Farina & Siang
[2023] FedCFamC2F 665
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Farina & Siang [2023] FedCFamC2F 665
File number(s): PAC 5556 of 2014 Judgment of: JUDGE NEWBRUN Date of judgment: 1 June 2023 Catchwords: FAMILY LAW – PROPERTY– Just and equitable property Orders made. Legislation: Family Law Act 1975 (Cth) ss 72(2), 79 Cases cited: Bevan v Bevan (2013) 49 Fam LR 387
Lotta & Lotta [2017] FamCA 50
Robb & Robb (1995) FLC 92-555
Division: Division 2 Family Law Number of paragraphs: 239 Date of hearing: 8–10 May 2023 Place: Parramatta Counsel for the Applicant: Ms Gibbons Solicitor for the Applicant: Stewart Law Pty Ltd Counsel for the Respondent: Mr Breeze Solicitor for the Respondent: Prime Lawyers ORDERS
PAC 5556 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR FARINA
ApplicantAND: MS SIANG
Respondent
order made by:
JUDGE NEWBRUN
DATE OF ORDER:
1 June 2023
THE COURT ORDERS THAT:
1.The wife shall pay to the husband the sum of $109,825 within 3 months.
2.Failing the wife’s compliance with the above Order, then the parties will do all acts and things necessary to list the property at B Street, Suburb C (‘the property’) for sale, in such manner and for such sum as agreed between the parties and failing agreement, as determined by the Real Estate Institute of NSW, and to sell the property for the best price reasonably obtainable.
3.That upon the sale of the property, the parties shall distribute the proceeds of sale in the following manner and priority:
(a)In discharge of the mortgage to Westpac Bank secured over the property;
(b)In payment of agent’s commission and expenses on the sale;
(c)In payment of the legal costs and disbursements and other agreed costs associated with the sale;
(d)In adjustment of rates, levies and taxes on the property;
(e)In payment of the balance remaining as follows:
(i)$109,825 to the husband less his half share of the expenses in (b)–(d) above,
(ii)$533,175 to the wife less her half share of the expenses in (b)–(d) above.
4.The husband shall do all reasonable acts and things to cause the Caveat secured by L Law Firm Barristers and Solicitors over the property to be removed. If, despite such reasonable action by the husband, such Caveat is not removed, the husband shall then contact the wife’s lawyers and inform them accordingly. If the wife has to issue a Lapsing Notice against L Law Firm Barristers and Solicitors to effect the Caveat’s removal, the husband shall pay 50 per cent of the legal fees associated with the Lapsing Notice proceedings.
5.Subject to the above Orders, the husband shall be solely responsible for the following liabilities and will keep the wife indemnified in relation to these liabilities:
(a)The mortgage secured over the M Street, Suburb N property through Company O, account …43;
(b)Child Support Agency arrears in relation to the children, X and Y;
(c)Any tax liability owed to Australia Taxation Office;
(d)Unpaid legal fees owed to L Law Firm Barristers and Solicitors; and
(e)The following debt acquired by Company P:
Company P Reference Original Creditor (i) …27 Q Pty Ltd (ii) …02 Company R (iii) …99 National Australia Bank (iv) …15 Telstra Corporation Limited
6.Subject to the above Orders, the wife shall be solely responsible for the following liabilities and will keep the husband indemnified in relation to these liabilities:
(a)The mortgage secured over the property through Westpac, account …27;
(b)All loans by the wife from Mr S; and
(c)Any other monies owed to the wife’s family and/or friends.
7.The husband shall be declared to be the sole legal and beneficial owner of his right, title and interest in and to:
(a)All cash at banks and monies invested in the husband’s sole name;
(b)All furniture and personal effects in the husband’s possession; and
(c)Subject to these Orders, all superannuation entitlements received by the husband and invested by or on his behalf.
8.The wife shall be declared to be the sole legal and beneficial owner of her right, title and interest in and to:
(a)All cash at banks and monies invested in the wife’s sole name;
(b)All furniture and personal effects in the wife’s possession; and
(c)Subject to these Orders, all superannuation entitlements received by the wife and invested by or on her behalf.
9.Subject to the above Orders, the husband shall forthwith be declared entitled to retain any right title or interest in all items of property presently in the possession or custody of himself including but not limited to real property, monies held in any bank, building society or credit union, shares, superannuation or life entitlements, motor vehicles, chattels, furniture, furnishings and personal effects.
10.Subject to the above Orders, the wife shall forthwith be declared entitled to retain any right title or interest in all items of property presently in the possession or custody of herself including but not limited to real property, monies held in any bank, building society or credit union, shares, superannuation or life entitlements, motor vehicles, chattels, furniture, furnishings and personal effects.
11.In the event that either party fails to sign any necessary document of instrument or to do any acts required or contemplated by these Orders to be done with such failure continuing for fourteen (14) days, then a Registrar of the Federal Circuit and Family Court of Australia, in pursuance of the Orders conferred on him or her under section 106A of the Family Law Act 1975, as amended, shall have the power to execute any document or instrument in the name of the person who has refused or neglected to sign any necessary document or instrument or to do any act required or contemplated by these Orders.
12.Each party has liberty to apply in relation to the implementation or enforcement of these Orders upon 14 days’ notice.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Siang & Farina has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
These are Reasons for Judgment relating to a final property hearing held before the Court on 8, 9, and 10 May 2023.
The husband, aged 61 years, works as a tradesman.
The wife, aged 50 years, hails from Country J, and emigrated to Australia in about 2008. From about 2009 she worked as a hospitality worker and ceased work in about 2015. The wife gave oral evidence through a Country J interpreter.
The parties met in about 2009 in Sydney, and were married in 2010. They separated on 3 November 2014. There were no children of the parties’ relationship.
In early 2011 real estate at B Street, Suburb C (‘the property’) was purchased in the name of the wife and during the parties relationship they lived in the property. During the parties’ relationship significant renovation work was carried out at the property including home improvements.
PROPOSALS
The husband sought Orders as set out in Annexure A to his Case Outline filed 27 October 2022, inter alia, that the property be sold and that the net proceeds of sale be divided equally between the parties. Annexure A stated:
[B Street, Suburb C] Property
1.… the parties will do all acts and things necessary to list the [B Street, Suburb C] Property for sale, in such manner and for such sum to be as agreed between the parties and failing agreement, as determined by the Real Estate Institute of NSW and to sell the [B Street, Suburb C] Property for the best price reasonably obtainable.
2.That upon the sale of the [B Street, Suburb C] Property, the parties shall distribute the proceeds of sale in the following manner and priority:
i.In payment of agent’s commission and expenses on the sale;
ii.In payment of the legal costs and disbursements and other agreed costs associated with the sale;
iii.In discharge of the mortgage to Westpac Bank secured over the property;
iv. In adjustment of rates, levies and taxes on the property;
v. In payment of the balance remaining as follows:
a) 50% to the wife; and
b) 50% to the husband.
The wife sought Orders as set out in her Amended Response filed 17 February 2022; inter alia, that the husband retain his ownership in a property at M Street, Suburb N, and that the wife retain her ownership in the property. She also sought Orders that:
3.… the Applicant (Husband) must do all acts and things to discuss with [L Law Firm] Barristers and Solicitors the removal of the Caveat secured by [L Law Firm] Barristers and Solicitors over the [B Street, Suburb C] property. In the event the Applicant (Husband) is unsuccessful in his discussions with [L Law Firm] Barristers and Solicitors, then he must contact the Respondent (Wife)’s lawyers within seven (7) days of having spoken with [L Law Firm] Barristers and Solicitors. If the Respondent (Wife) has to issue a Lapsing Notice against [L Law Firm] Barristers and Solicitors, the Applicant (Husband) must pay 50 percent of the legal fees associated with the Lapsing Notice proceedings.
4.The Applicant (Husband) shall be solely responsible for the following liabilities and will keep the Applicant (Husband) indemnified in relation to the liabilities:
4.1The mortgage secured over the [M Street, Suburb N] property through [Company O], account […43].
4.2Child Support Agency arrears in relation to the children, [X] and [Y].
4.3 Any tax liability owed to Australia Taxation Office.
4.4 Unpaid legal fees owed to L Law Firm Barristers and Solicitors.
4.5 The following debt acquired by Company P Group:
Company P Reference Original Creditor 4.5.1 …27 Q Pty Ltd 4.5.2 …02 Company R 4.5.3 …99 National Australia Bank 4.5.4 …15 Telstra Corporation Limited
5.The Respondent (Wife) shall be solely responsible for the following liabilities and will keep the Applicant (Husband) indemnified in relation to the liabilities:
5.1The mortgage secured over the [B Street, Suburb C] property through Westpac, account […27].
5.2Loan from [Mr S]; and
5.3Any other monies owed to family and/or friends.
