Garrity & Ansellin
[2022] FedCFamC2F 217
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Garrity & Ansellin [2022] FedCFamC2F 217
File number(s): WOC 1305 of 2019 Judgment of: JUDGE KEMP Date of judgment: 2 March 2022 Catchwords: FAMILY LAW – Property – de facto relationship – contributions – parties’ initial contributions – wife’s ownership of a property which subsists at final hearing – husband’s sale of a property and contribution of funds towards the wife’s mortgage – husband’s sporadic unemployment until final years of their relationship – drawdowns on the wife’s mortgage to fund living expenses – husband’s Do-It-Yourself works around the wife’s property – future needs – adjustment – just and equitable orders. Legislation: Family Law Act 1975 (Cth) ss 4(1), 4AA, 79, 90SB, 90SF, 90SM, 106A, 117
Evidence Act 1995 (Cth) ss 50, 128
Cases cited: Aleksovski & Aleksovski (1996) FLC 92-705
Black and Kellner (1992) FLC 92-287
Botany Bay City Council v Minister for Planning and Infrastructure & Ors (No 2) [2014] NSWLEC 101
C & C (2005) FLC 93-220
Dickson & Dickson (1999) FLC 92-843
D & D (2006) FLC 93-256
Fenton & Marvel [2013] FamCAFC 132
G & G (1984) FLC 91-582
Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143
Idylic Solutions Pty Ltd & ors - Australian Securities and Investments Commission v Hobbs [2012] NSWSC 568
Luciano (2000) FamCA 401
Mallett & Mallett (1984) FLC 91-507
Norbis & Norbis (1986) 161 CLR 513
Parshen & Parshen (1996) FLC 92-720
Pierce & Pierce (1999) FLC 92-844
Re Chemaisse; Federal Commissioner of Taxation (Intervener) (1990) FLC 92-133
Russell & Russell (1999) FLC 92-877
Sippel & Sippel [2004] FamCA 201
Stanford & Stanford [2012] HCA 52
T & T (2000) FLC 93-023
Weir and Weir (1993) FLC 92-338.
Division: Division 2 Family Law Number of paragraphs: 152 Date of last submission/s: 25 August 2021 Date of hearing: 3 & 4 June 2021 Place: Sydney Counsel for the Applicant: Mr Wong Solicitor for the Applicant: Shoalhaven Family Law Pty Ltd Counsel for the Respondent: Mr Apelbaum ORDERS
WOC 1305 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GARRITY
Applicant
AND: MS ANSELLIN
Respondent
order made by:
JUDGE KEMP
DATE OF ORDER:
2 MARCH 2022
THE COURT ORDERS THAT:
1.These orders are made pursuant to s.90SM of the Family Law Act 1975 (Cth) (“the Act”).
2.Within 60 days of the date of these orders (“the due date”), the respondent de facto wife (“the wife”) make a payment to the applicant de facto husband (“the husband”) in the sum of $112,016.20 (“the settlement sum”).
3.In the event the wife is unable or fails to comply with the payment of the settlement sum in order 2, above, by the due date, then the husband and the wife shall be appointed as joint trustees as to the sale of the property situated at and known as B Street, Town C in the State of New South Wales (“the B Street, Town C property”).
4.The B Street, Town C property be, thereafter, forthwith placed on the market for sale by private treaty with such real estate agent (“the selling agent”) as the parties agree and, failing agreement, within 14 days the husband shall nominate a list of 3 real estate agents and provide that list to the wife and within 7 days of the date of that provision the wife shall select one (1) and the wife shall immediately do all acts and things necessary, including but not limited to signing any sales agreement, to prepare the B Street, Town C property for sale.
5.In the event that the wife fails to nominate the selling agent in accordance with order 4, above, the husband shall be at liberty to nominate the selling agent.
6.The Contract for Sale in relation to the sale of the B Street, Town C property be prepared by such Solicitor/Conveyancer as agreed to by the parties and, failing agreement, within 14 days the husband shall nominate a list of 3 Solicitors/Conveyancers and provide that list to the wife and within 7 days of the date of that provision the wife shall select one (1) from the list and the wife shall immediately do all acts and things necessary, including but not limited to signing any costs agreement, to have prepared the Contract for Sale.
7.In the event that the wife fails to comply with order 6, above, the husband shall be at liberty to nominate the Solicitor/Conveyancer.
8.Within 14 days of the expiration of the due date, the parties agree on a listing price and, failing agreement, within that time, the B Street, Town C property be listed for sale at a price recommended by the selling agent selected pursuant to these orders.
9.Within 14 days of the expiration of the due date, the parties shall agree on a valuer to determine the value of the B Street, Town C property, if such determination is later required pursuant to these orders and, failing agreement, the husband shall nominate 3 valuers and the wife shall select one (1) within a further 7 days of that date.
