Farina and Naima (No 2)

[2017] FamCA 540

FAMILY COURT OF AUSTRALIA

FARINA & NAIMA (NO 2) [2017] FamCA 540

FAMILY LAW – PROPERTY – Where the parties lived essentially independent financial lives – Where the parties lived together for relatively short periods of time – Where it is not just and equitable to make orders altering the existing legal and equitable interests of the parties – Where the Husband’s application for property settlement orders is dismissed.

Family Law Act 1975(Cth)

Mallet and Mallet (1984) 156 CLR 605
Marker & Marker [1998] FamCA 42
McCall & Clark (2009) FLC 93-405
Stanford v Stanford (2012) 247 CLR 108
Vigano & Desmond (2012) FLC 93-509

APPLICANT: Ms Farina

RESPONDENT: Mr Naima

FILE NUMBER: BRC 9358 of 2014

DATE DELIVERED: 28 July 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 16, 17, 18 & 19 January 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Galloway

SOLICITOR FOR THE APPLICANT: Maguire Barnes Family Lawyers

THE RESPONDENT:	In person (assisted by an interpreter on 16,17 & 18 January 2017)
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Harding

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Carter Farquar Mediation & Family Law

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. Mr Naima’s application for property settlement orders (as detailed in paragraphs 12 to 24 of the Amended Response filed 18 January 2016 and in paragraphs 12 to 25 and 27 to 29 of the Amended Response filed 14 September 2016) is dismissed.

2. In the event Ms Farina seeks an order that Mr Naima pay the costs of and incidental to the property settlement aspect of the proceedings:

   (a)Ms Farina shall file and serve brief written submissions in support of such application for costs within twenty-eight (28) days of today; and

   (b)Mr Naima shall file and serve, within a further twenty-eight (28) days thereafter, any brief written submissions in answer to the submissions filed and served on him by Ms Farina; and

   (c)Ms Farina shall file and serve any brief further written submissions within fourteen (14) days of its service, strictly in reply to the submissions served by Mr Naima,

   and the application for costs shall be considered in Chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Farina & Naima (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9358 of 2014

Ms Farina

Applicant

And

Mr Naima

Respondent

REASONS FOR JUDGMENT

1. Ms Farina and Mr Naima met over the internet in either early October 2007 (according to Mr Naima) or about early 2008 (according to Ms Farina). They met in person in Country J in Africa in about mid-May 2008 when Ms Farina travelled there for an approximately ten day holiday.

2. After returning to Australia on about 21 May 2008, Ms Farina discovered she was pregnant. The parties’ child, E, was born in 2009. Her conception was unplanned and linked together two people whose personal relationship was, at that time, extremely limited.

3. E is her father’s only child.

4. Her mother has three other children:  Mr K (born in 1999), L (born in 2003) and M (born in 2007). Whilst Mr K now lives independently, L and M both still live with their mother and spend regular time with their father.[1]

   [1]           From Thursday until Monday each fortnight and for half of the school holiday periods.

5. E has always lived primarily with her mother. To date, her time with her father has been very limited and somewhat sporadic. After evidence was given by a Family Consultant on 17 January 2017, agreement was substantially reached between Ms Farina, Mr Naima and the Independent Children’s Lawyer about the terms of interim parenting orders. Such orders, supplemented by further interim orders about a few issues which remained in dispute, were made by the Court on 18 January 2017. They involve a process of therapeutic reintroduction of E to her father and support for their relationship.

6. Consideration of what follows occurs in the context that Ms Farina’s case is that the Court should dismiss Mr Naima’s application for property settlement orders because it will not be satisfied that, in all the circumstances, it is just and equitable to make any such order in these proceedings, whereas Mr Naima contends to the contrary.

7. More specific reference to their respective contentions will follow.

8. It is, I think, of assistance in the consideration of the matters mandated by the relevant sections of the Family Law Act1975 (Cth)[2] to outline in some detail the parties’ living arrangements and to chronicle those relevant events which predated the hearing.

Who lived where and when?

[2]Sections 90SB, 90SK, 90SM and 90SF(3) (if Ms Farina is correct and the parties were not in fact married in Country J in 2010) or sections 79 and 75(2) (if Mr Naima is correct and the parties were in fact married in Country J in 2010).

June/July 2010

1. The parties agree that Ms Farina took E with her to visit Mr Naima between about 30 June 2010 and 13 July 2010. However, they disagree about which of them paid the air travel costs associated with this trip: Mr Naima alleges he paid these costs whilst Ms Farina asserts that she did.

2. Mr Naima alleges that he and Ms Farina married during this trip. He says that, associated with this, he bought Ms Farina a ring he says was valued at about $3,250.00 and gave her $6,000.00 in cash. Ms Farina denies that the parties married. She also denies that Mr Naima gave her a ring or any money at this time.

3. Mr Naima also says his father gave Ms Farina and E approximately $9,000.00 whilst they were in Country J. Ms Farina denies this.