6.… the Applicant (Husband) shall be declared to be the sole legal and beneficial owner of his right, title and interest in and to:
13.1 All cash at banks and monies invested in the Applicant’s sole name.
13.2 All furniture and personal effects in the Applicant’s possession;
13.3Subject to these Orders, all superannuation entitlements received by the Applicant and invested by or on his behalf.
7.… the Respondent (Wife) shall be declared to be the sole legal and beneficial owner of her right, title and interest in and to:
14.1 All cash at banks and monies invested in The Respondent’s sole name.
14.2 All furniture and personal effects in The Respondent’s possession;
14.3 Subject to these Orders, all superannuation entitlements received by The Respondent and invested by or on his behalf.
8.Each party shall forthwith be declared entitled to retain and shall relinquish in favour of the other party any claim to any right title or interest in all items of property presently in possession or custody of the other party including but not limited to real property, monies held in any bank, building society or credit union, shares, superannuation or life entitlements, motor vehicles, chattels, furniture, furnishings and personal effects.
9.The parties hereby declare that they are not aware of any liability to which either of them has either a joint or several liability with the other, including but without limiting the generality of the foregoing, any bank, credit or charge accounts, guarantees and any liability resulting from any of the parties previous business (if any) and any other dealings.
10.In the event that either party fails to sign any necessary document of instrument or to do any acts required or contemplated by these Orders to be done with such failure continuing for fourteen (14) days, then the registrar of the Family Court of Australia in pursuance of the Orders conferred on him or her under Section 106A of the Family Law Act 1975, as amended, shall have the power to execute any document or instrument in the name of the person who has refused or neglected to sign any necessary document or instrument or to do any act required or contemplated by these Orders.
MATERIAL RELIED UPON
The husband relied upon the following documents:
(a)His Case Outline filed 27 October 2022;
(b)His Initiating Application filed 18 November 2014;
(c)His affidavit filed 28 May 2021;
(d)His Financial Statement filed 28 May 2021;
(e)Affidavit of Mr T filed 31 May 2021;
(f)Affidavit of Mr U filed 31 May 2021;
(g)Affidavit of Mr V filed 28 October 2021;
(h)Affidavit of Mr W filed 7 March 2022;
(i)His amended affidavit in reply filed 27 October 2022.
The wife relied upon the following documents:
(a)Her Case Outline filed 28 October 2022;
(b)Her Amended Response filed 17 February 2022;
(c)Her affidavits filed 17 February 2022 and 27 March 2023;
(a)Her Financial Statement filed 17 February 2022;
(b)Joint valuation report of Mr Z dated 2 November 2015;
(c)Joint valuation report of Mr AB dated 16 April 2019;
(d)Affidavit of Mr S filed 27 October 2022.
(e)Her aide-mémoire containing a schedule for the husband’s NAB bank account ending …95 for hardware/materials.
The exhibits were as follows:
(a)Exhibit A: Income Tax Accounts of Mr Farina for the period 1 July 2009 to 30 June 2016;
(b)Exhibit B: 2013 Individual Tax Return of Mr Farina;
(c)Exhibit C: Pages 54–255 of the Respondent Wife’s Tender Bundle;
(d)Exhibit D: Pages 1–28 of the Applicant Husband’s Tender Bundle.
EVIDENCE
The Court has considered the documentary material relied upon by the parties discussed above, the parties’ oral evidence, the oral evidence of the husband’s lay witnesses (Mr V, Mr T, Mr U) and expert building assessor Mr W, and the wife’s lay witness (Mr S).
The standard of proof applied by the Court in respect to the evidence is the balance of probabilities. The Court does not propose to set out the entirety of the evidence. Relevant evidence relating to the issues to be determined will be set out below and under the headings “Balance sheet”, “Contributions”, and “Section 75(2)”. Where there is any conflict between the evidence referred to below and in those sections of these Reasons, the evidence under the headings “Balance sheet”, “Contributions” and “Section 75(2)” shall take precedence.
Credit
The Court found the husband to be an honest witness who sought to give responsive answers to questions asked of him. He impressed the Court as being an experienced tradesman.
The Court found the wife to be an unsatisfactory and unreliable witness.
The wife significantly altered her evidence during her cross-examination on a Westpac loan application (forming part of Exhibit D) and she was evasive.
She was cross-examined at length in relation to a Westpac loan application form that she had signed in about early 2011 in respect to obtaining a loan to purchase the property. The wife confirmed that a loan broker for Westpac, a Country J lady who spoke the wife’s language (Country J), interviewed her in relation to the loan application and that she understood the broker.
The Westpac loan application had stated “Loan Purpose: Investment”. The wife was asked whether the purpose of the loan that she had told the bank was an investment loan, to which the wife disagreed. A short time later she was asked whether she told the Westpac loan broker that she wanted the money for an investment purpose, to which the wife agreed.
The Westpac loan application had stated that the wife’s residential address was a property in City AC, Country J, and the wife agreed that she had stated this to the broker. The Westpac loan application had also stated that the wife was the owner of this property, valued at $500,000. However the wife initially stated that this property belonged to her father. A short time later, when questioned by the Court, the wife admitted that she owned this property. However a short time later, in cross examination, the wife stated that she could not recall telling the broker that she owned this property.
The Court observes that the wife’s affidavit filed 17 February 2022, at paragraph 27, in which she stated that when she applied for the mortgage with Westpac she gave them details of her parent’s property in Country J, being a property in the Region AD, Country J, in order that the bank could use it as a guarantee for the property (to be purchased), was not correct, with the Court observing that this property of the wife’s parents was not referred to in the Westpac loan application.
The wife’s oral evidence during cross-examination on the Westpac loan application was otherwise unsatisfactory, and in this regard, for example, the Court refers to her evidence relating to a letter dated January 2011 from the Company AE in City AC, Country J, provided by her to the broker, stating the wife was currently employed full time as a hospitality worker earning AUD $64,615 p.a.
A further example was the cross-examination of the wife when she was confronted with a letter dated January 2011 from a real estate agent to herself referring to a rental estimate for the property between $500–$520 per week and which had been provided to the broker. The wife agreed that the letter was to persuade the bank that she would be able to cover the mortgage payments. She then agreed that she intended to live in the property and she did not want to rent it out. She then agreed that she had told the broker that renting out the property was a way she would pay the mortgage, but then altered that evidence. The Court then asked the wife why she provided the rental appraisal letter to the broker when she intended to live at the property, to which the wife replied that she did not know, that the husband was with her, it was all in English and she did not understand.
The short time later, the wife confirmed that she did understand what the broker told her, that the information that she provided to the broker at the time was accurate, but after so many years she had forgotten everything.
The wife was cross-examined as to various detailed allegations made in her affidavit filed 17 February 2022. In this context, there were numerous occasions when the wife responded that she simply could not recall the detail of her allegations.
For example, when it was put to the wife that she had stated that she borrowed money from her employer Ms AF in about January 2011 (see paragraph 25 of the wife’s affidavit) the wife stated that she did not recall the date.
For example, the wife was asked whether she entered into a Deed with Mr S in April 2019 to which the wife replied that she did not recall.
The wife was cross-examined as to allegations she had made in her affidavit filed 27 March 2023 that she had purchased materials for renovations of the property. She had stated in paragraph 27 that the husband had not carried out the electrical work for the renovations. She stated that she paid a licensed electrician to carry out the electrical work. She had stated in paragraph 27 that the husband had caused an affidavit from Mr V to be filed in relation to electrical work carried out by Mr V in the kitchen and bedroom of the property. She stated that she did not know the name of the electrician that carried out the work and it was not anyone known to herself or the husband. In cross-examination, the wife was questioned whether on the basis of the contents of paragraph 27 of her affidavit she was stating that Mr V did not carry out the electrical work, to which the wife replied that she did not know.
The Court should state that at no stage during the three day final property hearing did the wife or her legal representatives make any complaint to the Court that the Country J interpreter assisting the wife was incompetent.
Where there is any conflict between the evidence of the parties, the Court prefers the evidence of the husband, subject to any express finding of the court to the contrary.
The Court will now refer to the parties’ personal affidavit and oral evidence but does not propose to set out the entirety of such evidence.
Husband’s affidavits
Husband’s affidavit filed 28 May 2021
The husband from the commencement of cohabitation applied his income to paying half the rent, buying food and other grocery items and payment of utility bills.
The husband had about $100,000 in credit card debts at the commencement of the parties’ marriage.
Since the purchase of the property, the husband has performed significant renovation works and fully maintained the property throughout the marriage.
Annexure A to the husband’s affidavit (pages 15–80) are copies of photographs of the house at the property prior to, during and after renovations that he carried out to the matrimonial home.
The husband stated that the wife has told him on numerous occasions that she owns property and businesses in Country J.