10.In the event that the wife fails to comply with order 9, above, the husband shall be at liberty to nominate the valuer.
11.In the event that an offer is made to purchase the B Street, Town C property at a price lower than the price at which the B Street, Town C property is offered for sale and the parties do not agree as to whether the offer should be accepted, then the valuer selected pursuant to these orders shall be jointly commissioned to express an opinion as to the fair market value of the B Street, Town C property. In the event that the valuer is of the opinion that the fair market value of the B Street, Town C property is lower or equal to the offer to purchase then the parties shall accept the offer and sell the B Street, Town C property at this price.
12.In the event that the B Street, Town C property is not sold by private treaty within 3 months from the expiration of the due date or such other date as the parties agree, the husband and the wife shall immediately take all necessary steps to sell the B Street, Town C property by auction pursuant to the following orders.
(a)In the event that the parties do not agree on the auctioneer to be employed, the auctioneer shall be appointed by the selling agent.
(b)The parties shall execute all such documents as may be necessary to authorise the auctioneer to sell the B Street, Town C property by auction.
(c)In the event that the parties do not agree on the reserve price to be placed on the B Street, Town C property at the auction, upon the B Street, Town C property selling at the auction, the parties shall accept a reserve price as recommended by the valuer selected pursuant to prior orders.
(d)Each of the parties shall, where required by the auctioneer, pay to him or her, half of the sum as is reasonably required for advertising, or other expenses in relation to the auction. If one of the parties advances more than the other, then he or she shall be reimbursed the difference from the proceeds of the sale of the B Street, Town C property before any division of the proceeds of sale between the husband and the wife.
(e)The husband and the wife shall attend the auction sale and, in the event that the B Street, Town C property is not sold, shall negotiate with the highest bidder. In the event that the B Street, Town C property does not sell at the first auction, then the B Street, Town C property shall be relisted for auction within one (1) month at a reserve price as agreed between the parties and failing agreement, at 5% less than the reserve price at the first auction.
(f)In the event that the B Street, Town C property does not sell at the second auction, then the B Street, Town C property shall continue to be relisted on the same basis and with a continued reduction of the reserve price on the same basis.
13.On either a sale by private treaty or a sale by auction, the parties shall execute the Contract for Sale and, in due course, the Transfer, in respect of the B Street, Town C property.
14.The parties shall cooperate in every way with the agent in relation to the sale by private treaty or by auction including making the keys for the home available, allowing inspection of the B Street, Town C property at times reasonably requested by the agent and ensuring that the B Street, Town C property is in a neat and clean condition at the time of inspection by prospective purchasers.
15.The proceeds of the sale of the B Street, Town C property shall be disbursed in the following manner and priority:
(a)Payment of agent’s commission and advertising expenses and legal expenses of the sale;
(b)Payment of any money due to the Real Estate Institute or their nominee in determining the price;
(c)Payment of any monies pursuant to order 12(d), above; and
(d)The net balance to be divided:
(i)To the husband the greater of:
A.the settlement sum together with any interest as prescribed under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 from the date of default; or
B.12.38% of the net sale proceeds;
(ii)the balance to the wife.
16.By consent, subject to the above orders, each party be declared to retain, to the exclusion of the other, the sole right, entitlement and interest to the following:
(a)All bank accounts or Credit Union Accounts styled in his or her sole name;
(b)All shares, debentures, interest in unit trusts in his or her sole name;
(c)All motor vehicles, household contents, other personal property and effects in his or her sole name or respective possession or control; and
(d)All superannuation or interest in superannuation funds in his or her sole name.
17.By consent, save for the enforcement of these orders, the husband and the wife are to be solely responsible for all other debts in their sole name as at the date hereof and agree to indemnify the other with respect to same.
18.By consent, save for the enforcement of these orders, both the husband and the wife release the other from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by any reason of or in respect of any act, cause, matter or thing.
19.The husband and the wife shall do all acts and things necessary and give all consents and execute all documents and writings to give effect to these orders in the time periods prescribed.
20.In the event that either party refuses or neglects to execute any Deed, document or other instrument necessary to give effect to these orders, the Registrar of the Court be appointed pursuant to s.106A of the Act to execute such Deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the Deed, document or instrument upon the Registrar being provided with verification of such refusal by way of Affidavit.
21.If any party seeks costs, an appropriate written application may be made within 28 days of today’s date, (supported by any documentary material) to be filed and served within that time period and a copy forwarded to Chambers. The Court will then deal with that matter by way of written submissions, unless the parties wish to be heard orally. If no such application is made within the time period specified, there will be no order as to costs.
