Farmer and Panshin
[2013] FMCAfam 188
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FARMER & PANSHIN | [2013] FMCAfam 188 |
| FAMILY LAW – Property – de facto – partly undefended hearing – adjournment applications – assess contribution and future needs. |
| Family Law Act 1975, ss.4AA, 79A, 90SF, 90SM, 90SN Federal Magistrates Court Rules, rr.13.03A, 13.03B, 13.03C, 16.05 |
| Angelini & Angelini [2011] FamCAFC 190 Aon Risk Services Australia Limited v ANU (2009) 239 CLR 175 Burke & Burke (1993) FLC 92-356 Hauff & Hauff (1986) FLC 91-747 Kennon & Kennon (1997) FLC 92-757 Farmer & Panshin [2012] FMCAfam 691 Panshin & Farmer [2012] FMCAfam 1107 Panshin & Farmer [2012] FamCAFC 197 Panshin & Farmer [2013] FMCAfam 96 Panshin & Farmer [2013] FamCAFC 16 Zane & Allen [2008] Fam CAFC 115 |
| Applicant: | MS FARMER |
| Respondent: | MS PANSHIN |
| File Number: | SYC 2252 of 2011 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 5 & 6 July 2012 and 15 February 2013 |
| Date of Last Submission: | 15 February 2013 |
| Delivered at: | Sydney |
| Delivered on: | 7 March 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Batey |
| Solicitors for the Applicant: | Stidwill Solicitors |
| Mr Ang on the first two days of hearing |
| No appearance by the Respondent on the third day of hearing |
ORDERS
Subject to order 2 below, the applicant and respondent to forthwith do all things necessary to distribute the sale proceeds of the property at Property C as follows:
(a)To the applicant $50,506.60;
(b)To the respondent $76,993.40;
(c)To the applicant 39.6% of the amount then remaining, if any;
(d)To the respondent, the balance.
Order 1 is stayed for a period of seven (7) days to enable the respondent to bring an application under Federal Magistrate Court Rules r.16.05(2) if she so desires.
Each party otherwise retains sole ownership of all other property in their possession or control including their respective superannuation entitlements.
Any application for costs arising out of these proceedings proceed by way of written submissions not exceeding 750 words, with the applicant for costs to file and serve the same within 21 days, and the respondent within 21 days thereafter.
In the event that either party refuses or neglects to execute any deed or instrument required to give effect to these Orders a Registrar of the Federal Magistrates Court in Sydney is hereby appointed pursuant to Section 106A to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
IT IS NOTED that publication of this judgment under the pseudonym Farmer & Panshin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2252 of 2011
| MS FARMER |
Applicant
And
| MS PANSHIN |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application for alteration of property interests pursuant to s.90SM of the Family Law Act. The applicant is 35 years old and is an [occupation omitted]. The respondent is 42 years old and describes herself as a [occupation omitted]. They were in a same-sex de facto relationship which ended in December 2010. One of the issues I need to decide is when the relationship commenced. The respondent contends that it was in 2005 and the applicant says it was in 2007. The evidence creates the impression that it was a very intense relationship, brief as it was, and that the intensity of the relationship was matched if not exceeded by the intensity of the separation and subsequent litigation.
Both parties had property at cohabitation. The applicant had superannuation, and the respondent had superannuation and an interest in real estate. One of the issues I need to decide is precisely what the assets were at cohabitation.
They commenced living in a property at [B], then moved to another property at [B], then sold that to purchase what became their home at [C].
There is a dispute about what contributions they made and how this should be assessed under s.90SM. There is also a dispute about whether and if so what future needs arise pursuant to s.90SF and how this should be assessed.
The matter proceeded to a final hearing on an undefended basis. I declined to further adjourn the hearing of the matter. The reasons for both decisions are set out below.
By the time of the final, undefended, hearing the applicant sought orders for the division of the net assets as to 65% to her. The Response filed on 4 July 2011 seeks orders that the respondent pay the applicant $40,000 in return for a transfer of the [C] property, and that there be a super split of the applicant’s superannuation as to $76,000 in favour of the respondent.
The respondent represented herself at times, was represented by several different solicitors and counsel at other times, and appeared to draft many of the documents relied on by her at the hearing, even though represented at the time. It is by no means clear that the orders sought in the Response continue to be orders proposed by the respondent, even allowing for the fact of the sale of the home.
Procedural history
A detailed procedural history is needed in order to understand the orders I make in context.
The application first came before me on 5 July 2011. The applicant was represented by Ms Stidwill, the respondent by Ms Meredith. The parties were directed to attend a conciliation conference. Registrar Campbell conducted this conference on 23 September 2011. The matter did not settle.
The matter came before me on 25 October 2011. I set the matter down for hearing before me on 5 and 6 July 2012 and made various directions for trial including an order under Part 15 Family Law Rules for the appointment of a single joint expert valuer. The respondent was represented by Ms Pidgeon on this day.
On 31 May 2012 the matter returned before me at the applicant’s request due to problems with valuation. I made an order appointing
Mr B as single expert valuer, settled the letter of instructions, made directions as to who should be present at the time of the valuation inspection, and restrained the respondent from communicating with the valuer, and compelling her to cooperate with him. On this occasion the respondent was represented by Ms Wood.
On 18 June 2012 the issue before me was subpoenae and further problems with the valuation. The respondent was represented by
Ms McKellar. Orders were made against the respondent relating to the inspection of the property by Mr B and payment of his fees. Moreover a subpoena the respondent issued to “Ms A, Daughter of Justice A … [address omitted]” to attend court to give evidence, was withdrawn, presumably after someone had pointed out to the respondent that she had confused the Justice A of the Family Court with Justice A of the Supreme Court of NSW.
The hearing commenced on 5 and 6 July 2012. This will be discussed below. Mr Ang of counsel appeared for the respondent on a direct brief.
On 10 July 2012 I made interim orders for the sale of the [C] property and ancillary orders. My reasons for judgment were published as [2012] FMCAfam 691.