The husband denied all allegations made by the wife against him in relation to an ADVO made in 2014. The husband asserts that as the judge in the Suburb H Local Court would not hear the case, he had no choice but to agree to the AVO by consent but without admission.
The husband alleged that on or about late 2013 he was physically assaulted by the wife and she was charged by the police. An AVO was taken against the wife for his protection.
The husband lived at the property post separation and continued to maintain the property. He vacated the property on 3 July 2015 pursuant to an order of the Court made 19 June 2015.
Husband’s affidavit filed 27 October 2022
The husband stated that in late 2013 he traded in his Motor Vehicle 1 for $20,000 and which monies were put towards the wife’s purchase of a Motor Vehicle 2 (sale price $80,000) at this time.
The husband asserts that the wife has not disclosed any of the bank accounts referred to in her Westpac loan application in these proceedings.
The husband asserts that the wife told her, prior to the purchase of the property by the wife, that she had lots of assets in Country J and she could get the loan approval for the whole amount in her name.
The husband asserts that after the wife’s Westpac loan application was made the wife told him that she had to tell the broker about her property in Country J to get the loan.
The husband stated that the wife paid the mortgage for the property, and he paid about 50 per cent of the outgoings for the household and he contributed to the utilities for the property.
The husband agreed that the wife did advance $20,000 to his credit card debt. He stated that he effectively repaid that amount to the wife by trading in his Motor Vehicle 1 for $20,000 against the purchase of the wife’s Motor Vehicle 2 in about October/November 2013.
The husband denied that the wife ever paid money to him in cash towards the mortgage on his M Street, Suburb N property at any time and during the period between 2011 and 2013 as alleged by the wife.
The husband effectively admitted that the parties took a trip to City K and to visit the wife’s family in City AC, Country J, in mid-2011. In this context, the husband stated that the parties had travelled across the border by bus to Country J where the parties stayed with the wife’s parents in the wife’s home which at that time her parents were residing in.
The husband stated that because of the long hours that the wife worked, in relation to which the husband drove her and picked her up, he did most of the household chores because the wife was often tired when she came home from work.
The husband stated that on no occasion did the wife purchase or pay for any materials for the renovations. He stated that he either purchased the materials through his work or he bought them himself at the trade price.
The husband denied that the wife paid him $200 per day to carry out the renovations (the Court observes that the husband was not cross-examined in relation to this denial).
The husband stated that most of the renovations were carried out on weekends and short periods of the day or between his jobs or on his days off or holidays. He stated that sometimes he worked on the renovations after work until about midnight.
The husband stated that although his income varied it evened out over a period of 4 to 6 weeks. He stated that he rarely received cash payments for work and that mostly he traded favours with other workmates.
The husband stated that at no time was there violence perpetrated by himself on the wife.
Husband’s affidavit filed 4 May 2023
In this affidavit the husband denies significant parts of the wife’s affidavit filed 27 March 2023.
For example, the husband asserts that he attended to the removal, supply and installation of the flooring throughout the matrimonial home, completing the flooring upstairs in about January 2013 and downstairs in about May 2013. He asserts that the removal of the flooring throughout the property took about four months. He annexes to his affidavit photographs of, inter alia, flooring at the property between early 2013 and late 2013.
For example, responding to the wife’s allegations in paragraph 9 and 10 of her affidavit filed 27 March 2023, the husband states, inter alia, that he met a tradesman during a jobsite at Location AJ who owned the business and they both worked on completing the job at the Location AJ. He states that following the completion of the jobsite, he arranged the supply of the trades material for the matrimonial home from his business in return for jobs that he had done for him. He denied attending a trades store with the wife.
For example, responding to the wife’s allegations in paragraphs 13 and 15 of her affidavit filed 27 March 2023, the husband states that he laid all the tiles in all the bathrooms which included the wall and floor tiles. He states that he subcontracted for Company AK and this was the company that he purchased some of the bathroom tiles and one vanity. He states that he also purchased the waterproofing, two vanities, three shade cabinets and some tiles from a company called Company AL that he subcontracted to as well after leaving Company AK.
For example, responding to paragraph 27 of the wife’s affidavit filed 27 March 2023, the husband states that he carried out the electrical work with Mr V who oversaw what the husband was doing and assisted him where required on electrical duties for safety reasons. The husband stated that Mr V’s assistance was in return for work they had done together.
Husband’s oral evidence
The husband stated that at the commencement of the parties’ marriage (2010) his M Street, Suburb N property had an estimated equity value of $50,000. He stated that he had no mortgage documents or valuations the time of his above affidavit.
He stated his best estimate of his credit card debts was about $100,000 at the commencement of the parties’ marriage.
He stated that in respect of his Motor Vehicle 3, at the time of commencement of the parties’ marriage there was only a very small loan in existence in relation to the initial finance of the purchase of this vehicle. It was purchased for $48,000. He stated that this Motor Vehicle was disposed of during the relationship for sale price of $12,000 and which sum was paid to the finance company which was owed this sum.
He stated that the Truck at marriage had a value of about $35,000. This truck was used for the husband’s work. There was no loan for the purchase of this truck. His financial statement filed 28 May 2021 referred to this truck being model year … with a value of $6,000.
The husband stated that his Motor Vehicle 1, in existence at marriage, was traded in for the wife’s Motor Vehicle 2.
The husband confirmed he had about $100,000 in credit card debts at marriage date. As at the date of his Financial Statement filed 28 May 2021 his NAB credit card debt was $2,500. The husband denied that from marriage date (2010) to the date of his Financial Statement filed 28 May 2021 his credit card debt of about $100,000 was all but eliminated to $2,500.
He stated that $20,000 owing to Company P and referred to in his Financial Statement filed 28 May 2021 was part of his credit card debt. The husband confirmed that during the parties’ marriage the wife paid $20,000 off his credit card debts. He denied that the wife had otherwise financially supported him to enable him to pay off his credit card debt.
He stated that at marriage date he was a construction worker earning about $30,000 per annum after-tax. At this time he worked as hard as he could. He stated that during the relationship he earned more than this annual sum. Later, the husband was shown his tax return for the year ended 30 June 2013 showing total business income of $58,723, total expenses of $47,374, with a net income in his business of $11,349. It was then put to the husband that his income had plummeted for financial year ending 30 June 2013, to which he replied that he did not know.
The husband stated that he spent significant time renovating the property during the parties’ relationship. He denied that he was not able to spend as much time earning an income by reason of this renovation work.
The husband denied that he never paid for any of the household expenses.
He agreed that he did not make mortgage repayments in relation to the property directly or indirectly.
In relation to his work income flow, the husband stated that when he completed jobs he got paid. He agreed that sometimes he would not get paid for his jobs for up to 6 weeks. However he denied that during that six week period the wife was paying the household expenses.
The husband confirmed that at marriage date he did not have a debt to the ATO. He confirmed that as at the date of his financial statement filed 28 May 2021 he estimated that he owed the ATO $200,000. He stated that this debt had accumulated from marriage date to 28 May 2021.
The husband was then shown his ATO statements of account regarding income tax owed to the ATO from 1 July 2009 to 1 October 2015 (Exhibit A). The husband confirmed that as at marriage date he owed the ATO $10,087. He confirmed that as at 7 November 2014 he owed the ATO about $13,204.
The husband denied that the wife had assisted him in making mortgage repayments on his property at M Street, Suburb N. He stated that he paid these mortgage repayments out of his bank account.
The husband denied that the wife had paid $17,000 to the ATO on behalf of the husband.
The husband stated that presently he receives rent of $350 per week in respect of the property at M Street, Suburb N. He stated that during 2011 to 2013 rental received was about $220 to $250 per week and was paid usually monthly.
The husband’s attention was drawn to his NAB bank statements account number …95, dated mid 2012 referring to a final rental payment for the husband’s property at M Street, Suburb N in the sum of $646.10. The husband agreed that the tenants had moved out at about that time. The husband stated that he continued to pay the mortgage repayments from his own (work) income. The husband denied that the cash deposit of $2,000 in July 2012 and referred to in these bank statements came from the wife. He denied the wife assisted him with mortgage repayments.
The husband agreed that between 2012 and January 2014 the mortgage repayments on his property at M Street, Suburb N were about $32,087.
The husband agreed that in 2010 he suffered an injury and was hospitalised. On release from hospital he was not able to work while he rehabilitated.
The husband denied that during the marriage he was earning between $10,000 net and $30,000 net.
The husband agreed that he was able to pay a substantial sum off his credit card debt during the marriage. (The Court interpolates at this point that the husband did not at this point expressly state what such substantial sum amounted to). He agreed that he made the mortgage repayments on the M Street, Suburb N property of over $30,000. He denied that he was only able to do these things because of the wife’s financial assistance.