22.The matter is, otherwise, removed from the active pending cases list.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Garrity & Ansellin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE KEMP
INTRODUCTION
This is an application by the applicant de facto husband (“the husband”) for property orders.
The husband sought orders, as set out in his Amended Initiating Application filed on 28 May 2021, to the following effect:
(1)That these orders are made pursuant to s.90SM of the Family Law Act 1975 (Cth) (“the Act”).
(2)That within 21 days of the date of these orders, the respondent de facto wife (“the wife”) make a payment to the husband in the sum of $350,000.00.
(3)That in the event the wife is unable or fails to comply with the payment in order 2, above, then the husband and the wife shall be appointed as joint trustees as to the sale of the property situated as and known as B Street, Town C in the State of New South Wales (“the B Street, Town C property”).
(4)That the B Street, Town C property be forthwith [placed] on the market for sale by private treaty with such real estate agent (“the selling agent”) as the parties agree and failing agreement within 14 days the husband shall nominate a list of 3 real estate agents and within 7 days the wife shall select one and the wife shall immediately do all acts and things necessary, including but not limited to signing any sales agreement, to prepare the B Street, Town C property for sale.
(5)In the event that the wife fails to nominate the selling agent in accordance with the previous order the husband shall be at liberty to nominate the selling agent.
(6)That the Contract for Sale in relation to the sale of the B Street, Town C property be prepared by such Solicitor/Conveyancer as the parties agree and failing agreement within 14 days the husband shall nominate 3 Solicitors/Conveyancers and within 7 days the wife shall select one from the list and the wife shall immediately do all acts and things necessary, including but not limited to signing any costs agreement, to prepare the Contract for Sale.
(7)In the event that the wife fails to comply with the previous order the husband shall be at liberty to nominate the Solicitor/Conveyancer.
(8)Within 14 days, the parties agree on a listing price and failing agreement within that time, that the B Street, Town C property be listed for sale at a price recommended by the selling agent selected pursuant to these orders.
(9)Within 14 days, the parties shall agree on a valuer to determine the value of the B Street, Town C property, if such determination is later required pursuant to these orders and, failing agreement, the husband shall nominate 3 valuers and the wife shall select one (1) within a further 7 days.
(10)In the event that the wife fails to comply with the previous order the husband shall be at liberty to nominate the valuer.
(11)In the event that an offer is made to purchase the B Street, Town C property at a price lower than the price at which the property is offered for sale and the parties do not agree as to whether the offer should be accepted, then the valuer selected pursuant to these orders shall be jointly commissioned to express an opinion as the fair market value of the property. In the event that the valuer is of the opinion that the fair market value of the B Street, Town C property is lower or equal to the offer to purchase then the parties shall accept the offer and sell the B Street, Town C property at this price.
(12)In the event that the B Street, Town C property is not sold by private treaty within 2 months from the date of these orders or such other date as the parties agree, the husband and the wife shall immediately take all necessary steps to sell the B Street, Town C property by auction pursuant to the following orders:
(a)In the event that the parties do not agree on the auctioneer to be employed, the auctioneer shall be appointed by the selling agent;
(b)The parties shall execute all such documents as may be necessary to authorise the auctioneer to sell the B Street, Town C property by auction;
(c)In the event that the parties do not agree on the reserve price to be placed on the B Street, Town C property at the auction, upon the property selling at the auction, the parties shall accept a reserve price as recommended by the valuer selected pursuant to prior orders;
(d)Each of the parties shall, where required by the auctioneer, pay to him or her, half of the sum as is reasonably required for advertising, or other expenses in relation to the auction. If one of the parties advances more than the other, then he or she shall be reimbursed the difference from the proceeds of the sale of the B Street, Town C property before any division of the proceeds of sale between the husband and the wife;
(e)The husband and the wife shall attend the auction sale and, in the event that the B Street, Town C property is not sold, shall negotiate with the highest bidder. In the event that the B Street, Town C property does not sell at the first auction, then the property shall be relisted for auction within one (1) month at a reserve price as agreed between the parties and failing agreement, at 5% less than the reserve price at the first auction; and
(f)In the event that the B Street, Town C property does not sell at the second auction, then the property shall continue to be relisted on the same basis and with a continued reduction of the reserve price on the same basis.
(13)On either a sale by private treaty or a sale by auction, the parties shall execute the Contract for Sale and, in due course, the Transfer.
(14)The parties shall cooperate in every way with the agent in relation to the sale by private treaty or by auction including making the keys for the home available, allowing inspection of the property at times reasonably requested by the agent and ensuring that the property is in a neat and clean condition at the time of inspection by the prospective purchasers.