   5 August 2010 – 29 August 2010

4. Mr Naima travelled to Australia on about 5 August 2010. He says he gave Ms Farina about $7,000.00 in cash on the day of his arrival. Ms Farina denies that he gave her any money. Mr Naima alleges that, between 5 August 2010 and 29 August 2010, he lived with Ms Farina and her children “as a family” at N Street, Suburb C. He also alleges that he and Ms Farina started to plan to buy land and build a home. Ms Farina accepts that Mr Naima stayed with her and the children at her home during this time, but denies any plans with Mr Naima to purchase land and/or build a home.

5. Mr Naima returned to Country J on 30 August 2010.

   11 November 2010 – 24 November 2010

6. Mr Naima lived in Country J until 11 November 2010, when he again travelled to Brisbane. He alleges he gave Ms Farina $6,000.00 in cash on the day of his arrival – again, she denies this proposition. It is, however, agreed that Mr Naima stayed with Ms Farina and the children until 24 November 2010, when he returned to Country J.

   24 December 2010 – 8 January 2011

7. Mr Naima travelled to Australia on 24 December 2010. He remained here until 8 January 2011 and then returned to Country J. He alleges he gave Ms Farina $8,000.00 in cash on his arrival in this country – a contention she denies. He also alleges that, during this visit to Australia, Ms Farina told him she had purchased land; he says they went to see this and viewed display homes. Ms Farina denies that she started to plan buying land and building a house with Mr Naima; she also denies his assertion that she sent him three sets of plans for a house, with a request that he choose one. She says she selected the plan for the home in consultation with her father.[3]

   [3]          Affidavit of Ms Farina, filed 16 January 2017 [3(f)] and [3(g)]. 

   4 July 2011 – 1 September 2011

8. Mr Naima travelled to Brisbane again on 4 July 2011. He says he gave Ms  Farina $9,700.00 on his arrival on this occasion – Ms Farina denies this. He lived with Ms Farina and the children until 1 September 2011, when he returned to Country J. Mr Naima asserts that, during this stay, he helped Ms Farina set up the new house at B Street, Suburb C (the property in which Ms Farina and the children remain living). Ms Farina denies that Mr Naima helped her to set up the household at the Suburb C property and asserts she did not take possession of this home until it was finally completed in November 2011.[4]

   [4]          Affidavit of Ms Farina, filed 16 January 2017 [3(h)].

   Early April 2012 – 21 April 2012

9. Mr Naima alleges that he paid $3,000.00 to purchase tickets for Ms Farina and E to visit him in Country J in April 2012. Ms Farina does not specifically address this assertion, other than by asserting that there were no occasions on which Mr Naima provided her with money. Whilst Ms Farina says she paid for the costs associated with E’s visit to Country J in 2010, she does not specifically mention the costs associated with the 2012 trip other than to note that Mr Naima took her and E to an apartment he owned.[5] Mr Naima asserts that, during this visit to Country J, his brother gave Ms Farina $7,000.00. Ms Farina denies this assertion. Mr Naima also says he gave Ms Farina $8,500.00 when she left Country J to return to Australia with E on 21 April 2012. Again, Ms Farina rejects this contention.

   [5]          Affidavit of Ms Farina, filed 16 January 2017 [3(e)].

   26 June 2012 – 18 November 2012

10. Mr Naima travelled to Brisbane again on 26 June 2012 to stay with Ms Farina and the children. His Case Information document[6] contains the assertion that he gave Ms Farina $11,000.00 on his arrival and she gave him a wedding ring. Ms  Farina denies both of these assertions. During this visit, the parties opened a joint bank account: it is uncontentious that this was associated, in part at least, with Mr Naima’s ongoing Visa application. On about 27 September 2012, Ms Farina completed an Application by which she sought the grant of permanent residence for Mr Naima. On 18 November 2012, Mr Naima left Australia to return to Country J.

    [6]           Filed 16 December 2016.

    31 May 2013 – 7 November 2013

11. Mr Naima returned to Brisbane on 31 May 2013. He also returned to living with Ms Farina and the children. He says he gave Ms Farina $7,000.00 for her to use in purchasing a motor vehicle. Ms Farina denies that Mr Naima gave her any money on this occasion.

12. On 12 June 2013, Mr Naima was granted a Temporary Residence Visa.

13. Mr Naima left Brisbane for Country J on 7 November 2013.

    26 November 2013

14. Mr Naima returned to Brisbane on 26 November 2013. He resumed living with Ms Farina and the children at the Suburb C property. He says he gave Ms Farina $10,000.00 in cash on 22 December 2013 and that, on this date, she “promised” him 20 per cent of her business. Ms Farina denies both of these assertions.

