FAY & FAY - [2015] FamCA 739

FAMILY COURT OF AUSTRALIA

FAY & FAY

[2015] FamCA 739

FAMILY LAW – PROPERTY SETTLEMENT IN RELATION TO MARRIAGE – Where the only significant asset in the matrimonial pool is jointly owned land – Where it was found that the contributions of the parties until separation were equal – Where after separation the wife spent the entirety of the money received by her as a result of an insurance claim in relation to a fire at the former matrimonial home – Where the insurance policy was in the wife’s sole name but the former matrimonial home was jointly owned – Where it was found that the husband had made an indirect contribution toward the insurance money through his contributions toward the former matrimonial home – Where the Court declined to add back the insurance money into the matrimonial pool – Where the money received and spent by the wife was taken into account under s 75 (2) – Where the Orders provided for the land to be transferred to the husband.

Family Law Act 1975 (Cth) ss 75, 79

Kennon & Kennon (1997) FLC 92-757
Miller & Miller [2009] Fam CAFC 121
Yates & Yates [2012] FamCAFC 138

APPLICANT:

Mr Fay

RESPONDENT:

Ms Fay

FILE NUMBER:

SYC

6981

2013

DATE DELIVERED:

9 September 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

25 – 26 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A – In person

SOLICITOR FOR THE APPLICANT:

N/A – In person

COUNSEL FOR THE RESPONDENT:

Ms Spain

SOLICITOR FOR THE RESPONDENT:

Mills Oakley Lawyers

Orders

IT IS ORDERED

That the husband and the wife do all acts and things required to transfer to the husband the interest of the wife in the property at B Street, C Town in the state of New South Wales being the land described as Lot … DP ...
That in the event that either party fails or neglects to sign any document required to give effect to Order 1, a Registrar of the Family Court of Australia is authorised to sign such document on behalf of that person.
That other than as provided in these Orders, each party shall be solely entitled to any item of property in his or her possession at the date of these Orders.
That the wife’s application for spousal maintenance and for the payment of a lump sum of $250,000 is withdrawn and dismissed.
That the wife’s response filed on 14 August 2014 is otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fay & Fay has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6981/2013

Mr Fay

Applicant

And

Ms Fay

Respondent

REASONS FOR JUDGMENT

Mr Fay (“the husband”) and Ms Fay (“the wife”) commenced cohabitation in or around January 1996 and married in 1998. They have three children born in 1996, 1999 and 2007. The oldest child lives independently.
In 1997 the parties purchased vacant land at C Town (“the property”). Over a number of years they both worked to build a home on the property where, eventually, they lived as a family.
The home and contents on the property were initially insured in the joint names of the husband and the wife.
In December 2009 the husband and the wife separated, the wife and the children remaining in the home on the property.
After the separation, the wife insured the home and contents on the property with a different provider, for an increased amount, in her sole name.
On 20 February 2011, the house on the property burned down.
The wife made a claim on the insurance policy in her sole name and, she deposed, received $705,784 (“the insurance money”). The husband disputed that figure and contended that the wife had received a greater amount.
The wife used that money to discharge the mortgage over the property, then $457,969. She retained the balance of the insurance money which, she deposed, has been spent. It is not disputed that none of the insurance money remains.
The husband received none of the insurance money.
The property, with the burnt out remains of the house, is the subject of these proceedings. The property has an agreed value of $85,000 taking into account the agreed cost of removing the burnt remains and remediating the land.

THE COMPETING APPLICATIONS

The husband sought orders to transfer the wife’s interest in the property to him and that, otherwise, each party retain the assets in his or her possession.
The wife sought orders to transfer the husband’s interest in the property to her and a further payment to her by the husband of $250,000. In addition the wife sought spousal maintenance of $600 per week, in perpetuity.
At the commencement of submissions, the wife’s claims for a lump sum payment and for spousal maintenance were abandoned.