On 5 October 2012 I dismissed the respondent’s stay application pending her appeal to the Full Court. My reasons for judgment were published as [2012] FMCAfam 1107. I further restrained the respondent from approaching the property, and permitted the applicant to sell the property for not less than $825,000, but stayed this order until 17 October 2012.
On 17 October 2012, in my absence, Federal Magistrate Kemp extended the stay order until 14 November 2012.
On 14 November 2012 Coleman J sitting as the Full Court dismissed the respondent’s application for leave to appeal against my orders made 10 July 2012 and 8 October 2012. This is reported as [2012] FamCAFC 197.
On 22 January 2013, at the respondent’s request, I made orders for urgent property funds access, thus enabling the release of $20,000 to each of the parties from the proceeds of sale of the [C] property. My reasons for judgment were published as [2013] FMCAfam 96.
On 31 January 2013 the respondent filed an application for Special Leave to appeal to the High Court.
On 1 February 2013 Justice Ainslie-Wallace sitting as the Full Court dismissed an application by the respondent to stay the impending settlement of the sale of the home. These reasons were published as [2013] FamCAFC 16.
On 11 February 2013, at the respondent’s request, I listed the matter to consider what I apprehended was her adjournment application. She did not attend. I made directions for the continuation of the part-heard final hearing on 15 February 2013.
The matter then came before me on 15 February 2013.
The Evidence
I had regard to the following affidavits filed by each of the parties during the course of this litigation:
Applicant’s Affidavits
12 February 2013, 19 September 2012 and 13 April 2011.
Other Affidavits filed on behalf of the Applicant
Affidavits of Jayne Louise Stidwill filed 22 October 2012, 18 June 2012 and 18 May 2012
Respondent’s Affidavits
14 January 2013, 17 October 2012, 19 September 2012, 31 May 2012, 4 August 2011, 4 July 2011 and 2 July 2012.
Other Affidavits filed on behalf of the Respondent
Affidavit of Mr G filed 19 September 2012.
Both the applicant and the respondent gave evidence over 5 and 6 July 2012 and were cross-examined by Mr Ang of counsel, who then appeared for the respondent. The respondent was cross-examined by Mr Batey for the applicant.
Evidentiary ruling
On the first day of the hearing, 5 July 2012, most of the day was taken up either with objections to the respondent’s material, or adjournments necessitated by the respondent’s absence. Substantial parts of the respondent’s affidavits were struck out as being irrelevant. The respondent sought to rely on her evidence of the violence and abuse she alleged was perpetrated by the applicant and which, it was contended, rendered her contribution more arduous in accordance with the Full Court’s decision in Kennon & Kennon (1997) FLC 92-757 at p.84,294.
Indeed that is the only possible basis on which this evidence could have been relevant. Mr Batey’s objection was that in the absence of any evidence that demonstrated that any such violence (which was denied) had a discernible impact on the contribution of the respondent, the evidence objected to could not be relevant. Quite apart from the fact that counsel for the respondent was not familiar with the Full Court’s decision in Kennon, when given the opportunity he could not point me to any evidence of the respondent asserting that any violence that she suffered in fact had a discernible impact on the respondent’s contribution. In the circumstances, and mindful of the Full Court’s comments about “floodgates”, “exceptional cases” and “tactical weapons…for personal attacks”, I ruled this material irrelevant and inadmissible.
Adjournment application
On 5 February 2013 the respondent emailed my Associate. This email is reproduced in full below:
Subject: Transfer hearing 15.2.2013 due to lack of disclosure . Procedural fairness
From: Ms Panshin
To: [email protected], [email protected], [email protected], Mr G, Ms Farmer, [personal email addresses omitted]
To the federal magistrate Altobelli,
As you know I have not the necessary disclosure to do my final documents.
1. I have done notices to produce and asked 3 times over 1-2 months for the lawyer Stidwill and other party to disclose.
2. 14.1.2013 I requested these were ordered as fair reasonable disclosure requirements.
3. 22.1.2013 you were provided hard copies of the soft copies you has been witness to regarding the critical disclosures to ms Farmer and Stidwill who refuse to disclose
4. 22.1.2013 you told me to subpeona them! When you knew and were advised I did not have the money to subpeona them and you in reasonable fairness had the power to release and order the information.
5. 1.2.2013 ms Farmer was ordered to " forthwidth" release monies to me that day. which is and was easy to do - that day a cash cheque or direct transfer from the trust or deposit check ( unless she spent it on a new property- do you know? Probably)
6. When I questioned you in mention the other party failed to show you said " forth width" mean " that day - immediately you proclaimed.
7. An appeal has been lodged on the case application as disclosures were not provided and so many new laws and constitutional rights of mine frighteningly broken.
8. I have lodged in the high court as being in your court is like being raped off all Australia's beautiful laws as you faclilate my ex's abuse in your retaliation for being reported for improper conduct to the attorney general. Sadly I kept trying with you but your bias is frightening and your court demoralizing unconscionably of any common deceny.
Please confirm a new hearing date to allow the other party to disclose required critical information to do final orders. You savagely cristized unjustly me last time for my balance sheet ignoring the 30 issues with the other party that was done by a lawyer. Vs me.
To show procedural fairness please transfers the hearing as this has again negatively impacted on my rights you ignore and allow the other party to abuse.
As you know i have no money haven't been paid my monies owed by ms Farmer when the house was mainly my work and Money and as there's no time for subpeonas it futile. As is getting it on the day.
I note It's 5 days and no forthwidth payment. I asked you to do something and you have ignored this.
I await the transfer in procedural fairness
Yours sincerely,
Ms Panshin
Sent from my iPhone(Errors as per the original)
This email was drawn to my attention to decide how to respond. I interpreted the email as primarily an application to adjourn the hearing the last day of which was set down for 15 February 2013. My Associate emailed the applicant’s solicitor and the respondent on 6 February 2013 in the following terms:
Good afternoon,
Please be advised that these proceedings have been listed for mention this Monday 11 February 2013 at 4.15pm to consider Ms Panshin's adjournment application and/or to make any further directions that may be required prior to hearing.
Kind Regards,
Chambers of Federal Magistrate Altobelli
I accept that the respondent’s email had raised other matters but they were not as pressing as the adjournment application and were, in any event, not matters properly dealt with by correspondence with chambers.