15. It seems that Mr Naima, Ms Farina and E travelled to Newcastle in January 2014 to finalise preparations for the opening of the V Centre.  Mr Naima contends that he was significantly involved in tasks associated with these preparations. Ms Farina contends that his involvement was limited to moving a refrigerator and providing very minor assistance.

16. The parties separated when Mr Naima left the Suburb C property on 12 March 2014.

Summary of the time during which the parties lived together

1. Having regard to the matters set out above, it seems to me that the actual periods of time during which the parties lived together and the location in which they lived was as follows:

Date Range	Location	Approximate Duration
30 June 2013 – 13 July 2010	Country J	14 days
5 August 2010 – 29 August 2010	Australia	24 days
11 November 2010 – 24 November 2010	Australia	13 days
24 December 2010 – 8 January 2011	Australia	15 days
4 July 2011 – 1 September 2011	Australia	2 months
Early April 2012 – 21 April 2012	Country J	21 days
26 June 2012 – 18 November 2012	Australia	Nearly 5 months
31 May 2013 – 7 November 2013	Australia	5 months, 1 week
26 November 2013 – 12 March 2014	Australia	3.5 months

Summary of Mr Naima’s asserted financial contributions, via the asserted provision of cash to Ms Farina

1. Having regard to the matters set out above, it seems to me that Mr Naima’s evidence about his direct financial contributions by way of cash payments (and the purchase of jewellery) and the direct financial contributions he alleges were made by members of his family to Ms Farina can be summarised as follows:

Date	Item	Amount
1 July 2010	Ring (approximately)	$3,250.00
1 July 2010	Cash	$6,000.00[7]
11 July 2010	Gift - Mr Naima’s father (approximately)	$9,000.00[8]
5 August 2010	Cash (approximately)	$7,000.00[9]
11 November 2010	Cash	$6,000.00[10]
24 December 2010	Cash	$4,000.00[11]
4 July 2011	Cash	$9,700.00[12]
2 February 2012	Airfare to Country J	$3,000.00[13]
17 April 2012	Gift - Mr Naima’s sisters and brother	$7,000.00[14]
21 April 2012	Cash	$8,500.00[15]
26 June 2012	Cash	$11,000.00[16]
31 May 2013	Cash – share motor vehicle[17] (which appears inconsistent with the amount below)	$10,000.00
1 June 2013	Cash - purchase of motor vehicle (presumably, the above)[18]	$7,000.00
22 December 2013	Cash	$10,000.00[19]
23 June 2014	Ms Farina transferred funds from Mr Naima’s bank account to her son’s bank account, but does not specify the amount.[20]	Not known
Total	$101,450.00

[7]          Mr Naima’s Case Information Document, filed 16 December 2016, p 6.

[8]          Mr Naima’s Case Information Document, filed 16 December 2016, p 6.

[9]          Mr Naima’s Case Information Document, filed 16 December 2016, p 7.

[10]         Mr Naima’s Case Information Document, filed 16 December 2016, p 7.

[11]         Mr Naima’s Case Information Document, filed 16 December 2016, p 7.

[12]         Mr Naima’s Case Information Document, filed 16 December 2016, p 7.

[13]         Mr Naima’s Case Information Document, filed 16 December 2016, p 7.

[14]         Mr Naima’s Case Information Document, filed 16 December 2016, p 8.

[15]         Mr Naima’s Case Information Document, filed 16 December 2016, p 7.

[16]         Mr Naima’s Case Information Document, filed 16 December 2016, p 8.

[17] Affidavit of Mr Naima, filed 20 July 2016 [23].

[18]         Mr Naima’s Case Information Document, filed 16 December 2016, p 9.

[19]         Mr Naima’s Case Information Document, filed 16 December 2016, p 9.

[20] Affidavit of Mr Naima, filed 18 January 2016 [93].

1. As already noted, Ms Farina denies that Mr Naima or his family provided her with any of these funds or that he provided her with jewellery.

The parties’ credit

1. The extreme discrepancy in the account of each of the parties about the asserted provision by Mr Naima of cash and jewellery to Ms Farina during their relationship makes it particularly necessary to consider the credit of each party.

2. As already noted, Mr Naima’s Case Information document[21] contains the assertion that, on 26 June 2012, he gave Ms Farina $11,000.00 when he arrived in Brisbane. However, when cross-examined by Counsel for Ms Farina, he said this was an error and that he had actually given her $10,000.00.

   [21]         Filed 16 December 2016, p 8.

3. Counsel for Ms Farina suggested, in essence, that Mr Naima had “corrected” his earlier account of the amount he said he had given Ms Farina because he realised he had been obliged to make a declaration if he had more than $10,000.00 in his possession when he entered Australia. Such suggestion implies that there is no evidence Mr Naima had made such a declaration to the relevant authorities at the time and I understood that Mr Naima did not suggest to the contrary.