THE PARTIES

The husband is a retired carpenter, then a soldier, aged 43 years. He receives military superannuation of $477 per week and a pension from Veterans Affairs (Totally and Permanently Incapacitated or “TPI”) of $762 per week, giving a total income of $1,239 per week. He pays child support as assessed by the Child Support Agency. He lives with his wife who was recently retrenched from her employment. They have a two year old child.
The wife asserts that the husband has other sources of income.
The wife is in receipt of a Centrelink payment. The two younger children of the marriage live with her. In a Financial Statement sworn in August 2014, the wife deposed that the 16 year old child, being the second child of the parties, earned $50 per week. There is no evidence of the current income of that child, who attends TAFE.
The wife receives a Newstart allowance. She is not assessed as having any disability disqualifying her from work but she has no skills which would qualify her for employment.
The husband conceded that the wife is likely to be dependent on Centrelink for the foreseeable future.

THE ISSUES

Some of the matters that were in issue at the commencement of the hearing were resolved in the course of cross-examination. Other issues remained to be determined.
The wife alleged that the husband had, either presently or at some time in the past (which, is not clear), a capacity to earn income and had earned income, other than that which he disclosed, at least until 2011. The husband denied that he earned income but asserted that his mother had lent him money from time to time.
The wife asserted that the husband had been the perpetrator of family violence such that her contributions were made more arduous, relying on the decision of Kennon & Kennon (1997) FLC 92-757 (“Kennon”). The husband denied each allegation of violence.
The wife asserted that the proceeds of the insurance claim, received by her and spent by her, should be disregarded and that there should be no adjustment in favour of the husband pursuant to s 75(2) arising from her receipt of those funds. She asserted that the money had been spent on reasonable living expenses and thus should not be taken into account.
The husband asserted that the wife had failed to account for the insurance money and that the insurance money should be added back to the pool. Alternatively, the husband contended that there should be an adjustment in his favour pursuant to s 75(2) to take into account the wife’s receipt and use of the insurance money.

THE BALANCE SHEET

At the commencement of the hearing the parties tendered a balance sheet which set out their contentions in relation to their property. The balance sheet was revised in the course of the hearing and the revised balance sheet is set out below:

ASSETS
Ownership		Description	Wife's value	Husband's value
1	Joint	Property at B Street, C Town	$85,000	$85,000
2	Joint	Home Insurance	$NIL	$247,797
3	Joint	Contents Insurance (at least 65 per cent of which was jointly owned)	$NIL	$79,000
4	H	Funds in Bank	$NK	$NIL
5	H	Truck (Liberty financed)	$20,000	$20,000
6	H	Furniture and household effects	E$10,000	E$10,000
7	W	Funds in Bank	$NIL	$NIL
8	W	Motor Vehicle	E$12,000	$NIL
9	W	Furniture and Household Effects	E$10,000	E$10,000
10	W	Jetski	E$6,000	$10,000
Total		$143,000

LIABILITIES
Ownership		Description		Wife/de facto partner’s value	Husband/de facto partner’s value
11	Joint	Loan from Ms D Fay to parties for deposit for purchase of property		$NIL	$30,000
12	H	Council Rates & NSW Local Lands Services Fees		$NIL	$3,500
13	H	Liberty finance		$NIL	$33,000
Total		$ NK	$ $66,500

The disputes will be determined using the numbers from the balance sheet.

Item 2 and 3 – the proceeds of the insurance claim

The husband contended that the proceeds of the insurance claim should be treated as assets prematurely distributed by the wife to herself and added back into the balance sheet.
Counsel for the wife contended that the proceeds of the claim should not be added back and that the Court should determine the division of the existing assets.
The assets now available for distribution are a fraction of the amount sought to be added back by the husband. To add back the insurance money would produce a notional pool of assets for distribution which bears no resemblance to reality and distorts the calculation of entitlements.
It is not necessary to add back the insurance money to do justice and equity between the parties.
The preferable course to take into account, when considering the s 75(2) factors, is the amount already received and spent by the wife.
The wife conceded in cross-examination that, in her affidavit evidence about the amount that she had received, she had not included the sum of $98,000 paid into her St George account.
Ultimately, in cross-examination, the wife conceded that she had received a total of $846,934. That money was disbursed, as to $457,969, to discharge the mortgage over the property leaving the wife with the benefit of $388,965.

