligation to make those payments and, as such, had not demonstrated an ongoing need that could not be met out of her own resources.
The wife, notwithstanding paragraph 89 above, concedes that her children are “self-supporting”. Weight is attached to that concession.
e) the responsibilities of either party to support any other person;
No relevant matter was put to the Court concerning this factor.
f) subject to subsection (4) the eligibility of either party for a pension, allowance or benefit under:
i) any law of the Commonwealth, of a State or Territory or of another country; or
ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia, and the rate of any such pension, allowance or benefit being paid to either party
The husband is in receipt of an aged pension.
The wife is in receipt of a carer’s pension.
g) a standard of living that in all the circumstances is reasonable;
No relevant matter was put to the Court concerning this factor.
h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
No relevant matter was put to the Court concerning this factor.
ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
No relevant matter was put to the Court concerning this factor.
j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
No relevant matter was put to the Court concerning this factor.
k) the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
The husband’s submissions as to an adjustment were based on a much shorter period of de facto relationship than that alleged by the wife and as now found by the Court. During that period of time, the wife did not seek employment or seek to improve her earning capacity given that she was, substantially, caring for the child and the husband. Weight is attached to that.
l) the need to protect a party who wishes to continue that party's role as a parent;
The wife will continue to be the party with the primary role in caring for the child.
m) if either party is cohabiting with another person, the financial circumstances relating to the cohabitation;
The wife is cohabitating with her partner, Mr M, for whom she is his carer. The wife’s partner is in receipt of a pension of $292.00 per week. Mr M also received approximately $65,000 to $70,000.00 in 2014, as a result of a family law property settlement.
The wife said that Mr M had no other assets apart from a car. The Court notes that Mr M has not filed any affidavit in support of the wife’s case.
The wife says that she currently pays $350.00 for the first week and her partner pays $350.00 for the second week in respect of their rented accommodation at $700.00 per fortnight. The wife says she pays that amount into her partner’s account and the rent is then paid from his account. The wife also said that, from time to time, she pays additional money being in the order of approximately $50.00 in a week, to cover petrol and other outgoings.
n) the terms of any order made or proposed to be made under section 90SM in relation to:
i) the property of the parties; or
ii) vested bankruptcy property in relation to a bankrupt party
No relevant matter was put to the Court concerning this factor.
o) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
i) a party to the marriage; or
ii) a person who is a party to a de facto relationship with a party to the marriage; or
iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and No relevant matter was put to the Court concerning this factor.
No relevant matter was put to the Court concerning this factor.
p)the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:
(i) a party to the subject de facto relationship; or
a person who is a party to a marriage with a party to the subject de facto relationship; or
the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); an
No relevant matter was put to the Court concerning this factor.
q) any child support under the Child Support (Assessment) Act 1989 that a party to the subject de-facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de-facto relationship; and
The parties agreed that the husband was only paying $7.00 per week in child support.
The Full Court of the Family Court of Australia stated in In the Marriage of Clauson (1995) FLC 92-595:
“…in addition, it should not be forgotten that the payment of child support in no way compensates the custodial parent for the loss of career opportunity, lack of employment mobility and the restriction upon an independent lifestyle which the obligation to care for children usually entails…”
The parties agree that the costs of raising the child would be in the order of $92,869.00 until her 18th birthday. However, as Mr Priestley submits, that is a lump sum spread over 9 years and the wife would then receive the benefit of a lump sum at the time of orders which could be invested.
r) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
No relevant matter was put to the Court concerning this factor.
s) the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de-facto relationship; and
No relevant matter was put to the Court concerning this factor.
t) the terms of any financial agreement that is binding on a party to the subject de-facto relationship.
No relevant matter was put to the Court concerning this factor.
The husband submits that an adjustment of a further 10-15% should be made in the wife’s favour, so that the final adjustment to the matrimonial pot should be assessed at 20-30% to wife and 70-80% to the husband.
The wife submits that an adjustment of a further 30% should be made in her favour, so that the final adjustment to the matrimonial pot should be assessed at 60% to her and 40% to the husband.
Considering then all of the above s.90SF(3) factors, the Court is of the view that there should be an adjustment of 22.5% made in favour of the wife which equates to approximately $73,426.07. This, the Court regards, as a proper adjustment given, particularly, the parties’ ages, current child support responsibilities, health and current earning positions. This outcome reflects the cumulative outcome of the findings made pursuant to s.90SF(3) referred to above (see Tomasetti & Tomasetti (2000) FLC 93-023). Any lesser adjustment, given the size of the asset pool, would be notional.
Accordingly, the wife would be entitled to 42.5% of the net property pool and the husband to 57.5% being $138,693.70 to the wife and $187,644.41 to the husband.
Are the proposed orders just and equitable?
Section 90SM(3) of the Act provides that:
“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.”
It is the justice and equity of the actual orders that the Court must consider (see Russell & Russell (1999) FLC 92-877).
As the Full Court of the Family Court of Australia said in Dickson & Dickson (1999) FLC 92-843:
“Whilst it may, as a matter of individual circumstance, be correct to say that the mere existence of disparity of wealth ought not of itself justify a settlement of property to one party at the expense of the other, it may often, in the overall circumstances of a case, call for further adjustment beyond that assessed on contributions alone, so that the final order is just and equitable…”
Section 90ST of the Act requires the Court, as far as practicable, to finalise the financial relationship between parties when making orders for property settlement.
Section 90SM(5) of the Act needs to be exercised very sparingly and only in appropriate circumstances. This is not one of those circumstances.
The wife seeks immediate access to some cash. The Court proposes that out of the Official Trust Account referred to in paragraph 48 above, the sum of $18,500.00 be paid to the wife. That will leave the sum of $18,777.26 to cover the husband’s living expenses. The sum of $18,500.00 will enable the wife to pay her credit card balance of $5,000.00 and her Centrelink debt of $3,500.00 leaving her $10,000.00 in cash.
If the wife receives $18,500.00, she would then be entitled to receive a further $120,193.70 out of the settlement proceeds from the sale of the Property D property. That would equate to 43.7% of the sale proceeds. That figure will be inserted in the relevant orders. The Court notes that the costs of sale will need to be accommodated for prior to any payment to the parties.
The Court is satisfied that, in all the circumstances of this case, the proposed orders are just and equitable.
Costs
Section 117 of the Act sets out that each party shall bear his or her own costs subject to the considerations in sub-section two.
Any order for costs must also be determined in light of the substantive judgment and the relative success or failure of the parties. This is naturally something that can only be addressed after judgment is delivered.
The Court proposes to make the orders and directions in relation to any application for costs that might be made as set forth above.
I certify that the preceding one hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Associate:
Date: 24 April 2015
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