4. Whilst I accept – as Mr Naima contended – that a person is, perhaps, unlikely to take a photograph of the occasion/s on which they provide a gift of cash to the other parent of their child,  a photograph is not the only means by which the existence of funds can be established: for example, I do not have any documents from Mr Naima to show that, immediately before any of the occasions on which he says he provided Ms Farina with what is highly likely to have been a relatively large amount of money for him, such funds actually existed:  there is no bank statement, no bankbook, no receipt from the person or organisation which changed Country J dollars into Australian dollars – or anything like this – to actually make it more likely than not that Mr Naima had the funds which he says he provided to Ms Farina or that he, in fact, provided her with any funds at all in the manner he asserts.

5. Given his change of account and the absence of any independent or institutional documentary evidence (which is more likely than not to have been particularly available to him – rather than Ms Farina), I do not accept that Mr Naima simply made a mistake when he gave his evidence that he had provided $11,000.00 to Ms Farina.

6. In addition, this discrepancy in his account, combined with the absence of any corroborative documentary evidence, is sufficient to persuade me to prefer the evidence given by Ms Farina to that given by Mr Naima where the two are in conflict.

Each party’s current living arrangements

1. Ms Farina currently lives with her partner, Mr O, E, M, and L at the Suburb C property. Mr O, who works for Company P, has two children, (Q and R) who live primarily with their mother and spend time with him each alternate weekend and during school holiday periods.

2. Mr Naima currently lives in a nearby suburb in rented premises. His partner, Ms S and her two children (six year old T and ten year old U) live with him on weekends. Ms S is in paid employment.

The competing proposals

Ms Farina’s proposal

1. Ms Farina opposes the making of any orders adjusting the parties’ interests in any property and superannuation interests. She does so on the basis that the Court will not be satisfied that, in all the circumstances, it is just and equitable to make any order adjusting the interests of the parties in property owned by either of them, or in respect of their entitlements to superannuation.

   Mr Naima’s proposal

2. Mr Naima submits that the Court will be satisfied that, in all the circumstances, it is just and equitable to make an order altering the interests of the parties in the property owned by each of them.

3. The orders he seeks are set out in his Case Information document filed 16 December 2016. By way of broad summary, he proposes that:

   a)he retain his motor vehicle 1; and

   b)Ms Farina retain her motor vehicle 2; and

   c)Ms Farina pay him $16,000.00 (which he asserts is the sum required for each party to receive 50 per cent of the combined value of their motor vehicles); and

   d)he receive 50 per cent of shares owned by Ms Farina; and

   e)the parties divide equally the balances of all bank accounts; and

   f)Ms Farina pay him 50 per cent of the income (profit) she has received from V Centre from March 2014 until the finalisation of the proceedings, together with interest on the same at a rate to be determined; and

   g)Ms Farina pay him those living expenses he has incurred since separation in March 2014; and

   h)a splitting order is made in respect of Ms Farina’s entitlement to superannuation with Sunsuper so that a base amount of $43,276.50 (which is an amount equal to 50 per cent of what he contends is the value of her superannuation interest) is allocated to him.

The property of the parties and related issues

1. The parties do not dispute their existing legal interests in the property and superannuation interests. Neither party asserted the existence of any equitable interest in other property.

1. When asked by Counsel for Ms Farina, Mr Naima said he accepted ‘her’ Balance Sheet.[22] Given this, it was clear that, save for one issue, the parties were agreed about the values of the property and superannuation interests. The issue in dispute was the manner in which monies ($15,000.00) spent by Ms Farina on holiday travel to New Zealand and Melbourne should be treated, with Mr Naima asserting that such funds should be notionally added-back into the ‘pool’ of the property of the parties. I also note that, whilst Mr Naima’s Financial Statement refers to a $5,000.00 loan from an undisclosed person, the inclusion of this indebtedness, for the purposes of arriving at the nett value of the property of the parties, was not pressed; in any event, it is clearly a liability which post-dated separation and is personal to Mr Naima.

   [22]         Exhibit 3 and the subsequent schedules provided by Counsel during submissions.

2. Therefore, save for the issue of the $15,000.00 (and the consequent effect resolution of the dispute about it will have on the total value of the property), I find the existing interests of the parties in the property of the parties and the value of the same, as at the date of trial, to be as follows:

Item	Ownership		Ms Farina’s Property	Mr Naima’s Property
Assets
1.	B Street, Suburb C (former matrimonial home)		Ms Farina	$580,000.00
2.	V Centre		Ms Farina	$2,027,385.00
3.	Trustee for the W Trust		Subsumed in value of business
4.	Motor vehicle 2		Ms Farina	$40,000.00
5.	Household contents		Ms Farina	$5,000.00
6.	Motor vehicle 1		Mr Naima	$10,000.00
7.	Household contents		Mr Naima	$1,000.00
8.	NAB Bank Accounts		Ms Farina	$507.00
9.	NAB Bank Account #...20		Mr Naima	$198.00
10.	NAB Bank Account #...51		Mr Naima	$27.00
$2,652,892.00	$11,225.00
Total assets			$2,664,117.00
Liabilities
11.	Business loan	Ms Farina		($240,677.00)
12.	NAB Credit Card	Ms Farina		($10,000.00)
13.	Australian Tax Office: in respect of unpaid income tax	Ms Farina		($9,000.00)
14.	Mr X	Ms Farina		($350,000.00)
15.	Australian Tax Office: in respect of capital gains tax	Ms Farina		($400,000.00)
Total liabilities			$1,009,677.00	NIL
Nett Assets (excluding superannuation)			$1,654,440.00
Superannuation
16.	Sunsuper	Ms Farina		$86,553.00
17.	Sunsuper	Mr Naima		$3,696.00
18.	Host Plus	Mr Naima		$444.00
$86,553.00	$4,140.00
Total (Superannuation interests)			$90,693.00
Nett assets (including superannuation)			$1,745,133.00

Proposed notional add-back of Ms Farina’s holiday expenditure

1. Mr Naima asserts that the Court should notionally add-back an amount of $15,000.00 said to have been spent by Ms Farina on holidays after separation.

2. In Marker & Marker[23] the Full Court said, at paragraph 2.11, that:

   There seems to be no appropriate basis for notionally adding back moneys that existed at separation but which have been subsequently spent on meeting reasonably incurred necessary living expenses.  Neither the Family Law Act nor the case law require that parties go into a state of suspended economic animation once their marriage breaks down pending the resolution of their financial arrangements.  Parties are entitled to continue to provide for their own support.  Whether any expenditure so incurred is reasonable or extravagant is a matter that can be determined by the trial Judge.

   [23] [1998] FamCA 42.

3. I accept the submissions made by Counsel for Ms Farina that, as the notional adding back of property no longer in existence is an exception rather than the rule and as such expenditure occurred no less than about four years after separation and was, therefore, made from Ms Farina’s post-separation earnings, the Court would not be persuaded in the circumstances of this case to proceed in the manner advanced by Mr Naima.

4. In addition, I am not persuaded that Ms Farina’s expenditure of funds on holiday expenses for herself, her partner and her four children is unreasonable.

5. Consequently, for the purpose of determining the value of the property of the parties, I decline to notionally add-back the $15,000.00 spent by Ms Farina on holiday travel.

6. As I have noted earlier, Mr Naima accepted Ms Farina’s Balance Sheet at trial. This document lists her liability to her father in an amount of $350,000.00.  In case there is any issue about this, the evidence about this matter and my findings in respect of it are as set out below.

Ms Farina’s liability to her father, Mr X

1. Ms Farina contributed $130,000.00 (which she had received as a result of an earlier property settlement) to the acquisition of the Suburb C property. She said that she owed her father $350,000.00 arising from the purchase of and building upon the Suburb C property, which was completed in October/November 2011. Her proposal was that she would repay him this amount from the proceeds she would receive following the settlement of the sale of the V Centre.[24] She accepted that the balance of her father’s financial contribution to this property was gifted to her. [25]

   [24] Affidavit of Ms Farina, filed 25 November 2016 [19].

   [25] Affidavit of Ms Farina. filed 25 November 2016 [245].

2. It seems that the Suburb C property and the subsequent building contract were originally both in Mr X’s name. It also seems that legal title to the property was transferred to Ms Farina sometime in late 2015 (that is, more than about a year and a half after Ms Farina and Mr Naima separated).

3. Whilst Mr Naima did not cross-examine Ms Farina about the issue of her liability to her father, he did cross-examine Mr X about the amount he provided to her. It appeared to me from that exchange that, when Mr X advanced the funds to assist in the purchase and construction of the Suburb C property, he did not necessarily have any expectation that Ms Farina would repay him anything at any particular point in time. However, after the very successful development and sale of the V Centre, it seems they reached an agreement that she would repay him the amount of $350,000.00. His evidence was to the effect that the agreement had been fulfilled and his reimbursement with a portion of the funds he provided had been completed.

4. Despite this evidence, the submissions made by Counsel for Ms Farina included that Mr X “is” to be repaid and, as such, I was a little unsure as to whether Mr X had already been paid these funds or not.

5. In any event, I accept the evidence given by Ms Farina and her father about the monies he advanced to enable her to purchase and build the Suburb C property. I accept that, when he provided the funds, Mr X did not expect them to be repaid until Ms Farina was financially secure. I also accept that, after her financial circumstances improved following the sale of the V Centre, they agreed she would repay him $350,000.00 of the funds he had advanced and that she would accept a gift of the balance of the same.

6. Even if I am wrong in this conclusion and Ms Farina had no obligation to repay her father anything and the entirety of the monies he provided were a gift to her, it seems to me not to matter much in the particular circumstances of this case. After all, it is clear that Mr X provided funds (namely, over $400,000.00) to supplement those provided by Ms Farina and that these combined funds were used to acquire the Suburb C property and then to have a house built on it.