Items 8 and 10 – Wife’s car and jetski

There is no evidence of the value of these items and they will be included in the balance sheet at the values for which the wife contends.

Item 11 – Loan from the husband’s mother

There is no evidence of the loan. It will not be included as a liability.

Item 12 – Rates owed

Rates notices were annexed to the husband’s affidavit. He was not cross-examined in relation to them. The husband did not assert that the amount referred to in the balance sheet was owed but, rather, that this was the amount he had paid. That payment will be taken into account as a contribution.

Item 13 – Liberty Finance

The wife sought to include the value of the husband’s vehicle as an asset but to exclude the debt relating to finance for the purchase on the basis that the debt was incurred after separation. Both will be included on the balance sheet.
The assets and liabilities of the parties are:

Ownership		Description	Value
1	Joint	Property at B Street, C Town	$85,000
2	H	Truck (Liberty financed)	$20,000
3	H	Furniture and household effects	E$10,000
4	W	Motor Vehicle	E$12,000
5	W	Furniture and Household Effects	E$10,000
6	W	Jetski	E$6,000
Total		$143,000

Ownership		Description	Value
8	H	Liberty finance	$33,000
Total		$33,000

Thus the net assets of the parties total $110,000.
Because the significant asset is a property which they jointly own, and cannot jointly enjoy, it is just and equitable to make orders adjusting that ownership.