In relation to the payment of utilities for the property, the husband stated that sometimes he shared these expenses with the wife and sometimes the wife paid for the utilities because they were in her name. He confirmed that he shared the payment of food with the wife.
The husband stated that Westpac would not loan him monies to purchase the property because he had “default”. The husband agreed that he could not afford to make any contribution to the deposit for the purchase of the property because his income was too low and his debts were too high.
The husband was cross-examined in relation to his alleged renovation work at the property.
The husband stated that the renovation works commenced straight after the parties moved into the property in 2011. He ceased renovation work at separation in November 2014.
The husband stated that he first wrote out his renovation work in 2015 after his previous lawyer had asked him to do that and after the Court had asked him to get a report.
The husband stated that he had no doubt and there was no room for error in relation to his description of his renovation work.
The husband stated that he did not produce any receipts for the purchase of any materials for the renovation work. He stated that he tried hard to find his receipts. He stated that he used to have the receipts in a shoebox and the wife had taken that shoebox. He stated that he had not included this evidence in his affidavit because no one had asked him about it.
The husband denied that he had exaggerated the extent of his renovation work.
The husband stated that he did not use his credit card for the renovation work. He stated that his NAB account was used to pay credit card debt. He stated that all his credit cards were stopped. He stated that all his payments to his credit card was going to repay credit card debt.
The husband stated that he used his own equipment for his renovation work at the property.
The husband stated that he had some assistance from friends in relation to the renovation works at the property.
The husband denied that the wife ever paid for tradesperson’s renovation work at the property.
The husband stated that he did three years work as an apprentice tradesman in the 1970s. Mr V directed the husband in relation to electrical work. The husband stated that he assisted that person in his electrical work set out in that person’s affidavit.
The husband was questioned as to paragraph 26(zzz) of his affidavit filed 28 May 2021 in relation to him spending $6,500 to a contractor to remove several large trees. He stated he did not pay this contractor cash (for the contractor’s work) but rather the contractor took it out of the husband’s wages or contract work. He stated this contractor was his employer and he was the contractor’s employee. He stated that the contractor was Mr AM from Company AN where he and Mr V worked. He stated he was a subcontractor to Company AN. He stated that the $6,500 was offset against invoices that he had sent to Mr AM. The husband stated that that the same offsetting procedure was done with Company AK, Company AL, and one other bathroom company the name of which he could not remember. The husband stated that he would purchase such items as tiles, vanities and cabinets from these companies (for the renovations). He stated that he paid these companies for such items by having those companies reduce his invoices to those companies.
The husband stated that Mr W’s report (expert building assessor) was based on what it would have cost someone to do the renovation works.
The husband stated that he had met Mr W at the property and had told him what renovation works had been completed.
The husband denied the wife paid for materials for the renovation works.
In relation to the renovation work comprising work on the roof and the allowance for safety rails and scaffold, $5,000, the husband stated that he had his own scaffolding which he had purchased when he had done a previous job, with the purchase cost being not less than $6,000 to $7,000. He stated that a person carrying out this work would have had to have hired or paid for scaffolding.
In relation to the rumpus room renovation work in the expert report and related allowance for 48 hours to remove original tiled flooring, the husband had stated that it took him less than two days to do this work. The husband stated this was a minor inaccuracy.
The husband stated that an AVO had been taken out for the wife’s protection and one had been taken out for his protection. He stated that the one for his protection had been dismissed. He stated that the AVO for the wife had been made by consent and without admissions.
The husband states that he works as a tradesman. He lives in the Region AO area. He works seven days a week, and he carries out lots of different construction tasks. He uses subcontractors. He has two employees who work on a casual basis.
Wife’s affidavits
Wife’s affidavit filed 17 February 2022
The wife stated that the husband did perform some works of improvement around the house. She stated that it was almost 10 years ago that he undertook these works, so she cannot remember what was and was not carried out. She stated that the husband never paid for any material. She alleged that the husband’s income went to pay down his debts, and that her income was used for everything else.
Wife’s affidavit filed 27 March 2023
The wife stated she accepted that the husband conducted some of the work to improve the property however she alleged that he did not conduct all the work that he maintains he did, and alleged that she paid for tradesmen and labourers to carry out most of the work, and that she paid for almost all the materials used in the improvements.
The wife alleged that in about 2012 to 2013 she decided to have the floors in the house of the property removed and have them replaced with wooden flooring. She alleges that three male workers of Country J descent attended the property to remove the flooring over four days. She alleges she paid them cash and they provided her with a receipt for payment dated late 2013. That receipt, annexed to her affidavit, is made out to the wife in the sum of $5,500 for “installation of flooring”. The wife then alleges that later another group of about three men also of Country J descent attended the property to lay floorboards throughout the house at the property.
The wife’s oral evidence
The Court does not propose to set out the entirety of the wife’s oral evidence. The Court refers to aspects of the wife’s oral evidence under Credit above.
The wife stated that she came to Australia in 2008.
She agreed that both parties had searched and found the property. It was a five bedroom home. She agreed that shortly after moving into the home in 2011 the parties decided to renovate the home.
The wife stated that she had looked at the husband’s photos of the renovation work annexed to his affidavit filed 28 May 2021. She stated that these photos show the home under renovation.
The wife agreed that the parties had gone to the bank for a loan to purchase the property. The loan was denied to the parties together and as a result the wife had obtained the loan herself from the bank.
The wife confirmed that she had applied for a loan in early 2011 and that she had provided information to the bank to assist the bank in assessing her suitability for a loan. She had signed the loan application. She confirmed that in that application she was expected to tell the truth (to the bank).
The wife denied that she told the bank that the purpose of the loan was an investment loan.
The wife confirmed that a Country J lady (the broker referred to in the Westpac loan application) interviewed her in relation to the loan application and that she spoke the wife’s language and that the wife understood her.
The wife stated that she did not tell the broker that her marital status was “single”.
The wife confirmed that she had told the broker she had been living from 2002 in a residential address being AP Street, City AC, Country J. She confirmed her mailing address was AQ Street, Suburb AR. She confirmed she had advised the broker that her stated country residence was City K.
The wife’s attention was drawn to the entry in the loan application form, “Housing Status: Own Home” with the wife then denying that she had told the broker that she owned her own home.
The wife confirmed she had told the broker that her employment type was PAYE. She confirmed that she had told the broker that she was not self-employed, and that she worked full-time with the Company AE earning $64,615. She confirmed that she had provided a letter to the broker from the Company AE, Region AS, City AC, Country J, dated 2011 (the Court observes that that letter stated, inter alia, that the wife was currently employed as a hospitality worker “since 2006” and that she was now employed on a permanent full-time basis). She stated that this letter was not false after she agreed that she had come to Australia in 2008. It was then put to the wife that she was in Australia from 2008 until 2011 and that she could not have been working at the Company AE at that time, to which the wife agreed. It was then put to the wife that when the letter said that she was working at the Company AE, she knew that that was not true, to which the wife replied that the Company AE was between herself and her sister. The wife was asked again whether she accepted that she could not have been working at the Company AE in City AC, Country J, while she was living in Australia, to which the wife replied that the Company AE belonged to herself and her sister.
The wife stated that between 2007 and 2011 she had travelled to Country J and returned to Australia at least eight times. She had stayed in Country J at least more than a month. She stated that she has a passport showing this travel. Counsel for the husband called for that passport. The wife stated that her passport has expired and was taken back by the City K Department of Immigration when they issued her new passport, which was at home. The Court asked the wife when her new passport was issued, to which the wife stated that she did not remember.
The wife was asked whether she had produced any bank statements relating to her income from the Company AE, to which the wife replied in the negative.
The wife confirmed that she told the broker that she was receiving income of $64,615, on the basis of working full-time in Country J, and that she did that to persuade the broker that she was working full-time in Country J but in fact the wife was living here (in Australia).
The wife stated that she had produced mortgage loan account documents to the Court “from the beginning to now”.
The wife was asked whether she had told the broker that she had $30,000 in superannuation, to which the wife replied she did not remember.
The wife confirmed that she had told the broker that she had home contents valued at $35,000.
It was put to the wife that she had told the broker that she proposed to rent out the property (the property to be purchased), to which the wife denied.
It was put to the wife that she had provided a rental appraisal letter to the broker, to which the wife replied that she could not recall.
The wife’s attention was drawn to the rental appraisal letter. It was put to the wife that she had provided the rental appraisal letter to the bank to persuade them that she could cover the mortgage payments, to which the wife replied in the affirmative.