The matter was listed at 4.15pm on 11 February 2013 to consider the respondent’s adjournment application. She did not appear. I made the following procedural orders:
1. The matter be confirmed for part-heard Final Hearing on 15 February 2013 at 10:00am.
2. Both parties are to file and serve the following documents no later than 14 February 2013:
(a) An updated Financial Statement;
(b) An updating Affidavit;
(c) An updated Minute of Orders sought if they differ from the Application or Response;
(d) A list of the Affidavits to be relied on at the Final Hearing; and
(e) An updated chronology.
3. The Respondent’s costs be reserved.
Exhibit A3 of 15 February 2013 is a copy of a letter dated 12 February 2013 from the applicant’s solicitor to the respondent emailed to what appears to be 3 separate email addresses. It confirms the final hearing on 15 February 2013, that the applicant was ready to proceed and would be attending with counsel, gave notice of opposition to any further adjournment application, foreshadowed some orders that would be sought and the possibility of an undefended hearing, and served a number of documents including the orders I made on 11 February 2013.
Exhibit A2 of 15 February 2013 is a printout of an email dated 13 February 2013 from the respondent to herself but copied in to a number of other parties including the applicant. Not all of the email was tendered. The email includes within its body another email of the same date but apparently sent at an earlier time to unnamed recipients. Those parts of the email that were tendered into evidence are reproduced below:
From: Ms Panshin
Sent: Wednesday, 13 February 2013 5:38 PM
To: Ms Panshin
Cc: Mr G Ms Panshin [personal email addresses omitted]
Subject: Re: Federal Magistrates Court hearing to be transferred to the dv list in Family Court of Australia
…
On 13/02/2013, at 7:53 AM, “Ms Panshin” wrote:
To fm Altobelli, Please ensure this Hearing to be transferred to domestic violence list in family. As per dv fmc best practice. Your court is compromised.
To ms Stidwill as you know the service requirement is stamped and signed…
…
I will not longer attend a court or magistrate that facilitates your clients gross abuse of the system and lacks integrity or the honesty…
…
Thank you
Yours sincerely,
Ms Panshin
Sent from my iPhone
On 12/02/2013, at 5:37PM, “Jayne Stidwill” [email protected] wrote:
Ms Panshin
I attach correspondence and documents in this matter.
Jayne Stidwill
<Letter to Ms Panshin 12.02.13.docx><Farmer and Panshin P SYC 2252 of 2011 Orders made on 11 February 2013.doc> <Financial_statement_form_V3 January 2013.doc> <Annexure to the Affidavit of Ms Farmer 11.02.13.docx> <FARMER PANSHIN – BALANCE SHEET - -3.pdf>
On 15 February 2013, the day of the hearing, my Associate drew to my attention an email from the respondent sent at 9.10am. This email became the court’s Exhibit 2. I reproduce the email in full below, including the annexure being a Medical Certificate from Dr A.
Subject: Court transfer and no hearing due to medical and magistrate still enabling the abuser ms Farmer and damaging further the victim Ms Panshin
From: Ms Panshin >
To: Appeals <[email protected]>, [email protected], [email protected], [personal email addresses omitted]To all concerned, Please be advised.
Please transfer this matter to the family court as requested to follow the federal magistrates best practice for domestic violence.
Thank you
Yours sincerely,
—Ms Panshin
[medical certificate omitted]
Sent from my iPhone(Errors as per the original)
I treated Exhibit 2 as the respondent’s adjournment application.
Mr Batey on the behalf of the applicant opposed the same and sought to proceed on an undefended basis. He submitted, in effect, that there was no evidence before the court to warrant an adjournment and that, in any event, his client would be greatly prejudiced by any further delay in the finalisation of these proceedings. I declined to grant the adjournment and granted leave to the applicant to proceed on an undefended basis. These reasons explain why I did so.
The respondent was given the opportunity to argue for an adjournment on Monday 11 February 2013 but did not attend. She was notified on Tuesday 12 February 2013 that the matter was proceeding to hearing. On Wednesday 13 February 2013 the respondent clearly signalled her intention not to attend court, but made no reference to any medical reason why she could not participate in the hearing. On Thursday 14 February 2013 the respondent obtains what purports to be a Medical Certificate from Dr A certifying that the respondent “is suffering from severe depression and is unable to attend court from 14 February 2013 until 28 February 2013 inclusive.” As the respondent did not attend court on 15 February 2013 I do not know whether the depression referred to commenced on 14 February or at some other time, or if it was an exacerbation of a pre-existing chronic condition, whether it was situational ie. in response to the particular stress of proceedings, or episodic in nature. The document did not indicate how the alleged severe depression impacts on the respondent’s ability to attend court, or even if it went to her capacity.
The fact that the respondent struggled emotionally at times during the course of this case was plainly apparent. She applied for an adjournment on 6 July 2012 the second day of the hearing but later withdrew that application. In support of that application, however, she relied on Exhibit R8 a report by a psychologist Mr B dated 5 July 2012. His report opined that the respondent “continues to suffer a chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood with post traumatic stress features”. Despite this the respondent continued to give evidence without any indication that she was affected by the condition referred to. She was legally represented at the time.
The respondent came before me personally on 22 January 2013 pursuant to her Application in a Case filed 15 January 2013. I made certain orders at her request. My reasons for judgment were published as [2013] FMCAfam 96.
Annexed to her affidavit sworn 14 January 2013 is a further report of Mr B, this time dated 10 November 2012. This is a much more comprehensive report. Mr B at p.8 of his report confirms his earlier diagnosis (Exhibit R8). He opines that the respondent “experiences emotional overload which in turn impacts on her problem solving and decision making skills”. He refers to the exacerbating impact of court proceedings, and that her “psychological disorder is reactive to her current life circumstances, and there is a limited role with regards to medication”. Notwithstanding this, when the respondent appeared before me on 22 January 2013 she presented as intelligent and articulate though she did need to be re-focussed at times on to the relevant urgent matters. I made orders in her favour in relation to what I considered to be the urgent issue – giving her access to funds. The rest of her application was adjourned to 15 February 2013.