CONTRIBUTIONS

The parties commenced to live together at a time when the husband was working as a tradesman and the wife as a nanny.
They lived in rented accommodation.
The wife had no significant assets.
The husband had a truck, tools of trade and furniture.
Their first child was born in 1996. In the same year they purchased the property for $79,000 using vendor finance. They purchased an old caravan which they placed on the site and where they lived when they were at the property.
In 1997 they had plans approved to construct a house on the property and borrowed $40,000 to commence the work (the mortgage was later extended). The wife ceased all paid employment and the husband worked during the week. On weekends he worked on the building of the house.
In 1998 the house was completed to lockup stage and the parties married.
The evidence of the parties in relation to their income and contributions during this period conflicts. However, there is no dispute that they both expended their whole energies on the construction of their house and the care of their children. In so far as the conditions in which they lived on the property were harsh and inconvenient, this was their choice and affected them both.
There were periods when the husband was unable to work. There were periods when the wife did cleaning and ironing but did not earn a taxable income.
In 2000 the husband joined the defence forces. From 2001 the parties had accommodation provided by the defence forces. The husband did was stationed overseas. He was paid an allowance of $40,000 in addition to his salary. The husband’s earnings were remitted to Australia and used to pay the mortgage. The balance of the husband’s earnings during that period were banked as savings. The wife asserts that, during the period the husband was overseas, she worked at cleaning and ironing jobs and earned about $400 per week which was sufficient to pay the weekly expenses for her and the children. The husband was not aware that the wife worked but, if she did, then it was her decision to save the husband’s wages.
In March 2001, the husband and the wife insured the house on the property for $500,000 and the contents for $42,000 with GIO Insurance. The policy was in their joint names.
In 2002 the husband sustained injuries that ended his career in the defence forces. In 2003, or 2004, he commenced receiving a pension and he was awarded two amounts of compensation of $40,899 and $18,742, which he received as a lump sum. That money was contributed to family expenses. He was medically discharged in February 2004.
The family moved back to the property and lived on the husband’s pension.
In March 2006, the GIO insurance policy for the home and contents in the parties’ joint names was cancelled.
In 2007, the husband, with a former colleague, established a business with a view to obtaining contracts overseas. The business did not succeed.
In 2009 the wife received an inheritance of $40,000. That money was used for family purposes.
In June 2009, the husband and the wife again obtained insurance for the house and the contents on the property with GIO Insurance. The house was insured for $500,000 and the contents were insured for $42,000. Both the husband and the wife were listed as beneficiaries of this policy.
Later in 2009, the parties separated. The wife remained living on the property with the children.
The husband made the greater financial contribution during the marriage. He ensured that the income he earned while deployed overseas, including the loading of $40,000, was available for family purposes. The wife’s major financial contribution was her inheritance of $40,000.
The wife made the major homemaking and parenting contribution.
Their contributions should be assessed as equal to the time of their separation.
After separation, the husband sold a tip truck for $20,000 and used that money for his living expenses. He also cashed in a superannuation entitlement, receiving approximately $10,000.
The husband paid child support, between July 2010 and March 2011, totalling $9,310.
For a period of time in 2010 both the husband and the wife and the children lived in Sydney. There is a dispute about the amount of time that the children spent with the husband during that period which I am unable to determine.
Although there is a paucity of evidence on this issue, it appears that from at least June 2010, the parties ceased to be joint beneficiaries under the GIO insurance policy for the house (and contents) on the property.
In about November 2010, the wife and the children returned to live at the property.
The previously insured amount of the house on the property and its contents was increased by the wife, through a new policy with AMP, in November 2010. The new policy insured the house for $650,000 and the contents for $85,200. The wife was the sole beneficiary of this policy. The wife deposed that the husband refused to contribute to the costs of this insurance policy.
On 7 February 2011, the sum for which the house was insured by AMP was increased by the wife to $750,000 and the contents remained insured for $85,200. The wife remained the only beneficiary of this policy.
On 20 February 2011, the house on the property burnt down.
The wife received $388,965 by way of an insurance payout after the discharge of the mortgage. The husband did not receive any of the insurance money.
In March 2011 the wife relocated with the children and assumed a different name and the husband could not contact her or them. As a consequence, the husband was unable to spend time with the children or to pay child support. The wife has been the children’s sole carer since March 2011.
The wife did not pay the rates and charges relating to the property after she left and the husband has paid approximately $5,000 in rates and Rural Land Protection levies.
In late 2013 the husband was contacted by the Child Support Agency and commenced to pay child support in accordance with an assessment. He was assessed to pay back payments of $1,346 and paid that sum. The husband continues to pay in accordance with the assessment, which is minimal because the wife has not submitted a tax return and is therefore assessed to have provisional income of $47,219. Since the assessment the husband’s mother has also paid $500 to the wife on account of child support. In addition the wife has received an education allowance for the children from Veteran’s Affairs from which she withdrew $3,470.
The wife’s sole care of the children after separation warrants a further adjustment for contributions. I accept the submission of counsel for the wife that a further 5 per cent adjustment is appropriate.
Contributions should be assessed as 55 per cent to the wife and 45 percent to the husband, a differential of 10 per cent.
On the basis of contributions assessed, the wife would receive property totalling $60,500 and the husband property totalling $49,500, taking into account the fact that his net asset position (excluding the property), is a debt of $3,000