It was put to the wife that she had no intention of renting out the property, to which the wife replied, “we ourself live in”, “self-occupying”. She then told the Court that she had wanted to live in the house at the property and did not want to rent it out. It was then put to the wife that she had told the broker that she intended to rent it out to pay the mortgage, to which the wife denied stating that she did not say that. The Court then asked the wife why she provided the rental appraisal letter to the broker to which the wife replied, “in order to purchase the property, that’s why I provided it”. The Court then asked the wife why she provided the rental appraisal letter when she did not intend to rent it out and intended to live in it, to which the wife replied that she did not know, that when “we purchased this property, Mr Farina was with me – and it’s all in English. I did not understand.”
The wife agreed that it was her signature appearing on page 12 of the Westpac loan application dated January 2011. It was put to the wife that she was speaking to a Country J speaking mortgage broker, to which the wife replied that she did not recall. It was then put to the wife that she had given evidence earlier that the broker had spoken her language and she had understood everything she said, to which the wife replied that, “I did understand, but I don’t remember.” It was put to the wife that if it was in the loan application document she had given (the broker) that information, to which the wife replied, “So the information I provided at the time was accurate, but after so many years I’ve forgotten everything.”
The wife was cross-examined as to the property at City AC, Country J, listed at page 6 of the Westpac loan application. It was drawn to the wife’s attention that the loan application referred to the wife as being the 100% owner, to which the wife replied “No” and she then stated that this property belongs to her father.
It was put to the wife that the address for the Country J property referred to in paragraph 70 of her affidavit filed 17 February 2022 as being owned by her father and subsequently sold was not the same address that she gave to the Westpac bank broker in Australia. The wife replied, “No, it’s not the same.”
The Court referred the wife to page 6 of the Westpac loan application and the stated address of the property at City AC, Country J, and asked the wife whether she owned that property when she completed the Westpac loan application, to which the wife replied, “Yes I own it.”
A short time later the wife was cross-examined as to paragraph 27 of her affidavit filed 17 February 2022 (the Court observes that in paragraph 27 an address in Region AD was stated and being details of the wife’s parent’s property in Country J). The wife was asked whether it was the case that she forgot that she had told the Westpac loan broker a different address, to which the wife replied that she had told the broker two addresses. It was put to the wife that she did not provide to the bank details about her parent’s property referred to in paragraph 27 of her aforesaid affidavit, to which the wife replied that the bank did not require it.
It was put to the wife that she did tell the Westpac loan broker that she owned the property at City AC (being the property in City AC, Country J, referred to in the Westpac loan application), to which the wife replied that she did not recall what she had said to the Westpac loan broker.
The wife agreed that she had stated the detail of paragraph 27 of her aforesaid affidavit in the belief that the Court would accept that that was the address she had given the bank.
It was put to the wife that she had told the Westpac loan broker that she had no dependents which was not true, to which the wife replied that she did not remember. The wife agreed that she was supporting her son at the time. It was put to the wife that her statement to the bank that she had no dependents was not true, to which the wife replied that she did not know. The wife agreed that the Westpac loan broker had written down in the loan application “No. Dependents: 0”. It was again put to the wife that she had told that to the Westpac loan broker, to which the wife replied she could not recall. The wife agreed that her parents were dependent on her as well. It was then put to the wife that she did not tell the Westpac loan broker that her parents were dependent upon her, to which the wife replied, “Why should I tell them?”
It was put to the wife that the Westpac loan broker needed to know her expenses, to which the wife replied that she did not know.
The wife was cross-examined as to her driver’s licence.
The wife agreed that she did not have a car before she obtained her driver’s licence.
The wife agreed that she had told the Westpac loan broker in 2011 that she owned a car. The wife stated that she owned a Motor Vehicle 2 in 2011. It was put to the wife that she purchased her Motor Vehicle 2 in 2013, to which the wife replied that she could not recall. She agreed that when she purchased her Motor Vehicle 2 the husband had traded in his Motor Vehicle 1 car “in that purchase”. The wife stated that she had two cars before buying her Motor Vehicle 2 . When asked the identity of the two cars the wife stated that one of them “seems to be a Motor Vehicle 4” and she did not recall the other car. She stated that she did own a car or cars in 2011.
It was put to the wife that when she filled out the Westpac loan application she didn’t mention any loans that she had. In response, the wife stated that she could not remember and she did not know how to answer “your questions. Because of the 3 domestic incidents and then I have forgotten everything because I have suffered mentally and physically.” The question was repeated, to which the wife replied that she did not know and that she really has forgotten everything.
The wife was cross-examined as to paragraph 25 of her affidavit filed 17 February 2022. It was put to the wife that when she made the Westpac loan application she did not refer to the loan from her employer Ms AF (later, the wife told the court that she was employed by Ms AF as a hospitality worker). The wife stated that, “I have to repeat it again. So these things that I’ve said, that was before the domestic violence. So after the domestic violence, I forgotten everything.”
It was put to the wife that her evidence was that she borrowed money from her employer Ms AF, to which the wife agreed. It was then put to the wife that she said she did that in 2011, to which the wife replied that she could not remember the date.
The wife agreed that she had applied for a spousal visa shortly after the marriage in about 2010. She agreed that her spousal visa application was unsuccessful and that there were several reviews of that decision.
It was put to the wife that once the husband finally withdrew his sponsorship for her visa, she had no other avenue to get a spousal visa at that time except to claim domestic violence, to which the wife replied, “I don’t know.”
The wife stated that when she returned to live in the property at B Street, Suburb C in 2015 her son lived with her. He has not ever paid rent.
The wife was asked when Mr S, her brother-in-law, had moved into the property at B Street, Suburb C. The wife stated she did not remember. The wife was asked whether when Mr S moved into the property she charged him rent, to which the wife replied in the negative. She then stated that Mr S had lived there since 2015. The wife agreed that when she purchased the property the potential rent was $550 per week.
It was put to the wife that when she asked the Court to allow her to move back into the property she knew she was not going to be able to pay the mortgage, to which she answered in the affirmative.
The wife stated that Mr S has been paying off the mortgage on the property since she stopped working to date.
The wife stated that at the end of each financial year she filed a tax return with the Australian government. She said that she had provided those tax returns to the court. She stated she could not recall if she had provided copies of those tax returns to her legal representatives. She stated that the husband’s lawyers had not requested her tax returns.
The wife was asked whether she was present in Court on 19 June 2015, to which the wife replied that she did not remember. She stated she did not remember whether she consented to orders on 19 June 2015.
Order 9 of the Family Court of Australia’s orders of 19 June 2015 was then read to the wife, which provided, inter alia, that the wife be restrained by injunction from further encumbering the property at B Street, Suburb C. The wife was asked whether she knew what that meant, to which the wife replied that she was confused. When asked how she was confused, the wife stated that she didn’t know anything. (The Court observes that before the Family Court of Australia on 19 June 2015 Ms AU, solicitor appeared for the wife and Mr AV of counsel appeared for the husband).
The wife was asked whether she entered into a Deed with Mr S in April 2019, to which the wife replied that she did not remember. The wife was asked whether she advised Mr S of an injunction restraining her from further encumbering the property, to which the wife replied that she did not recall.
The wife was cross-examined in relation to her affidavit filed 27 March 2023 and the husband’s affidavit filed 4 May 2023.
The wife was asked to look at a photo on page 8 of 14 of the husband’s affidavit filed 4 May 2023 being a photo taken in May 2013. The wife agreed it was a photo of the lounge room at the property with the floor installed. The wife stated that Country J workers had applied wax to the floor and the wax was to be applied three times. These workers were paid after waxing the floor in 2013. She stated that these workers had finished their work in 4 days and the waxing they took one day. She stated that they waxed 3 times.
It was put to the wife that the husband had kept his receipts for the renovations in a box, to which the wife replied that she did not know. It was put to the wife that the husband was going to claim on his receipts for his tax return, to which the wife replied that she did not know anything and that she didn’t ask the husband about his affairs. It was then put to the wife that in paragraph 12 of her affidavit filed 27 March 2023 she had stated that the husband kept the receipts so that he could claim them as tax deductions through his work, to which the wife replied that that was what the husband told her. She stated that the husband would go to Hardware Store and he would say that to her. She stated that the husband told her that he needed receipts to do his tax returns.
The wife was cross-examined in relation to paragraph 13 of her affidavit filed 27 March 2023 which related to the husband’s affidavit filed 28 May 2021 at pages 23–25 (those pages set out photos and which related to, inter alia, an upstairs bathroom, and a spa bath). The wife was asked whether she had any receipts from the tilers of Country J descent who laid “the tiles”. The wife stated that that was the same receipt dated 2013 being Annexure A to her said affidavit.
The wife was cross-examined in relation to paragraph 27 of her affidavit filed 27 March 2023 relating to electrical work carried out at the property. The wife was asked whether on the basis of the contents of paragraph 27 she was stating that Mr V did not carry out the electrical work, to which the wife replied that she did not know.