Having regard to the history and background set out above I formed the impression that the respondent made a conscious decision not to participate in the final hearing and used her psychological disorder as a convenient pretence to justify her non-participation. I found it odd that Mr B was not asked by the respondent to provide an update from his earlier reports that could explain her inability to participate in the proceedings. From his reports the inference is that he is the respondent’s treating psychologist. I have no idea who Dr A is, or how many times she was consulted before forming the opinion she expresses. Moreover there was no evidence before the court to explain why the respondent, who was clearly able to advocate for herself on 22 January 2013, could not do so on 15 February 2013. The onus was on the respondent in this regard.
The procedural history of this litigation in this court, in the Full Court of the Family Court, and indeed in the High Court of Australia, gives an insight into its acrimonious nature. The applicant quite rightly contends for an early determination of her application particularly when she has not been responsible for the delays caused and the respondent’s multiple applications. Her counsel submits, and I accept, that she has been put to considerable cost, stress, delay and inconvenience as a result of these proceedings.
Another legitimate consideration is the impact on this court of granting an adjournment. The High Court in Aon Risk Services Australia Limited v ANU (2009) 239 CLR 175 “put to rest the notion that adjournments can be obtained regardless of the effect on the court itself including its resources, its lists, and its ability to get through its work, as well as the effect on other litigants”: Angelini & Angelini [2011] FamCAFC 190 at para.63. In Angelini the Full Court also took notice that this court is “notoriously a very busy trial court with long lists and inevitable delays” (para.63).
In this case the prejudice to the applicant, and the prejudice to this court, exceeds the prejudice to the respondent. I declined to grant the adjournment.
Undefended hearing
Mr Batey, counsel for the applicant, sought to proceed on an undefended basis pursuant to Federal Magistrates Court Rule 13.03A(1)(e) but I suspect he meant r.13.03A(2)(b)(vii) as the former relates to a defaulting applicant but the latter to a defaulting respondent. For all practical purposes his contention was that the respondent was not defending the proceedings with due diligence as evidenced by her non-attendance at court and, indeed, her non-prosecution of her own adjournment application. I am satisfied that the respondent was in fact in default as contended. Indeed the respondent was also in default by not complying with order 2 made 11 February 2013. Rule 13.03B(2)(d) thus empowers the court to proceed to give judgment. Rule 13.03C is an alternative basis for proceeding to an undefended hearing. I granted leave for the applicant to proceed on an undefended basis. My reasons for doing so are based not just on the respondent’s inaction and default but also for the reasons articulated in declining to grant the adjournment.
I then raised an issue with counsel as to how, exactly, the undefended case should proceed in circumstances where the respondent had not only already given evidence but had filed voluminous material. Mr Batey contended that I had a discretion to have regard to the respondent’s affidavit evidence. That is clearly correct. This seems to be supported by paragraph 51 of the Full Court’s judgment in Zane & Allen [2008] Fam CAFC 115 (31 July 2008). I exercise my discretion in favour of having regard to the respondent’s affidavits. I cannot see how I can discharge my statutory duty under s.90SM(3) to make a just and equitable order unless I have regard to this evidence. One must not lose sight of a particular feature of this case – it is part-heard with evidence given by both parties. To pretend somehow that the respondent has adduced no evidence is fallacious.
The real challenge in this case is the weight to be given to the evidence. Mr Batey I think correctly submitted that untested evidence should not be given more weight than tested evidence. The subtle complexity that arises in this case is that, to the extent that I will discuss below, each party has had the opportunity to test some of the other’s evidence, but the way in which this hearing evolved necessitated a less than optimal orderly presentation of the evidence. Thus there were lengthy delays in this matter due to a substantial quantity of irrelevant and inadmissible material in the respondent’s affidavits. There were further lengthy delays attributable to the respondent absenting herself. These delays necessitated the determination of an interim application in respect of which evidence was adduced. Almost all of these delays, and the interruption to the orderly presentation of the evidence, were attributable to the respondent. She now absents herself from the final hearing. She is in many ways the author of the present script. History indicates that she will probably also be the first to complain about both process and outcome. All the court can do is to look at all of the relevant evidence and attribute weight to it as best it can in the circumstances of this case. Even though this is an undefended hearing the evidence will need to be closely scrutinised. I take little solace from Mr Batey’s observation that the respondent may have rights under s.79A (I presume he meant s.90SN). Indeed Federal Magistrates Court r.16.05 may provide another alternative. It is clear that Mr Batey and, I expect, his client was well aware of the possibility of further litigation between the parties.
Period of cohabitation
The applicant contends that the relationship commenced in 2007 when they moved into a rented property at [B]. The respondent contends that the relationship commenced in October 2005 when the applicant stayed at her home in Property S. The respondent concedes, however, that after they travelled together in UK and Europe in 2005 or 2006, the applicant moved to Perth whilst the respondent remained in Sydney. She asserts at paragraph 5 of her affidavit filed 4 July 2011 that “we commenced living together again in April 2007 when Ms Farmer moved back to Sydney”. There is common ground, therefore, that the relationship started as late as 2007 – the issue is whether it was before 2007. The respondent’s case is based on contribution she made from October 2005.
The applicant was cross-examined on this issue, but the respondent was not. Notwithstanding this, the evidence permits me to find that the relationship in fact commenced in or about October 2005, as the respondent contends. I do so on the following basis:
a)The applicant’s evidence in cross-examination by Mr Ang, who was counsel for the respondent on 5 and 6 July 2012, was less than satisfactory on this issue. She was often evasive and unresponsive. Her most prevalent response to questions was to the effect that she could not recall or could not say, even though the events in question were in the comparatively recent period 2005-2007. I found it odd, indeed quite disconcerting, that the applicant who is clearly an intelligent, articulate and successful person in terms of her work, could draw a clear distinction in her mind about being in a relationship with the respondent from 2005 but it not being a “domestic relationship”. The distinction signalled an insight, if not clear understanding, of the legal differences between the two concepts. Strangely, however, her memory about very clear matters put to her was deficient. I accept that intelligence does not inexorably mean having a good memory, but on the facts of this case, having regard to the applicant’s demeanour and the matters referred to above, I find it odd that she could recall so little about their relationship between 2005-2007.