THE RECEIPT OF THE INSURANCE MONEY BY THE WIFE

While the house and contents on the property were insured in the wife’s sole name and the husband did not contribute toward the payment of premiums for the policy, the insurance money was received by the wife as a result of a claim in relation to jointly owned property; namely, the former matrimonial home. As outlined earlier in these reasons, the parties purchased the property in the early stages of their relationship and worked together to build the house on the property.
In Yates & Yates [2012] FamCAFC 138 the Full Court, in relation to the issue of whether the proceeds of an insurance policy (paid to the wife as a result of her diagnosis with cancer) should be treated as a contribution made by the wife or the parties jointly, stated:
97. As was explained by the Full Court in the case of Zyk, RM & Zyk, D (1995) FLC 92-644 when faced with how to treat a lottery win, “the critical question in such cases is – by whom is that contribution made?” (at 82,515). We consider that that is also the question to be asked here.
…
100. In any event, it is still a matter of determining whose contribution it is, and there may be many permutations of that. In other words, it may be a sole contribution by the party whose insurance policy it is, it may be an equal contribution by both parties, or it may be that it is a joint contribution but with one party making a greater contribution than the other. Importantly that decision as to whose contribution it is will depend very much on the evidence that is before the judicial officer, and the difficulty in this case is the paucity of evidence in relation to the policy.

In Miller & Miller [2009] Fam CAFC 121 (“Miller”), his Honour Justice Strickland determined that both the husband and the wife had contributed toward a lump sum insurance payment received by the husband after separation as a result of him suffering a heart attack. However, his Honour determined that the wife’s contribution was “an indirect contribution of a relatively minor nature”. This was because although it had been a joint decision to take out the policy and the premiums were maintained out of the parties’ joint funds, there needed to be a life threatening event before the payment could be made; namely, the husband’s heart attack. The circumstances of this case are clearly distinguishable from Miller; however, it illustrates that the exercise of my discretion in relation to the treatment of the insurance money will be dependent on the particular circumstances of the case and the evidence before the Court.
I consider, in the circumstances of the present case, that while the husband did not directly contribute to the insurance money received by the wife, he made an indirect contribution toward this payment through his direct contributions in relation to the purchase of the property and the construction of the house on the property. However, it must be acknowledged that the wife made the greater financial contribution toward the insurance money as the decision to obtain the latest policy was made solely by her, the husband did not contribute toward the payment of the premiums for that policy, the policy was obtained by the wife after separation, and part of the money received was applied by the wife to discharge the mortgage on the property.
The entirety of the insurance money received by the wife, after the discharge of the mortgage on the home, have been expended by her. In retaining and expending the insurance money of $388,965, the wife received a significant financial benefit over the husband post-separation. The limited evidence provided by the wife does not substantiate her assertions as to how the money was expended.
For the reasons outlined earlier, I have declined to add the insurance money back into the matrimonial asset pool despite my finding that both parties have contributed toward the receipt of those proceeds.
I consider that the husband’s contribution toward the insurance money received and expended by the wife warrants an adjustment in his favour pursuant to s 75(2)(o) of the Family Law Act 1975 (Cth).
The amount of this adjustment will be considered later in these reasons.