The wife was cross-examined in relation to paragraph 40 of her affidavit filed 17 February 2022 (which stated that the husband assisted the wife with driving her to work until she got her license in or about late 2012, possibly early 2013). The wife confirmed that she had got her first Provisional Driver’s Licence in 2012. The wife’s attention was then drawn to a copy photograph of her Provisional Driver’s Licence with an expiry date of 2011 and referred to on page 13 of the Westpac loan application. The wife asserted that this was an authentic copy photograph of that Licence, and stated that she did not remember the date she got her provisional license.
The wife was cross-examined in relation to paragraph 29 of her affidavit filed 17 February 2022. Paragraph 29 was read to her. The wife stated that her sister’s business was a Company AE. It was then put to the wife that when she told the Department of Immigration that she worked in a Company AE that that was a lie, to which the wife denied.
The wife was asked when she disposed of her superannuation, to which the wife replied that she cannot remember and she does not know.
The wife disagreed that her Deed with Mr S was a sham.
Husband’s lay witnesses (Mr U, Mr T and Mr V)
The Court does not propose to set out the affidavits and oral evidence of these lay witnesses in their entirety.
The Court accepts the evidence of these lay witnesses. They were honest witnesses who sought to give responsive answers to questions asked of them.
Mr T, manager, had stated that he had known the husband since 2010. He had observed the husband renovating the bathroom at the property. He had been told by the husband that he had renovated other parts of the house at the property.
Mr V had known the husband since the late 1990s as a customer of his home wares business. The husband had helped him with his renovations. He helped the parties with renovating the property at B Street, Suburb C. He observed the husband doing renovation work at the property including plumbing work. The husband had asked him to help him out with certain electrical wiring at the property and which he carried out. He also assisted the husband with other renovation related work. He stated that due to the husband’s help for him at his property he was happy to help the husband out. He stated that he used to be a licensed electrician and that Mr AM had an electrician’s licence and he worked under him. He stated that he was not paid for the work he carried out at the property at B Street, Suburb C stating that the husband had helped him and he helped the husband.
Mr U, tradesman, stated that he had helped and witnessed the husband carry out certain renovation work at the property at B Street, Suburb C in 2013. He stated that he had gone to the property at B Street, Suburb C more than once. In relation to the husband’s renovation work to the kitchen he stated that he saw it in various stages (of renovation completion) and had seen the end product. At the property he had seen the husband with a nail bag on.
Mr W, expert builder assessor
This witness had provided a report dated July 2015 at the request of the husband’s solicitors. His report was annexed to his affidavit filed 7 March 2022. The expert had been instructed to address the following issue:
“Having regard to works which have been performed on the subject premises known as [B Street, Suburb C], NSW, please identify the value of such works at the date of inspection. In your report please separate and describe the works and provide any schedule which in your professional opinion is required to assist the Court to understand your opinion, such as a Schedule.”
Under the heading, “Instructions”, in the witness’s report, he had stated that his instructions were to provide the following services: inspect the property, provide a scope as to the works undertaken by the husband, and provide a reasonable cost for the works undertaken including the supply and fixing of the building materials.
The witness was cross-examined.
The witness stated that he asked the husband, at the site inspection, what renovation works had been undertaken at the property. He was showed by the husband the renovation works. The witness then carried out his own inspection and took measurements and the like. He stated that the husband had told him that he had paid for all materials referred to in his report. He was not shown any receipts for the purchase of materials by the husband. He confirmed that the renovation works referred to in his report were uniformly of a high standard.
The witness stated that the husband had not told him at the site inspection of his invoice offsetting arrangements with third parties in relation to the supply of materials by those third parties to him and the renovations. He stated that even if the husband had told him about such offsetting arrangements there was still an expense, a real expense was still there for the materials. He stated that he had assessed the cost to the husband of such materials. He stated that his report covered both the cost of labour and materials.
The Court found Mr W to be an impressive and honest witness who gave responsive answers to the questions asked of him in cross examination. The Court accepts the evidence of Mr W.
Evidence of Mr S
The Court does not propose to set out the entirety of Mr S’s affidavit filed 27 October 2022 or his oral evidence.
The witness in his affidavit had stated that he had sold his property and moved into the wife’s property. In his affidavit he had stated that with the proceeds of sale (of his property) he had paid for the mortgage over the property (at B Street, Suburb C). In oral evidence he stated that he had sold his property in 2018. He stated that he had put the proceeds of sale of his property into his bank account.
The witness in his affidavit stated that he has loaned the wife about $280,000 to date.
The witness in his affidavit stated that he and the wife have discussed how the wife will repay him. He stated that at first instance, the wife will have to repay him when the wife commences working again after Court proceedings are over and she is ready to return to work. He stated that the wife will pay him by instalments and such instalments will depend on how much she is earning.
The witness in his affidavit stated that if for some reason the wife’s property must be sold, he will seek to be paid from the proceeds of sale and he will not remove the caveat otherwise.
In oral evidence, the witness confirmed that he has known the wife for about 12 years, and that he is married to the wife’s sister. He confirmed that he lives at the property at B Street, Suburb C, and that he is retired.
The witness stated that his wife, the wife’s sister, usually lives in Australia but she is now not in Australia. When his wife is in Australia she stays with him at the property.
The witness stated that the wife had told him in about 2014 or 2015 that she had stopped working and he believed her.
The witness stated that over two to three years prior to 2018 he gave to the wife $120,000 to $150,000 so that she could pay her mortgage and live.
The witness stated that he had paid rent to the wife since mid 2018.
LEGAL PRINCIPLES
In Lotta & Lotta [2017] FamCA 50 Foster J stated:
281The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford (2012) 247 CLR 108 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman (2014) FLC 93–592 and Scott & Danton [2014] FamCAFC 203.
282The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
283Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
284There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.
285In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
286In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to same. Here the wife seeks an order for adjustment of property and the husband contends that there should be no such adjustment.
287It is thus important to ascertain the present property and resources of the parties so as to facilitate a consideration of the s 79(2) question.
288In some circumstances it is not possible to determine whether it is just and equitable to make adjustment orders as to the parties’ present property rights without a consideration of s 79 (4) matters.
289Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). The Court must then consider s 79(4)(d) to (g) in particular the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).
290The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell (1999) FLC 92–877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.
BALANCE SHEET
The balance sheet of the parties is now set out:
BALANCE SHEET
Ownership
Description
Applicant’s value
Respondent’s value
Assets
1
W
B Street, Suburb C
$988,000
$988,000
2
H
M Street, Suburb N
$385,000
$385,000
3
W
Motor Vehicle 2
$18,500
$18,500
4
H
Truck
$6,000
$6,000
5
H
NAB Classic Banking Account #...95
Nominal
Nominal
6
H
Household contents
$1,000
$1,000
7
W
Household contents
$35,000
$5,000
8
W
Property in Country J
$500,000
Total
$1,933,500
$1,403,500
Addbacks
9
Nil
$
$
Total
$0
$0
Liabilities
10
W
Mortgage for B Street, Suburb C
$345,000
$345,000
11
W
Loan from Mr S
$0
$280,000
12
W
Loan from various friends
$0
$130,000
13
H
Mortgage for M Street, Suburb N
$210,000
$210,000
14
H
ATO Tax Liability
$200,000
$50,000
15
H
Company P
· Store Card
· NAB
· Telstra
· Company R
$20,000
$20,000
16
H
Statement of Claim – debt (L Law Firm Barristers & Solicitors Lawyers)
$131,919
$131,919
17
H
Child Support Agency - arrears
$20,000
$20,000
Total
$926,919
$1,186,919
Net Total Assets
Total
$1,006,581
$1,006,581
As to item 7, the wife’s household contents, the wife’s Financial Statement filed 17 February 2022 asserts $5,000, and noting that there was no significant cross examination on this issue, $5,000 will be inserted in the balance sheet.
As to item 8, the wife’s alleged property in Country J, $500,000, on reflection, and not without some significant doubt, the Court is not persuaded on the balance of probabilities that the wife has previously or presently owns a real estate property in Country J with the address AP Street, City AC, Country J (such address stated in the Westpac loan application) having regard to, inter alia:
(a)the wife’s oral evidence (albeit quite inconsistent with other oral evidence given by her) that her father used to own the above property in Country J, and that the above property’s correct numbering was AP Street;
(b)paragraph 27 and 70 of the wife’s affidavit filed 17 February 2022, and annexures F and G to that affidavit, asserting, inter alia, that the wife’s parents or father used to own a property in Country J at AW Street, Region AD, Country J, and that that property was sold;
(c)the above Country J property address referred to in the Westpac loan application having some similar address characteristics to the above Country J property in b) above: both properties are on the same level and street number, and both properties are in City AC, Country J; and
(d)the wife having borrowed monies from Mr S, $273,155, and had entered into a Deed of Loan with him in April 2019, and to which a caveat has been entered over the property, providing, inter alia, for repayment of that loan with interest (and see below in relation to this loan from Mr G).