7. I also accept that Mr Naima made no direct financial contribution to this venture.

The contributions made by Ms Farina and Mr Naima

Initial financial contributions

1. Mr Naima contends that, at the commencement of the parties’ relationship and his migration to Australia, he had a successful business, two apartments, a car, shares and approximately 390,000 in Country J currency.[26] There is no evidence about the value of the business, the apartments, the car or the shares before me. There is no documentary evidence to support his contention as to the existence of the funds. Save for his assertions about the provision of funds on various occasions (as outlined earlier), there is no other evidence about the contribution by him of funds to the property of the parties.

   [26] Affidavit of Mr Naima, filed 18 January 2016 [28].

2. Mr Naima also asserts that, prior to his migration to Australia, he spent approximately 450,000 in Country J currency in meeting the travel expenses of himself, Ms Farina and E, associated with maintaining their relationship. Again, there is no documentary evidence to support his contention as to the existence of the funds.

3. Mr Naima also contends that Ms Farina ceased working for remuneration after E was born and he financially supported her and E until she resumed engagement in paid remuneration in about November 2010. He asserts that, during this period, he financially supported them by providing her with cash on each occasion he visited.[27] As noted earlier, Ms Farina denies any assertion that Mr Naima ever provided her with money in the amounts described or at the times described. In fact, Ms Farina’s evidence is that she struggled financially during the period between after E’s birth and her return to work in November 2010 and that her parents assisted her financially during this time.[28]

   [27] Affidavit of Mr Naima, filed 18 January 2016 [29].

   [28]         Affidavit of Ms Farina, filed 25 November 2016 [17]-[18]. 

4. In the absence of documentary corroboration of the funds Mr Naima asserts he provided Ms Farina and for the reasons identified earlier, I prefer Ms Farina’s evidence about these matters to that given by Mr Naima.

   Financial contributions to the acquisition, conservation or improvement of property throughout the relationship

5. Mr Naima said that, throughout the course of the parties’ relationship, his family gifted them approximately 120,000 in Country J currency.[29] None of Mr Naima’s family members were witnesses in the case and there is no documentary evidence before me to support this contention. Given this, I am not persuaded Mr Naima has discharged the evidentiary onus of establishing it.

   [29] Affidavit of Mr Naima, filed 18 January 2016 [31].

6. Mr Naima also said he met all expenses associated with his partner Visa application.[30] I did not understand Ms Farina to necessarily challenge this assertion. Even if I am wrong in my understanding in this respect, it is obvious that Mr Naima obtained the benefit of whatever funds he spent in obtaining the Visa which permits him to live in Australia.

   [30]Including those associated with a psychological report of E, which apparently cost $7,000.00.

7. Mr Naima also said that, in addition to such payments and the cash he alleged he provided Ms Farina at various times, Ms Farina controlled his bank account and “often transferred money from my account to hers”.[31] Save for communications about a $30.00 transfer from the account on about 23 June 2014, there is no documentary evidence to corroborate this assertion. I also note that such communications included Ms Farina’s assertion that the transfer of $30.00 to one of her children’s accounts from the account Mr Naima used was an error on her part. In the circumstances, I am not persuaded that Ms Farina often transferred money from Mr Naima’s account to an account in her name.

   [31] Affidavit of Mr Naima, filed 26 June 2015 [93].

8. I also note that the copies of bank statements Mr Naima provided as part of his evidence suggest that, in the period between about 14 August 2012 and 13 September 2012, two of the three deposits into that account were made by Ms Farina.

9. Mr Naima also said that he gave Ms Farina $10,000.00 he had borrowed from his father in Country J in November 2013 (so he could buy a car):  in essence, his evidence was that, at Ms Farina’s request and on the proviso she would repay him when she had sufficient funds, he applied these funds toward a deposit for the construction of a pool at the Suburb C property. However, whilst the pool was installed, he was not reimbursed these funds and was unable to buy a car.[32]  

   [32]         Affidavit of Mr Naima, filed 18 January 2016 [17] 

10. I do not accept his evidence in this respect.

11. Further, Mr Naima’s evidence that he borrowed $10,000.00 from his father to buy a car is, it seems to me, inconsistent with the overall implicit suggestion in his case that he was a person of sufficient monetary means to be able to give Ms Farina the total of the funds summarised in paragraph 26 above.

12. I do not accept Mr Naima’s suggestion that about half of the approximately 390,000 Country J currency he says he brought to his relationship with Ms Farina were used to establish the V Centre. I do not accept his account that, when he brought “$11,000.00” to Australia in June 2012 (the same asserted $11,000.00 which has been the subject of earlier discussion and which was then said to be $10,000.00), Ms Farina deposited these funds into a trust account for the V Centre.