THE KENNON CLAIM

The Full Court in Kennon set out the principles to be applied in the following statement at 84,294 – 84,295:
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s 79. We prefer this approach to the concept of ``negative contributions'' which is sometimes referred to in this discussion.
In the above formulation, we have referred only to domestic violence, for the reasons which we indicated earlier, but its application is not limited to that.
We think the earlier cases may have overlooked the distinction which more recent cases have emphasised. However, if it is thought now to be artificial to distinguish those longstanding authorities in that way, it appears to us, having regard to the reconsideration which has been given to this matter over recent times, that it may now be appropriate for this Court to treat those authorities as no longer binding and to be subject to the qualifications and distinguishing feature referred to in the recent decisions of this Court. There have been marked changes in perceptions, both legal and social, about domestic violence and its impact in recent times and it appears to be appropriate to give effect to them: see Nguyen (1990) 169 CLR 245; Farnell and Farnell (1996) FLC ¶ 92-681, and Ivanovic v Ivanovic (1996) FLC ¶ 92-689.
However, it is important to consider the ``floodgates'' argument. That is, these principles, which should only apply to exceptional cases, may become common coinage in property cases and be used inappropriately as tactical weapons or for personal attacks and so return this Court to fault and misconduct in property matters ‑ a circumstance which proved so debilitating in the past. In addition, there is the risk of substantial additional time and cost.
However, in our view, s 79 should encompass the exceptional cases which we described above. It would not be appropriate to exclude them as a matter of policy because of this risk. It is a matter of commonsense for the lawyers involved and, where that may not be sufficient, it is a matter for a firm hand by the Court at an early stage when a case appears to raise those issues.
It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in Ferguson) conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions). Similarly, in Killick v Killick (1997) 21 Fam LR 331 at 341, in proceedings under the De Facto Relationship Act 1984 (N.S.W.), the Court of Appeal rejected the argument for the male partner that incidents of infidelity during the relationship by the female partner should be taken into account as diminishing her contribution as homemaker or parent.
Thus, in order to make out her claim, the wife must demonstrate a course of conduct on the part of the husband that either had a discernible impact upon her contributions or made her contributions significantly more arduous.
The wife deposed to four specific incidents.
In her affidavit sworn 27 May 2015 she deposed:
On one occasion I have had my jaw dislocated by [the husband] when I would not look at him when he was yelling at me. He grabbed my chin and pulled my face to make me face him. This incident occurred at [the property] and was witnessed by [named child].
The husband denied that allegation.
The allegation is not specific as to time. The parties either visited or lived at the property between 1997 and 2009.
The wife deposed to an incident when she says the husband:
…verbally abused me and physically abused me by slamming me against the wall at his mother’s unit in [named suburb]…I ended up with bruises all over my back.
The husband denied that allegation. Again the allegation is not specific as to time.
The wife deposed to an incident when the oldest child was a few months old, presumably in early 1996, when she said that the husband had been drinking and woke her in the early hours of the morning, yelling, and tried to pull her out of bed. She deposed that the husband went into their bedroom and started kicking in the walls and punching holes in the cupboard. She deposed that the husband smashed a mirror and ripped a chandelier out of the roof. The wife deposed that her mother was present during that incident. The wife’s mother was not called to give evidence to corroborate the wife’s evidence. No explanation was given for the failure to call that evidence.
The husband denied the allegation.
The wife deposed that when they were living at (a named town) the husband came home in the early hours of the morning very drunk. He woke her up and started abusing her. He grabbed her wrist and twisted it.
The husband denied that allegation.
The wife deposed that on 26 January 2010 after the parties had been separated for a few months, the husband came to the property. An argument ensued and the husband raped her. The wife says that she telephoned a friend (named) and told her what had happened, and that she made a complaint to the Police. The wife’s friend was not called to give evidence. Her evidence would have been admissible to counter the husband’s assertion of recent invention. The wife did not cause the records of her complaint to the Police to be tendered. There was no explanation for the failure to call that evidence.
Thus the wife’s allegations fall to be determined, without any extrinsic evidence, on the basis only of the evidence of the wife and the husband.
The wife was not a reliable historian. There were numerous instances where, in cross-examination, she conceded that her affidavit evidence was either incorrect or deficient. For example, she understated the amount received from the insurance claim by $141,150. In her trial affidavit filed in May 2015 she deposed that, when the husband was on overseas deployment, his income was applied to the mortgage over the property and the balance was saved. In her updating affidavit sworn on 14 August 2015, she deposed that the husband’s income “was not in any way applied by him to our family’s support”. Her estimate of her expenditure on electricity and gas was demonstrated to be exaggerated. She continually asserted that she had not had time to provide documentary evidence of her claimed expenditure of the insurance money, despite the fact that directions were made in December 2014 for those documents to be provided. She asserted that the husband had removed a sum of money from an account containing money for school fees until in cross-examination it was demonstrated that the funds had been withdrawn by the wife’s mother at her request and deposited into the wife’s account. She asserted that she had sent a receipt for insurance premiums of $1,500 to the husband’s mother in the face of documents showing that she had paid the premium by periodic debit in instalments. She did not volunteer that the oldest child was no longer a member of her household.
The husband relied on a number of documents to refute the wife’s allegations.
A letter from the wife’s treating doctor dated 9 April 2009 stated:
[The wife] has been a patient of this practice for 3 years. She has suffered depression during that time and has had a problem with alcohol. She has not reported any psychological or physical violence from her husband in that time. There has not been any signs of abuse during that time.
On 20 September 2009 the wife swore an affidavit in an application to have an Apprehended Domestic Violence Order (“ADVO”) against the husband withdrawn. The affidavit was prepared by solicitors. She deposed:
I have never been worried about my physical safety and have not been subject to physical violence from the [husband].
The verbal arguments which occurred between the [husband] and I prior to the proceedings being issued, were no more serious than the usual disagreements in the course of an average relationship. At no time during any previous disagreements was I in fear for my or my [child’s] safety or the safety of my [children].
At or about the time when the initial disagreements occurred and the police attended our previous place of residence, I was diagnosed with severe depression. This was contributed to by the death of my father in conjunction with my substantial abuse of alcohol.
A document entitled “Confidential Assessment Report” dated 1 March 2006 which was produced by a psychologist refers to the wife having been recently hospitalised after attempting suicide. The wife is described as “happily married”. The wife complained of migraine headaches. The report notes “She had also dislocated her jaw 5 to 6 weeks before her first visit”.
In the face of the documentary evidence, the absence of material evidence to substantiate the wife’s assertions and the doubts which have been recorded in relation to the reliability of the wife’s evidence, I am not satisfied that the wife has established, on the balance of probabilities, that any of the alleged incidents occurred.
The claim is not made out.