Item 8 shall be removed from the balance sheet.
As to item 11, the loan from Mr S to the wife, $280,000, the husband contends that this alleged debt should not remain in the balance sheet as a matrimonial debt.
In the wife’s affidavit filed 17 February 2022, she asserts that she is currently unemployed, she has not worked since mid 2015, and as she has no income, her brother-in-law, Mr S has been assisting her financially “with paying the mortgage, legal fees and living expenses. Mr S and I entered into a Deed of Agreement in April 2019. At the time I owed Mr S about $273,000…. As a result of the Deed, Mr S has placed a Caveat on my property…. Along with Mr S’s caveat on my property, there are also two more caveats on my property. One is from my former solicitors AX Lawyers. I owed them $80,000 but this has been paid.”
It was put to the wife in cross-examination that the alleged loan was a sham to which she denied. It was not put to Mr S in cross-examination that the loan was a sham.
Again, Mr S gave oral evidence. He sought to give responsive answers to questions asked of him.
The Court finds that:
(a)Beginning in about mid 2015 when the wife ceased working (as a hospitality worker; she was aged 42 years at this time) and up to at least the date of Mr S’s affidavit filed 27 October 2022, Mr S loaned monies to the wife. These monies were used by the wife to pay the mortgage loan repayments for the property, to pay legal fees, and to meet her living expenses;
(b)Mr S sold his own property in 2018 and with his proceeds of sale he began to make direct payments from his bank account to the wife’s Westpac home loan bank account in payment of the wife’s home loan with Westpac;
(c)The totality of his financial assistance to the wife, as referred to in a) and b) above, up to the date of Mr S and the wife entering into a Deed of Loan being April 2019, was about $273,155 (being a figure referred to in the Deed of Loan);
(d)Mr S continued to make direct payments from his bank account to the wife’s Westpac home loan bank account in payment of the wife’s home loan with Westpac; Mr S made discrete payments in this regard on 17 June 2022, $2,350, on 15 July 2022, $2,350, and on 17 August 2022, $2,400 (these 3 payments totalling $7,100);
(e)The wife’s bank statements from Westpac from 2015 to August 2022 reveal significant deposits into her bank account for mortgage repayments which are consistent with Mr S having assisted the wife financially in meeting her mortgage loan repayments over this period as asserted by him;
(f)The wife, again, utilised monies loaned from Mr S to pay legal fees. Her former lawyers, AX Lawyers, were owed $80,000 by the wife for their fees and these fees were paid. The Court infers that the wife utilised monies loaned from Mr S to pay these fees of $80,000 because the wife has not worked since mid 2015, these proceedings were commenced in November 2014, the wife’s initial Response was filed in late March 2015, and these lawyers ceased acting for her in about September 2016 (see the Notice of Withdrawal as Lawyer of AX Lawyers filed 14 October 2016). The wife does not allege an alternative source of monies to pay these legal fees other than Mr S;
(g)The wife probably has a legally enforceable obligation to repay Mr S at least $280,000 pursuant to the above Deed of Loan, however of this sum the amount of $80,000 should not be reasonably allowed as having been likely borrowed by the wife from Mr S to pay her legal fees owed to AX Lawyers.
Accordingly, the sum of $200,000 only shall remain in the balance sheet.
As to item 12, the wife’s loans from various friends, $130,000, this item shall be removed from the balance sheet, by reason of the wife failing to adduce any admissible and relevant evidence from such third parties to establish the existence of such loans. In this context there was no affidavits from any of these third parties supporting the existence of the alleged loans.
As to item 14, the husband’s asserted ATO tax liability, $200,000, this item shall be removed from the balance sheet. By reference to Exhibit A, the husband’s income tax statement of account with the ATO, the husband’s tax debt as at marriage was about $10,000, and as at separation in early November 2014 the tax debt was about the same. The husband conceded in submissions that the husband’s tax debt of about $200,000 was likely significantly accumulated by the husband post separation.
As to item 15, the husband conceded that the Company P debt of $20,000 was accumulated post separation and such item will be removed from the balance sheet.
As to item 16, the husband’s legal debt, this was conceded by the husband not to be a matrimonial debt and it shall be removed from the balance sheet.
As to item 17, Child Support Agency arrears owed by the husband, $20,000, this item shall be deleted from the balance sheet being irrelevant to these proceedings in light of the parties having had no children together.
The Court does not accept the wife’s submissions that an asset by asset approach is preferred in these property proceedings and it will adopt a global approach.
The final balance sheet accordingly will be as follows:
BALANCE SHEET
Item
Description
Value
Assets
1
B Street, Suburb C
$988,000
2
M Street, Suburb N
$385,000
3
Motor Vehicle 2
$18,500
4
Truck
$6,000
5
NAB Classic Banking Account #...95
Nominal
6
Household contents (H)
$1,000
7
Household contents (W)
$5,000
Total
$1,403,500
Liabilities
8
Mortgage for B Street, Suburb C
$345,000
9
Loan from Mr S
$200,000
10
Mortgage for M Street, Suburb N
$210,000
Total
$755,000
Net Total Assets
Total
$648,500
From the above, it can be seen that the parties’ assets are $1,403,500, their liabilities are $755,000, and thus their net assets are $648,500.
SECTION 79(2) OF THE ACT
The Court is satisfied that it is just and equitable in this case to alter the property interests of the parties in light of the breakdown of their relationship, the fact that they will no longer have the joint use and enjoyment of their property, and the fact that the continuance of the current legal ownership of their property would not afford them justice and equity. The Court does not accept the wife’s contentions that it would not be just and equitable in this case to alter the property interests of the parties.
CONTRIBUTIONS
The parties’ relationship commenced in 2010 and continued until about November 2014.
At marriage, the husband owned a property at M Street, Suburb N with an equity of about $50,000. He also had a Motor Vehicle 1, a Truck (see item 4 in the final balance sheet), about $100,000 in credit card debts, and a tax debt to the ATO of about $10,000.
At marriage, the wife had cash savings of about $141,000 (by reference to objective bank records and other information provided by the wife to Westpac in support of her Westpac loan application in 2011).
In about 2011 the property at B Street, Suburb C was purchased in the name of the wife for $550,000, with the wife personally contributing $110,000 towards the purchase price, and taking out a mortgage loan with Westpac in the sum of $440,000 to cover the balance of purchase price and stamp duty. Thereafter, and to separation, the wife paid the mortgage loan repayments to Westpac.
The Court finds that the parties during their relationship contributed approximately equally as homemakers including the carrying out of the household chores.
The Court finds that the parties during their relationship contributed approximately equally to day to day household expenses such as food. The husband’s bank records are consistent this finding (e.g. payments to Store AY).
During the parties’ relationship each party contributed towards the payment of utilities for the property at B Street, Suburb C.
During the parties’ relationship the husband paid the mortgage loan repayments on his property at M Street, Suburb N with no financial assistance from the wife.
During the parties’ relationship and up to 2015 when the husband vacated the property, renovation works were carried out at the property by the husband and he paid for, or effectively paid for, the materials for the renovation works, except for one payment of $5,500 paid by the wife in 2013 for installation of flooring.
The Court accepts the husband’s evidence in relation to his renovation works during the marriage, including his payment of materials for the renovation works through an offsetting procedure (reduction of the husband’s invoices for building work conducted by him for third parties in exchange for the supply of materials by such third parties to him) that he conducted with third parties (Company AN, Company AK, Company AL and another company), and through direct payments to e.g. a hardware store for materials. In Annexure B to his affidavit filed 27 October 2022 (husband’s NAB bank statements from 2011 to February 2014) there are numerous credit entries relating to payments from Company AL and Company AK to the husband (and at least one credit entry relating to a payment from Company AN to the husband) which are consistent with his evidence, and debit entries relating to direct materials purchases by him from e.g. a hardware store. The Court accepts the husband’s evidence relating to his inability to locate his previously held documentation relating to the purchase of materials for the renovation works.
The wife had submitted that the husband’s affidavit evidence being paragraph 26 (opening line) and paragraph 32 (on the first line) of his affidavit filed 28 May 2021 that he had paid for or purchased all materials for the renovations should be read literally i.e. that the husband had paid a materials supplier directly for the cost of the materials which is contrary to the effective and indirect manner in which the husband asserts that he paid for much of the materials. The Court does not accept this submission. The Court accepts and refers to his oral evidence relating to the offsetting procedure (see above), including his affidavit evidence filed 27 October 2022, paragraph 37, that mostly he traded favours with other work mates, and his affidavit evidence filed 4 May 2023 relating to the offsetting procedure (e.g. paragraph 9). The evidence of Mr V was also consistent with this evidence.