b)When the applicant’s memory was prompted by documents, rather than making sensible concessions, the applicant again retreated behind memory issues, before ultimately conceding what was put to her. The clearest example of this relates to the holiday they had to UK and Europe when the applicant initially could not recall and then ultimately conceded that she did arrange for and pay for the respondent’s air travel (transcript 5 July 2012 pp.95-97).
c)When cross-examined about the concept of marriage to the respondent the applicant said that she did not feel strongly about this, even though in love with her. The thrust of the applicant’s evidence was that in the period 2005-2007 her commitment to the respondent was a limited one. Exhibits R2, R3, R4 and R5 paint a starkly different picture, and one of unconditional love and commitment. I do not accept the applicant’s assertions that exhibits R2, R4 and R5 do not relate to the period in question. I accept that exhibits R6 and R7 also support the respondent’s contention. The applicant’s diary note for 6 November 2006 has a notation “[Ms Panshin] 1 yr” which I find designated the 1st anniversary of their relationship. I attach no less weight to this evidence just because it is a photocopy of the diary entry. I also accept that exhibit R7 further corroborates the respondent’s contention that, as at November 2006, the applicant regarded the respondent’s home in Property S as her home.
Section 4AA sets out the meaning of de facto relationship. I find having regard to all the evidence that a de facto relationship between the parties commenced as contended by the respondent in October 2005 and not 2007 as contended by the applicant.
Between 2005-2007 they were in a mutually committed relationship in which they shared residence for most but not all of the time. I accept the applicant was in Perth for a period, but find that this did not interrupt their relationship. They travelled together in the UK and Europe. They had a sexual relationship that commenced the very first night they met. There is no evidence to suggest that in the period 2005-2007 either was intimate with any other person. There is some evidence that they shared their finances, but this is not the basis in which I make the finding of de facto relationship. Their relationship appeared to have public aspects to it.
I am confident that this finding can be made on the evidence before the court. The respondent was not cross-examined on this issue and I accept that is no fault of the applicant. The findings I make are based on the exhibits I refer to, and the concerns I have expressed about the applicant’s own evidence. Whilst it is not impossible that cross-examination of the respondent might have led to another finding, especially cross-examination by Mr Batey, it is still unlikely that a different conclusion would be available.
Both parties agree that separation took place in December 2010. I find, therefore, that the relationship commenced in October 2005 and ended in December 2010.
Pool of assets and liabilities
During final submissions Mr Batey contended on behalf of the applicant that the court would find the balance sheet to be in accordance with the document that became exhibit A5, which is reproduced below:
BALANCE SHEET AS PREPARED ON BEHALF OF APPLICANT - 12/02/2013
| Name: | FARMER & PANSHIN | |||||||
| BALANCE SHEET | File No: | SYC2252/2011 | ||||||
| No. | Ownership | Description | Applicant value | Respondent value | ||||
| ASSETS | ||||||||
| PERSONAL ASSETS | ||||||||
| 1 | Joint | Sale proceedings of [C] property | $127,500 | $127,500 Estimate |
| 2 | Applicant | CBA Account | $63 | NK |
| 3 | Applicant | ING Account | $56 | NK |
| 4 | Respondent | CBA Accounts (3) | $5,012 | $5,012 |
| 5 | Applicant | PGO Scooter | $4,000 | NK Sale proceeds |
| 6 | Respondent | 2000 Volkswagen Golf | $6,500 | $6,500 |
| 7 | Respondent | Household furniture | $7,000 | $7,000 |
| 8 | Applicant | Household furniture | Nominal | NK |
| 9 | Respondent | Comsec securities | $32,000 | $32,000 |
| TOTAL | $182,131 | $178,012 |
| 10 | Applicant | Partial property distribution | $20,000 | $20,000 |
| 11 | Respondent | Partial property distribution | $20,000 | $20,000 |
| 12 | TOTAL | $40,000 | $40,000 |
| LIABILITIES | ||||
| No. | Ownership | Description | Applicant value | Respondent value |
| 13 | Applicant | NAB Visa Credit Card | $6,813 | NK |
| 14 | Applicant | NAB Credit Card | $6,048 | NK |
| 15 | Applicant | Debt to [A] | $10,750 | NK |
| 16 | Respondent | Outstanding Tax | Nil | $112,000 |
| 17 | Respondent | CBA Personal Loan | $6,000 | $6,000 |
| 18 | Respondent | MasterCard Credit card debt | NK | $15,435 |
| 19 | TOTAL | $29,611 | $133,435 | |
| NET ASSETS | $192,520 | $84,577 |
| SUPERANNUATION | ||||
| No. | Ownership | Description | Applicant value | Respondent value |
| 20 | Applicant | [F] Super | $15,625 | NK |
| 21 | Applicant | [P] Super Plan No 2 | $170,745 | NK |
| 22 | Respondent | [O] & [M] Super | $19,990 | $13,661 2011 balance |
| TOTAL SUPERANNUATION | $206,360 | $13,661 | ||
| GRAND TOTAL | $398,880 | $98,238 |
I note that the applicant filed a document entitled Balance Sheet on 4 June 2012. This is a document that is almost impossible to understand. I ignore it in the circumstances of this case.
I discuss exhibit A5 as follows:
a)Item 1 is evidenced by exhibit A6 being documents relating to settlement of the sale of the parties’ property at [C].
b)Items 2 and 3 I will ignore given the very small quantum of money in these bank accounts.
c)Item 4 is based on the respondent’s Financial Statement sworn 4 July 2011 item 37. This is the only such statement sworn by the respondent. The respondent did not comply with an order made 11 February 2013 that she file an updated Financial Statement. Mr Batey submits, and I accept, that in the circumstances this is both the only evidence I have as to the respondent’s savings, and an admission by her.
d)Item 5 is based on the applicant’s admission and is the best and only evidence I have on the issue.
e)Items 6 and 7 are based on the respondent’s admissions contained in her Financial Statement of 4 July 2011.
f)Item 8 – there is no evidence about either the nature or value of household items retained by the applicant so the value will, for present purposes, be nil.
g)Item 9 is based on exhibit A7 being documents produced by CommSec being Transaction Summary Statements in the name of the respondent for the period 23 September 2009 to 11 October 2012. There is no basis in these documents to find that the respondent has $32,000 either presently or at some past time. In the past the respondent had other amounts, at various times. Item 9 should be nil being the last shown balance on 11 October 2012.
h)
Items 10 and 11 represent the payments made pursuant to the orders I made at the respondent’s request on 22 January 2013.