13. In fact, as I prefer Ms Farina’s evidence, I do not accept Mr Naima’s assertion[33] that he made any direct financial contribution to the start-up of the V Centre established by Ms Farina and her business partner.

    [33] Affidavit of Mr Naima, filed 18 January 2016 [33].

14. I accept Ms Farina’s evidence that Mr Naima did not contribute financially to her support or that of the children or household. I also accept as more likely than not – particularly given the deposits noted at paragraph 62 – that she provided him with funds as requested and paid for all household expenses, as well as his personal expenses, during the course of their relationship. I accept her evidence to the effect that, when he received remuneration for casual employment, Mr Naima did not contribute this to meeting general household expenditures.[34]

    [34] Affidavit of Ms Farina, filed 25 November 2016 [239].

15. It follows from the above that I am not persuaded that Mr Naima made any direct or indirect financial contributions to the Suburb C property or to the V Centre; I am also not persuaded that he made any financial contribution to the running or maintenance of the household, so that Ms Farina was further enabled to divert her finances from this to meeting the costs associated with the Suburb C property and the V Centre.

    Contributions (other than financial contributions) to the acquisition, conservation or improvement of property

16. I accept Ms Farina’s evidence to the effect that there were no improvements made to the Suburb C property during the periods Mr Naima lived with her and the children in it.[35]  I also accept her evidence (as supported by that given by Mr X) to the effect that Mr Naima was not involved in selecting the plans for the property, the fit-out or its colours. Even if he had been involved in these tasks, they pale in comparison to the financial and other support that Ms Farina provided to him over the duration of their intimate personal relationship.

    [35] Affidavit of Ms Farina, filed 25 November 2016 [247].

17. Ms Farina also asserts that Mr Naima’s contribution to the establishment of the V Centre was limited to him moving a fridge at the time the centre was physically set up. In complete contrast, Mr Naima asserts that his assistance in setting up the V Centre involved him moving equipment from storage, setting up play areas outside, emptying trucks of stock and equipment and building and assembling equipment.[36]

    [36] Affidavit of Mr Naima, filed 18 January 2016 [35].

18. I generally accept Ms Farina’s evidence about Mr Naima’s contribution to the setting up of V Centre. I also note that, even on Mr Naima’s account, the tasks he asserts he performed did not really occupy a significant amount of time.

    Contribution to the welfare of the family, including in the capacity of homemaker or parent

19. To the extent that their evidence differs about Mr Naima’s contributions and actions vis-à-vis the welfare of the family, including in the capacity of homemaker or parent during their periods of cohabitation, I prefer the evidence given by Ms Farina.

20. Consequently, I accept that Ms Farina made the overwhelming contributions to E’s care and overall support from her birth until the separation of her parents. Recourse to the history of living arrangements set out earlier makes this abundantly clear. I also accept as more likely than not that, even when Mr Naima lived with Ms Farina and E, Ms Farina performed the vast majority of the parenting and homemaker tasks.

21. I do not accept the contention that Ms Farina hindered Mr Naima’s attempts to engage in paid employment or that he was hindered in such attempts by any requirement to care for her children and/or E.

    Post separation contributions

22. It is clear that, after separating from Mr Naima on 12 March 2014, Ms Farina has made the overwhelming post-separation contributions to the maintenance of the property she owns and to E’s care. I accept her evidence about the manner in which she has met E’s financial and day to day needs and about how she discharged her working commitments and responsibilities to the development of the V Centre.

23. I accept Ms Farina was involved in all aspects of the management of the V Centre after it opened in February 2014. I am not persuaded that Mr Naima made any contribution whatsoever to the development and operation of the V Centre after he and Ms Farina separated in March 2014.

24. I accept that the efforts of Ms Farina and her business partner resulted in the success of the V Centre and, more likely than not, contributed significantly to their ability to obtain the $4,150,000.00 price for it when they entered into a contract for its sale in November 2016.[37]

    [37] Affidavit of Ms Farina, filed 25 November 2016 [254].

25. I accept that Ms Farina has borne the vast majority of the financial responsibility for meeting E’s needs, especially given that Mr Naima’s contribution to meeting such needs has been limited to the payment of between $15.00 per month (on Ms Farina’s case) and $7.50 per week (on Mr Naima’s case).

Conclusions as to Contributions

1. There is no presumption of equality of contribution between parties to a marriage, irrespective of the length of their union.

2. I consider that Ms Farina made the overwhelming financial contributions to the acquisition, conservation and improvement of the property of the parties during cohabitation and after separation in March 2014 and also to the welfare of the family and in the capacity of homemaker and parent in the same period. The latter contribution must be assessed not in any “merely token way”, but in terms of its ‘true worth’ to the accumulation of property during the cohabitation.[38] 

   [38]         Mallet and Mallet (1984) 156 CLR 605.