And again, the Court accepts the expert evidence of Mr W, building assessor, to the effect that even if the husband had told him about such offsetting arrangements there was still a real expense there for the materials (in such offsetting arrangements).
The Court does not accept the wife’s allegations that she paid for almost all the materials for the renovation works at the property, except as to one payment of $5,500 by the wife in respect to which the wife produced a receipt, and the Court takes this payment by the wife into account. Consistent with the Court’s findings above relating to the husband’s renovation works, the Court does not accept the wife’s allegations that she paid for tradesmen and labourers to carry out most of the renovation works.
Accepting the expert evidence of Mr W, building assessor, a reasonable cost to construct the renovation works, including materials, was about $246,540. Accordingly, it can be seen that the husband’s renovation works, through the provision of labour and materials, were contributions of substance towards the property at B Street, Suburb C.
The Court takes into account the wife’s payment of about $20,000 to the husband in reduction of his credit card debt. The Court also takes into account the effective contribution by the husband of about $20,000 to the purchase of the wife’s Motor Vehicle 2 through the husband trading in his Motor Vehicle 1.
The Court does not accept the wife’s allegations (paragraph 32 of her affidavit filed 17 February 22) that she paid on the husband’s behalf the mortgage repayments on the husband’s property at M Street, Suburb N while the tenants refused to pay “for two years 2011 – 2013” for a total alleged estimated payment of $32,400. From the husband’s NAB bank records (Annexure B to his affidavit filed 27 October 2022), his tenants “final rental payment” was on in mid 2012 with those bank records only revealing two discrete cash deposits thereafter (a $2,000 cash deposit in mid 2012 in relation to which the husband had stated that this receipt was from the sale of a motorbike which the Court accepts, and a cash deposit of $600 in early 2013) and up until the last bank record in early February 2014 which is consistent with the husband’s affidavit evidence that although he had done work for friends who paid cash for materials he rarely received cash payments for work. And further, these bank records revealed that the husband, despite the cessation of rental payments from mid 2012, was comfortably able to meet his mortgage repayments on his M Street, Suburb N property up to early February 2014 noting that he was receiving, in particular, business income.
The Court does not accept the wife’s contention that the husband during the relationship was likely repaying extensive credit card debt which effectively prevented him from contributing towards the M Street, Suburb N mortgage loan, household expenses, or building materials for the renovations. In this context the wife pointed to, inter alia, the husband’s admitted credit card debt at the start of the relationship and the much lesser credit card debt stated in the husband’s Financial Statement filed 28 May 2021. However, the Court accepts the husband’s evidence (e.g. his evidence relating to the offsetting procedure for payment of materials for the renovations) and contentions in answer to this issue. There was no discrete objective evidence before the Court as to the extent of the husband’s credit card debt as at separation nor objective evidence as to the extent to which the husband reduced his credit card debt post separation. The husband’s ATO debt was about $10,000 at marriage and was about that same figure at separation. And again, and relevantly, the husband’s bank records are consistent with the husband’s contentions that during the relationship he was personally meeting his financial obligations including the M Street, Suburb N mortgage, household expenses, credit card payments, and payment of materials for the renovations (including through the offsetting procedure).
The Court does not accept that either party made such a contribution towards the care of the other party’s child or children that would justify a finding of a relevant contribution in this regard pursuant to the principles in Robb & Robb (1995) FLC 92-555.
Post separation to date, separation occurring on 3 November 2014, the wife paid or caused to be paid the mortgage loan repayments on the property at B Street, Suburb C to Westpac. The wife did not work after mid 2015 and she borrowed monies from Mr S to enable, inter alia, the mortgage repayments to be made on the property. The husband moved out of the property at B Street, Suburb C, NSW, in 2015, pursuant to a Court Order, and the wife and her son moved back in to live there, and they have remained living there to date, which the Court takes into account.
In about 2018 and to date the wife’s sister and brother in law Mr S have lived at the property at B Street, Suburb C (albeit at trial date the wife’s sister was in Country J). Mr S has been paying rent to the wife since 2018.
The Court finds that from separation to 2015 the husband maintained the property, continued to renovate it (with the Court inferring that Mr W had taken such post separation renovations into account in his conclusions), and paid for utilities. Post mid 2015 the wife has paid the utilities for the property.
Post separation to date, the husband paid the mortgage loan repayments on the property at M Street, Suburb N.
The Court acknowledges that it is likely that both the property at B Street, Suburb C and M Street, Suburb N have increased in value since separation and which is taken into account, however there is no discrete evidence as to their values at separation date in November 2014.
The wife contended that the wife’s contributions should be assessed at 95% at separation and 99% at trial date. The husband contended that the parties’ contributions should be assessed as equal.
Taking into account the above matters, and viewing the parties’ overall contributions holistically, the Court assesses the parties’ contributions to the net assets of $648,500 to be 55% to the wife and 45% to the husband; this results in a disparity between the parties of $64,850.
SECTION 75 (2) OF THE ACT
The husband is 61 years, and the wife 50 years. The parties’ relationship spanned the period from marriage, 2010, to separation in November 2014.
The Court is not persuaded on the balance of probabilities that the husband perpetrated domestic/family violence against the wife as alleged by her. The husband denied such allegations. There was no detailed or significant cross-examination of the husband in relation to the wife’s various allegations of domestic/family violence. And again, the wife was in many respects an unsatisfactory witness and the court refers to its credit discussions earlier in these Reasons. The Court rejects the wife’s Kennon claim.
The Court is not persuaded on the balance of probabilities that the wife perpetrated significant domestic/family violence against the husband as alleged by him.
The wife has not worked in employment since 2015. She worked as a hospitality worker from about 2009 to 2015. In 2015 she was aged 42 years. The Court observed the wife at close hand in the witness box as she gave her oral evidence; she speaks Country J and the Court would assess that her English speaking skills are probably well below average but she would appear to understand some basic English spoken word. Her health would appear to be satisfactory; the wife adduced no health professional evidence relating to her health including mental health and in relation to her work capacity.
The husband continues to work as a tradesman full time operating his own business, and the Court would assess he has a reasonable earning capacity whilst noting his age and occupation. The husband suffers from a medical condition for which he has ingested medication. He has had surgery for a medical condition. However he adduces no significant health professional evidence relating to his health issues (including mental health) or work capacity.
The husband sought a 2–3% adjustment under s75(2). The wife sought no adjustment for herself and she submitted that no adjustment should be made in favour of the husband.
The Court, taking into account the above matters, determines that there should be no adjustment in favour of either party under s75(2).
JUSTICE AND EQUITY
Pursuant to the Court’s contribution assessment, the husband should be left with assets representing, in value, 45% of the net assets, being $291,825 (45% of $648,500).
The wife will be entitled to 55% of the net assets, a sum of $356,675 (55% of $648,500).
In view of the Court’s contribution findings, and the parties’ entitlements referred to above, noting that the wife is not working and has not worked since 2015, the property may have to be sold. Nevertheless, the Court will afford the wife an opportunity to retain the property.
Should the wife retain the property (and her car, household contents, and remain liable for the final balance sheet debt to Mr S of $200,000) and the husband retain:
(a)The M Street, Suburb N property: $385,000;
(b)His truck: $6,000;
(c)His household contents: $1,000;
totalling $392,000,
Less the M Street, Suburb N mortgage debt, $210,000,
Leaving net $182,000,
then the wife will need to pay the husband the sum of $109,825 ($291,825 less $182,000). The wife should be given 3 months to pay this sum to the husband, failing which the property should be sold.
The Court now turns to what should occur if the property is sold.
Should the wife retain:
(a)Her Motor Vehicle 2: $18,500;
(b)Her household contents: $5,000,
Totalling $23,500,
And remain liable for the final balance sheet debt to Mr S, $200,000,
Leaving net -$176,500,
then the wife will need to receive cash of $533,175 (being $356,675 plus $176,500). Such cash can be paid to the wife from the net proceeds of sale of the property. From such cash payment the wife can, inter alia, pay the debt to Mr S, $200,000, leaving her net cash of $333,175.
Should the husband retain:
(a)The M Street, Suburb N property: $385,000;
(b)His truck: $6,000;
(c)His household contents: $1,000;
totalling $392,000,
Less the M Street, Suburb N mortgage debt, $210,000,
Leaving net $182,000,
then the husband will need to receive cash of $109,825 (being $291,825 less $182,000). Such cash can be paid from the net sale proceeds of the property. With such sum the husband can, inter alia, reduce his debt which did not enter the final balance sheet.
The Court is of the view that its proposed property adjustment orders will represent a just and equitable property outcome between the parties.
The Court makes Orders accordingly.
I certify that the preceding two hundred and thirty-nine (239) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 1 June 2023
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