THE HUSBAND’S INCOME AND CAPACITY FOR EMPLOYMENT

The husband has been assessed as incapacitated and receives a TPI pension.
In 2008 the husband, with a former colleague, set up a business known as E Pty Ltd. The business was contracted by F Pty Ltd, a company operating in resource exploration in Country G to liaise with government and resource exploration companies. The husband made eight trips to Country G in the course of that contract. The husband gave evidence that the cost of hiring militias and purchasing weapons in Country G was such that the business was not profitable and it ceased to operate.
The husband’s mother operates a business known as H Pty Ltd. There is no evidence that the husband has any interest in that business. The husband has provided some services to H Pty Ltd for which he was paid. He received $34,000 from H Pty Ltd between 24 November 2010 and 29 December 2010. In January 2011 he received a further $22,000. H Pty Ltd was contracted by F Pty Ltd to provide services in Country G. The husband helped H Pty Ltd by providing his contacts. In August 2011 the husband accompanied a television crew to Country G on behalf of H Pty Ltd. In December 2012 the husband accompanied a television crew to the I Region on behalf of H Pty Ltd.
Between November 2010 and October 2013 the husband received $138,000 from H Pty Ltd. The husband gave evidence that, during that period he was drinking heavily and gambling regularly, suffering the effects of the breakdown of the marriage and the loss of his children. He said that his mother gave him an ATM card which he could use to withdraw money and he did so regularly. In cross-examination he was directed to withdrawals using the ATM card at his local hotel and he agreed that he had probably made those withdrawals and gambled the money away. He said that money was used both for his own purposes and to cover the expenses of H Pty Ltd contractors. H Pty Ltd rented a room in the husband’s flat which was used to accommodate visiting contractors. The husband used the card, as did the contractors, to cover their expenses. In addition, the husband’s mother lent him various sums of money which were drawn by her from the H Pty Ltd account.
The husband said that he kept a ledger which detailed what money drawn from H Pty Ltd was used for contractors and what money was a loan to him from his mother. That ledger was in a H Pty Ltd vehicle which was stolen. The theft was reported to the Police.
The husband was not able to quantify the amount he owes his mother as a result of her loans. The husband’s mother has also paid for him to holiday in Country J on two occasions and she currently lends the husband a car which he drives during the week.
It was neither suggested nor established that the husband has any interest in H Pty Ltd.
There is no doubt that the husband’s mother has been generous in her support of him in the past. However, with the exception of the use of her car, there is no evidence that her support continues.
There is no evidence that the husband has ever been paid a wage from H Pty Ltd.
The husband’s tax returns for the financial years ended 30 June 2012, 2013 and 2014 were tendered in the wife’s case. In 2012 his taxable income was $24,297; in 2013, $24,662 and in 2014, $25,157.
I am not satisfied that the husband has either an income, or a capacity to earn income, over and above that which he disclosed.