3. I conclude that, during the parties’ relationship and until March 2014, Ms Farina’s contributions overwhelmingly outweighed any made by Mr Naima. After March 2014, she continued to contribute via her efforts in developing her business (the sale of which resulted in the vast majority of the property of the parties summarised in the table above) and in parenting and supporting E, both financially and emotionally.

4. When assessed in their totality, her contributions eclipse any contributions made by Mr Naima, especially when his very limited contribution of financial support for E and his very limited time with her since March 2014 are taken into account.

Relevant “future” matters[39]

[39]         Section 75(2) or s 90SF(3) of the Act.

1. Ms Farina is 43 years of age and owns the property detailed in the table above.  She recently sold V Centre. Whilst her evidence is that she no longer has a regular income as a result, she will receive about $1,000,000.00 (following the sale of the centre, discharge of the capital gains tax liabilities associated with the same and repayment to Mr X of the $350,000.00 discussed earlier). I accept that, once she locates a new business venture, it is likely she will embark on the same.

1. Mr Naima is 41 years of age. He currently works on a casual basis and earns about $525.00 per week from this.[40] Whilst he asserts that he cannot work any additional hours due to a foot injury,[41] there is no medical evidence to substantiate this contention.

   [40]         Financial Statement of Mr Naima, filed 25 November 2016, p 1.

   [41] Affidavit of Mr Naima, filed 18 January 2016 [42].

2. In any event, it is clear that Ms Farina’s financial circumstances are now significantly superior to those of Mr Naima. The most significant reasons for this are that she applied the funds she received from a previous property settlement to the acquisition of the Suburb C property (assisted by her father, Mr X) and also worked to develop the V Centre which was subsequently sold for a not insignificant amount of money.

3. Ms Farina has the overwhelming care of E, who is only eight years of age. She is much more likely than not to continue to have this responsibility. She also has at least some financial responsibility for her children from a previous relationship.

4. Mr Naima pays very limited child support for E and does not have the responsibility for the care of any other children as his partner’s children only spend time with him on weekends. It seems much more likely than not that the level of financial support Mr Naima will be able to provide to E in the future will remain extremely limited, with the result that Ms Farina will continue to bear the overwhelming responsibility for E’s financial support.

5. I am not persuaded that Mr Naima made any contribution to Ms Farina’s  current financial situation, her earning capacity, her property or her financial resources: in my view, these are matters to which she has contributed exclusively of Mr Naima. In contrast, I consider that Ms Farina has contributed to Mr Naima’s earning capacity in that she supported his application to obtain the right to live and work in Australia.

Is it just and equitable to make any order in this case?

1. It is clear that the bare fact of separation does not show that it is just and equitable to make a property settlement order.[42] Further, the exercise of the discretion conferred on the Court to make orders in property settlement proceedings must not proceed on an assumption that the parties’ interests in property are, or should be, different from those determined by common law and equity.[43]

   [42]         Stanford v Stanford (2012) 247 CLR 108 at [43].

   [43]         Stanford v Stanford (2012) 247 CLR 108at [39].

2. It is also clear that the determination of 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 section 79 (4).[44] The court must have a principled reason for interfering with the existing legal and equitable interests of the parties and whatever may have been their stated or unstated assumptions and agreements about property interest during the continuance of their relationship.[45]

   [44]         Stanford v Stanford (2012) 247 CLR 108 at [40].

   [45]         Stanford v Stanford (2012) 247 CLR 108 at [41].

3. In the circumstances of this case, I am not persuaded that it is just and equitable to make orders altering the existing legal and equitable interests of Ms Farina and Mr Naima in the property referred to in paragraph 41.

4. I have arrived at this conclusion because it seems to me that this is a case in which the parties lived essentially independent financial lives: they own no property jointly; their only joint bank account was one opened to facilitate Mr Naima’s application for residency in Australia; Ms Farina ran and operated the V Centre (which opened the month before separation in 2014) with her business partner completely independently of Mr Naima and she acquired the Suburb C property and the V Centre without financial contribution from Mr Naima.

5. I have also taken into account the relatively short periods of time during which the parties were actually in the same country and living together; my findings about the absence of financial contributions made by Mr Naima during the relationship (and after separation) to the property owned by Ms Farina; my acceptance of Ms Farina’s evidence about her financial support of Mr Naima at times during their periods of cohabitation; my findings about the very limited extent of any non-financial contributions made by Mr Naima during those periods when the parties cohabited; my findings about Mr Naima’s very limited homemaker and parenting contributions during the periods of cohabitation; my findings about Ms Farina’s almost complete responsibility for E’s care and financial support and my findings that she is much more likely than not to bear such ongoing financial responsibility into the future.

6. In summary, I am not persuaded in any way that the very limited contributions I have found Mr Naima to have made in the circumstances of this case, as outlined above, have affected the existing interests of these parties in property.

7. For the reasons outlined above, I dismiss Mr Naima’s application for property settlement orders.

I certify that the preceding ninety six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 28 July 2017.

Associate:     

Date:    28 July 2017