Mr Batey submits, and I accept, that these payments should be characterised as partial property distribution and therefore added back.
i)Items 13 to 15 inclusive purport to be personal liabilities of the applicant. In the absence of any clear evidence demonstrating that items 13 and 14 were liabilities in existence at the time of separation, or liabilities incurred since separation for a joint purpose such as preserving property, I decline to include these in the balance sheet. I note that Mr Batey foreshadowed making submissions about post-separation contribution that I will deal with below. The item 15 debt is described by the respondent as an overpayment by her former employer, [A]. The applicant gives little other evidence about this. I decline to have regard to any evidence of the respondent in this regard. In the absence of evidence it is not possible to characterise this debt as something that ought fairly to come into the balance sheet and I decline to so include it.
j)Items 16 to 18 inclusive purport to be the respondent’s contention of her personal debts, all of which are referred to in her Financial Statement of 4 July 2011. What I do not know is whether these debts still exist and if so what their quantum is. If these purported debts were paid I do not know what source of funds was used. Reference to the respondent’s Balance Sheet of 4 June 2012 does not throw any light on the matter. Even if I had regard to the annexure entitled [omitted] Counselling Services, annexed to the respondent’s affidavit sworn 14 January 2013 (filed in support of her application for the orders I made on 22 January 2013) it does not clarify the situation. The onus and opportunity to provide disclosure in relation to these debts was at all times on the respondent. She has failed to discharge the onus on her. In the circumstances of this case I have no choice but to ignore these purported liabilities on the basis of lack of evidence.
k)Items 20 and 21 represent the value of the applicant’s superannuation. I could find no evidence verifying item 20 other than the applicant’s assertion in this regard which I accept in the circumstances. Item 21 is supported by exhibit A9. It is possible that the difference between the figure found in exhibit A9, and item 21, represents contributions and accretions since the date of exhibit A9. Nothing turns on this. Whilst dealing with the issue of the applicant’s superannuation it is convenient to deal with two related issues. Exhibit A4 satisfies me that, notwithstanding the respondent’s contention, the applicant only ever had one real account with [P] and not two, as one was created in error when she moved from [A] to [C]. Exhibit A8 demonstrates that the value of the applicant’s superannuation at 1 July 2006 was $56,602.48 which increased to $69,732.66 by 30 June 2007. This is relevant to assessing contribution to the applicant’s superannuation. What is clear from exhibits A9 and A8 is that between 1 July 2006 and 23 December 2010 the value of the applicant’s superannuation increased by $103,086, based on the applicant’s own evidence.
l)Item 22 purports to be the value of the respondent’s superannuation. In the respondent’s Balance Sheet of 4 June 2012 she values her superannuation at $20,000. In the circumstances I will accept item 22 as correct.
I note that on the respondent’s Balance Sheet of 4 June 2012, doing the best I can to understand the document, she appears to claim add-backs. I simply cannot understand the respondent’s claim in this regard. Given her non-participation in the final hearing I will rely on the material before the court.
Having regard to my findings above the pool of assets and liabilities will be as follows:
BALANCE SHEET
PERSONAL ASSETS
| No. | Ownership | Description | Court’s value |
| 1 | Joint | Sale proceedings of [C] property | $127,500 |
| 2 | Applicant | CBA Account | - |
| 3 | Applicant | ING Account | - |
| 4 | Respondent | CBA Accounts (3) | $5,012 |
| 5 | Applicant | PGO Scooter | $4,000 |
| 6 | Respondent | 2000 Volkswagen Golf | $6,500 |
| 7 | Respondent | Household furniture | $7,000 |
| 8 | Applicant | Household furniture | NIL |
| 9 | Respondent | Comsec securities | NIL |
| TOTAL | $150,012 |
| 10 | Applicant | Partial property distribution | $20,000 |
| 11 | Respondent | Partial property distribution | $20,000 |
| 12 | TOTAL | $40,000 | |
| TOTAL ITEMS 1-12 | $190,012 | ||
LIABILITIES
| No. | Ownership | Description | Court’s value |
| 13 | Applicant | NAB Visa Credit Card | - |
| 14 | Applicant | NAB Credit Card | - |
| 15 | Applicant | Debt to [A] | - |
| 16 | Respondent | Outstanding Tax | - |
| 17 | Respondent | CBA Personal Loan | - |
| 18 | Respondent | MasterCard Credit card debt | - |
| 19 | TOTAL | NIL | |
| NET ASSETS | $190,012 |
| SUPERANNUATION | |||
| No. | Ownership | Description | Court’s value |
| 20 | Applicant | [F] Super | $15,625 |
| 21 | Applicant | [P] Super Plan No 2 | $170,745 |
| 22 | Respondent | [O] & [M] Super | $20,000 |
| TOTAL SUPERANNUATION | $206,370 | ||
| TOTAL | $396,382 |
Approach to assessment of contribution
Mr Batey contended that I should assess contribution by reference to two pools being superannuation assets, and non-superannuation assets. In the circumstances of this case where it is a relatively short relationship and where each party appears to have brought assets into the relationship, I agree that this is the most appropriate approach. There will be two pools of assets consisting of superannuation valued at $206,370 and non-superannuation assets valued at $190,012.
Assets at cohabitation
In order to assess contribution it is necessary to establish the assets each had at cohabitation late in 2005. The situation in relation to the applicant’s superannuation is relatively clear, and is discussed above. She had about $56,000 in her [P] superannuation, and $15,625 with [F] Super.