SECTION 75(2)

The wife contended that there should be an adjustment in her favour for s 75(2) factors to recognise the fact that she remains the sole carer for the two younger children aged eight years and 16 years.
The husband contended that there should be an adjustment in his favour to take into account the wife’s receipt and use of the insurance money.
Counsel for the wife submitted that, the wife having spent the entire amount on necessary living expenses for her and the children, there should be no adjustment in favour of the husband.
The husband’s position in relation to the insurance money was stated early in the proceedings. He requested documentary evidence to support the wife’s assertions that the money had been spent on living expenses. He renewed that request on the first day of the trial and each occasion the matter was before the Court. He sent a number of emails to the wife’s solicitors requesting documents.
On 4 December 2014, directions were made that, on or before 27 February 2015, the solicitor for the wife provide to the husband all primary documents relevant to monies received by the wife after separation from whatever source and documents which indicate the manner in which the wife has disposed of those monies.
The husband raised the matter again when the matter was before the Court for call-over on 10 August 2015 and it was made clear to the solicitors for the wife that, in the absence of the primary documents, her schedule of expenses was not admissible evidence.
The document entitled “Schedule of Respondent Wife’s Living Expenses March 2011 to May 2015” was annexed to the wife’s affidavit filed 27 May 2015. The expenses totalled $391,038. They were divided into 20 categories. In relation to the claim for replacement of household contents and personal effects, the claimed amount was double the amount previously claimed by the wife. In relation to the balance of asserted expenses, the wife provided one electricity bill and one gas bill. There was no documentary evidence of the amounts claimed for rent, the purchase of a vehicle, telephone, internet, school fees, children’s activities, presents, psychologists’ fees, legal fees or household consumables.
There was some limited evidence in relation to the purchase of a jetski and camping goods (although the evidence did not accord with the schedule) and in relation to dental treatment.
The wife failed to prove that the sum of $391,038 was spent by her on necessary, or other, living expenses.
In cross-examination, the wife conceded that she had received, in the period from August 2011 to July 2014 the following amounts:
$388,965 from the insurance money
$158,596 from Centrelink
$2,086 in child support from the husband
$500 in child support from the husband’s mother
$3,470 from Veterans Affairs for the children’s education
$2,188 in interest from a term deposit or part of the insurance money
The total received and spent by the wife in that period was $555,805.
She was in receipt of an income from Centrelink. She was not left without support other than the insurance money.
The wife’s car and her home contents, presumably purchased from the insurance money, have been brought into account in the balance sheet. Otherwise, she has had the sole benefit of the insurance money.
All that remains to be divided between the husband and the wife is the property which has a value of $85,000. Since the husband’s personal assets have a net debit value of $3,000, the effect of an order that the property be transferred to him is that he will retain assets with a net value of $82,000.
On the basis of my assessment of contributions, the wife would be entitled to $60,500. She has personalty to the value of $28,000. Therefore her entitlement from the property would be $32,500.
I consider that an adjustment in favour of the husband in that sum of $32,500 both recognises the wife’s obligations to care for the younger children into the future but also accounts for the fact that she received and has spent the insurance money.
The Orders will provide for the property to be transferred to the husband.

I certify that the preceding one hundred and thirty-two (132) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 9 September 2015.

Associate: SNK

Date: 9/9/2015