The applicant appears to give no evidence about the value of the respondent’s superannuation at cohabitation. The respondent contends that she had about $16,500 (affidavit 4 July 2011 para.6.2). Given that the amount in question is relatively small, and that the applicant contends the value at separation was only $19,990, I am prepared to accept the respondent’s assertion, even though untested by cross-examination.
The applicant deposes in her affidavit of 12 April 2011 paragraph 3 that at the commencement of the relationship (that she says was in 2007 but which I have found was in October 2005) the respondent owned a property at Property S which she sold for between $560-580,000. She knew there was a mortgage on the property but she did “not know how much she received by way of net proceeds of sale”. The only admissible evidence of the applicant in this regard is that the respondent purchased the property in late 2002 for $540,000 and improved and renovated the same. I accept this evidence is untested. Even on the applicant’s evidence, however, she does not know what the respondent received when the property was sold, and does not contend that there was no equity in this property. Based on the applicant’s evidence, therefore, I find that the respondent had equity in a property at Property S in an unspecified amount.
Contribution during relationship
The applicant deposes at paragraph 4 of her above affidavit that she purchased a property at Property B in her sole name with the assistance of a mortgage from the ANZ Bank. Surprisingly she gives no details of the purchase price, amount of the mortgage, or who contributed whatever equity may have been put into the property. The applicant gives evidence about this transaction at paragraph 9 of her affidavit sworn 4 July 2011. It is untested evidence on which I place little weight. It is of interest to note, however, that even the respondent contends only that she “used $10,000 from my savings towards the deposit”. She makes an unspecified, general assertion about contribution of further funds on which I place no weight. In all likelihood the applicant’s implied contention that there was little equity in the Property B property is probably correct. An important point, however, is that the respondent says the property was purchased for $450,000. I accept this evidence. The applicant clearly does not know what the purchase price was otherwise she would have deposed to such relevant, indeed possibly important evidence. She is not prejudiced, therefore, by the inability to cross-examine the respondent on this contention. I note that if the applicant knew what the purchase price of this property was, she was obliged to disclose the same to the court.
At paragraph 5 of her affidavit the applicant makes the significant concession that the respondent “contributed financially towards the apartment by paying half of the mortgage payments and was involved in improvements made…”. At paragraph 10 of the respondent’s affidavit she deposes to the nature and extent of the contribution she made. It is untested evidence on which I place no weight. I do note, however, that it is not necessarily inconsistent with the applicant’s evidence.
The applicant deposes at paragraph 6 that the apartment at [B] was sold in 2009, and they purchased the [C] property for $690,000 “using the net proceeds from the sale of my apartment and a joint mortgage to the Commonwealth Bank”. Curiously she gives no evidence about the sale of [B]. I can only infer that she does not know much about this transaction, even though she describes the property as “my apartment”. If she knew these details she would have deposed to them. According to the respondent at paragraph 13 of her affidavit the apartment sold for $550,000. In circumstances where the applicant does not know what it sold for, I am prepared to accept the respondent’s contention. Cross-examination is unlikely to have made a difference.
The applicant’s contention as to how the [C] purchase was funded is disputed by the respondent at paragraph 14 of her affidavit but I place no weight on this as her evidence was untested. Similarly the applicant’s contention that each paid half of the loan repayments is disputed by the respondent, but in the circumstances of this undefended hearing I place no weight on the respondent’s untested evidence.
The applicant’s evidence is surprisingly minimalist about other contributions during the relationship whereas the respondent’s evidence is quite detailed. It is untested evidence however, and I place no weight on the same. I note the assertion at paragraph 11 of the respondent’s affidavit about the receipt of an inheritance of $58,905 from the estate of the respondent’s late father. That is corroborated by the solicitor’s letter. The applicant says nothing about this. The contention that it was contributed to the relationship cannot be accepted, however, as I infer it is a contentious issue in respect of which the respondent has not been cross-examined. The same conclusion applies to the share sales.
In his closing submissions Mr Batey submitted that other than as regards superannuation, up to the date of separation contribution under s.90SM should be assessed as being equal. On the evidence before me, and with the limitation imposed by an undefended hearing, a conclusion of equality of contribution is available and I so find.
The assessment of contribution to superannuation is more difficult. The evidence allows me to find that during the period of cohabitation the applicant’s superannuation increased by about $103,000. In his written submission Mr Batey asserts that the majority of the applicant’s superannuation was attributable to before and after the relationship. Having regard to my findings about when the relationship commenced, and considering the evidence about the value of his client’s superannuation at different times, I cannot accept his submission. In any event, the effect of the orders sought by the applicant is to leave her superannuation intact, and make no adjustment in the respondent’s favour out of the sale proceeds of the [C] property in respect of her contribution to the applicant’s superannuation. I can only assume that, in effect, the applicant is contending that the respondent made no contribution to her superannuation. I cannot accept that this is correct in law or is just and equitable. The superannuation increased during the period of cohabitation. When one looks at the totality of the contribution made by both parties, financial and non-financial, direct and indirect, even merely as conceded by the applicant herself, the fact is that what each of them did enabled the other to work and thus accumulate superannuation entitlements: Burke & Burke (1993) FLC 92-356, Hauff & Hauff (1986) FLC 91-747. It does not necessarily follow, however, the contribution should be assessed as equal, even if the focus is purely on the increase in value of the superannuation. The increase in value is attributable, at least in part, to what the applicant had at cohabitation, as well as any increase in salary she experienced. It is hard to discern how the respondent contributed to these factors. In the circumstances I assess the respondent’s contribution to the increase in value of the applicant’s superannuation to be 30%, and indeed will round this down to a cash adjustment of $30,000 in order to simplify the orders.
Post-separation contribution
The applicant contends for an adjustment in her favour to recognise the contribution she made in the period from the date of separation to the date of the sale of the property at [C]. The claim is based on a number of grounds that I will discuss below.
The respondent was in sole possession of the home from the date of separation until I ordered her out on 10 July 2012. My reasons for judgment ([2012] FMCAfam 69) explain the basis of this order. It was clear to me that the respondent had either been in occupation of the property, or renting it out, whilst at the same time not paying the mortgage. It was equally clear that the respondent was not committed to selling the property, and indeed had obstructed attempts to do so.
Even after orders were made on 10 July 2012, the applicant’s affidavit of 18 September 2012 satisfies me that the respondent continued to obstruct the sale. Indeed the applicant discovered that not only had the mortgage not been paid whilst the respondent was in occupation, but neither had the home insurance, council and water rates, all of which had to be attended to by her.
The applicant’s affidavit of 11 February 2013 satisfies me that the respondent had not paid electricity and gas accounts for a period when she was in occupation. The applicant spent money preparing the property for sale including paying for plastering work and obtaining a new engineer’s report. The solicitor engaged by the applicant to undertake the conveyancing undertook additional, and it would seem unnecessary work as a result of the respondent’s interference, thus adding to the cost of the sale.
I have no conceptual difficulty in accepting that the above facts give rise to a claim for post-separation contribution in favour of the applicant. The difficulty I have is in quantifying it. The applicant seeks both an adjustment in her favour and to be reimbursed all of her expenses incurred ($5,374). Whilst reimbursement of actual cost meets the applicant’s out of pocket expenses, it does not recognise the contribution she made, clearly in arduous circumstances, to preserve the property and eventually sell it pursuant to my orders.
I am not satisfied that there is evidence justifying the claim for reimbursement of $5,374. Whether I have regard to the applicant’s affidavits of 18 September 2012 and 11 February 2013 and exhibit A3 (a letter dated 12 February 2013 from the applicant’s solicitor to the respondent) it is not possible to discern with any degree of clarity how the claim of $5,374 is calculated. Because of this I will make an adjustment in the applicant’s favour of 5% to be applied to the non-superannuation pool only.
Future needs
Mr Batey submits on behalf of the applicant that there should be a further adjustment in her favour of 5% having regard to s.90SF(3) factors. I decline to do so, for the following reasons.
Whilst the applicant is in good health, I cannot conclude that the respondent is. Even if I totally ignored Mr B’s reports, I am still left with my own observations of the respondent in court. Mr Batey conceded that I cannot be blind to what transpired in court during the period that this case was in my docket. Her behaviour at times was bizarre and disruptive. She could be both articulate and incoherent within the same minute. She struggled to regulate her own emotions. Mr Batey submitted there might be “a degree of instability there”. It is hard to argue with this. He submits, however, that the behaviour could be attributable to the litigation itself and thus, inferentially will abate on its conclusion. I do not know when the litigation will conclude. At the moment there is an appeal from my decision of 22 January 2013 pending before the Full Court, a Contravention Application filed 4 February 2013 returnable on 27 March 2013, and a special leave application before the High Court. I make no assumptions about when the litigation might end, and thus Mr Batey’s submission that any condition suffered by the respondent is litigation related cannot be accepted not only because there is no evidence in this regard, but because no one can say when this litigation will come to an end. There is, therefore, an issue about the respondent’s health.
It must follow that there is an issue about the respondent’s earning capacity. The applicant is in secure employment earning a high salary. The applicant’s superannuation is considerably greater than that of the respondent.
There are counter-valuing factors though. I have no idea about the respondent’s true financial circumstances. The only Financial Statement I have is from 2011. The evidence she gave me on 6 July 2012, when compared to the documentary evidence, sends mixed signals. This is discussed in my reasons dated 10 July 2012 eg. paragraphs 20, 22, 23, 32 and 33.
The applicant submits that a s.90SF(3)(o) factor in her favour is the respondent’s exclusive use of the home in the post-separation period, her non-payment of various utilities and outgoings in the house, and her frustration of the sale of the home. Quite apart from the reality that some of these matters are recognised in the adjustment I make for post-separation contribution, there is insufficient evidence for me to conclude that whatever frustrating activities were undertaken by the respondent actually had a causative impact.
In the end result I am unable to make any adjustment under s.90SF(3). So far as the applicant is concerned, there is no evidence to justify an adjustment in her favour. So far as the respondent is concerned, whilst a s.90SF(3) adjustment may well have been possible in her favour, the quantification thereof is not possible due to lack of evidence.
Conclusion
If the superannuation assets are treated as the first pool of assets it is clear that the applicant made a greater contribution than the respondent. For the reasons explained above, however, the respondent did contribute to the increase in the applicant’s superannuation during the relationship. This has been assessed at $30,000. As the applicant did not seek a splitting order, the $30,000 will be adjusted out of non-superannuation assets. Each will otherwise return the superannuation they have.
The non-superannuation assets total $190,012. The applicant has contributed 55% of that, but out of that the $30,000 will need to be paid to the respondent. The applicant’s share of the $190,012 is 55% or $104,506.60; the respondent’s share is $85,505.40.
The applicant already has the following assets:
5.
Scooter
$4,000
10.
Partial distribution
$20,000
$24,000
As her entitlement is $104,506.60, this means she should receive $80,506.60 from the sale proceeds, less the $30,000 adjustment for the superannuation: $50,506.60.
The respondent already has the following assets:
4.
CBA Savings
$5,012
6.
2000 VW Golf
$6,500
7.
Household furniture
$7,000
11.
Partial distribution
$20,000
$38,512
As her entitlement is $85,505.40, this means she should receive $46,993.40, plus the $30,000 adjustment for superannuation. Therefore $76,993.40.
Thus the sale proceeds of the [C] property totalling $127,500 should be divided as follows:
a)Applicant $50,506.60 39.6%
b)Respondent $76,993.40 60.4%
$127,500.00
If any interest has accrued it should be shared between the parties in proportion to their percentage share.
They each otherwise retain what they have.
Orders
I will make orders that reflect the matters set out above. One of the orders will be that all other applications be dismissed save for the respondent’s Application – Contravention filed 4 February 2013 that is not listed until 27 March 2013. I stood over to the final hearing the respondent’s Application in a Case filed 15 January 2013. This was the application which contained the request for urgent release of funds from the settlement proceeds of the home and which I dealt with, on that point, on 22 January 2013. The application raised a number of other matters which I dismiss as the respondent did not attend the final hearing. I will make orders but stay them for seven (7) days to enable the respondent to bring an application under Federal Magistrates Court Rules r.16.05(2) if she so desires.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate:
Date: 7 March 2013
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