(15)The proceeds of the sale of the B Street, Town C property shall be disbursed in the following manner and priority:
(a)Payment of agent’s commission and advertising expenses and legal expenses of the sale;
(b)Payment of any money due to the Real Estate Institute or their nominee in determining the price; and
(c)The net balance to be divided:
(i)To the husband the greater of:
1. the sum of $350,000.00 together with interest as prescribed by the Family Law Rules from the date of default; or
2. 38% of the net sale proceeds;
(ii)The balance to the wife.
(16)That, subject to the above orders, each party be declared to retain, to the exclusion of the other, the sole right, entitlement and interest to the following:
(a)All bank accounts or Credit Union Accounts styled in his or her sole name;
(b)All shares, debentures, interest in unit trusts in his or her sole name;
(c)All motor vehicles, household contents, other personal property and effects in his or her sole name or respective possession or control; and
(d)All superannuation or interest in superannuation funds in his or her sole name.
(17)That, save for the enforcement of these orders, the husband and wife are to be solely responsible for all other debts in their sole name as at the date hereof and agreed to indemnify the other with respect to same.
(18)That, save for the enforcement of these orders, both the husband and wife release the other from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by any reason of or in respect of any act, cause, matter or thing.
(19)That the husband and the wife shall do all acts and things necessary and give all consents and execute all documents and writings to give effect to these orders in the time periods prescribed.
(20)That in the event that either party refuses or neglects to execute any Deed, document or other instrument necessary to give effect to these orders, the Registrar of the Court be appointed pursuant to s.106A of the Act to execute such Deed, document or instrument in the name of said party and do all acts and things necessary to give validity and operation to the Deed, document or instrument upon the Registrar being provided with verification of such refusal by way of Affidavit.
(21)That the wife pay the husband’s costs incidental to this Application on an indemnity basis or on such other basis as the Court orders.
The wife sought orders, as set out in her Amended Response filed on 22 April 2021, to the following effect:
(1)That the wife be declared to have the sole right, title and interest in the B Street, Town C property.
(2)Similar orders to that sought by the husband in his proposed orders 16, 17 and 18, as set out in paragraph 2, above.
(3)Otherwise all applications of the husband be dismissed.
(4)The husband pay the wife’s costs of and incidental to these proceedings.
Accordingly, the Court will make, by consent, the husband’s proposed orders 16, 17 and 18, as set out at the commencement of these reasons.
There are no children of the parties’ relationship.
On the final day of the hearing, the parties were ordered to file and serve written submissions. The husband was to file and serve his submissions within 21 days of 4 June 2021. The wife was to file her submissions within 21 days of the husband filing his submissions. Any submissions in reply were to be filed within 7 days of the receipt of the wife’s submissions. The husband’s submissions were received on 12 July 2021, and the wife’s were received on 18 August 2021. The husband did not provide any submissions in reply and the matter, therefore, became reserved on 25 August 2021.
The husband relied, subject to all proper claims as to admissibility, on the following:
(a)His affidavit affirmed and filed on 21 April 2021; and
(b)His financial statement affirmed and filed on 28 May 2021.
The wife relied, subject to all proper claims as to admissibility, on the following:
(a)Her affidavit affirmed and filed on 22 April 2021; and
(b)Her financial statement affirmed and filed on 22 April 2021.
The husband was represented by Mr Wong of Counsel and the wife was represented by Mr Apelbaum of Counsel.
Both the husband and the wife were cross examined. On 4 June 2021, the wife was granted a certificate under s.128 of the Evidence Act 1995 (Cth) (“the Evidence Act”) in relation to her evidence concerning disclosures to the Australian Taxation Office (“ATO”) in respect of her income and receipt of work bonuses. The wife had relied on an inquiry made from the ANZ bank in May 2020 as to her borrowing power. In that regard, the wife said that she was able to borrow, over 20 years, the sum of $87,300.00, as confirmed in a letter from Ms D of the ANZ bank at page 26 of Exhibit “1”. Mr Wong submitted that the wife had not fully provided the ANZ bank with the true picture of her income if reliance was placed only on her income tax returns. The Court accepts that position and, notwithstanding that the wife maintained that the ANZ bank had full information as to her financial affairs including receipts of bonuses, no evidence was provided by the ANZ bank, itself, in terms of that assertion.
A single expert report was prepared as to the valuation of the B Street, Town C property pursuant to orders made on 29 January 2020. That valuation was prepared, as at 28 April 2021, in the sum of $940,000.00. At the commencement of the hearing, Mr Apelbaum sought to lead evidence from an adversarial expert valuer. This course was opposed by Mr Wong. The parties were, very sensibly, able to resolve that issue in terms of an agreement as to the value of the B Street, Town C property at $905,000.00 which appeared to be half way between the single expert’s value and the value opined by the adversarial expert. The figure of $905,000.00 was then inserted in item one of the balance sheet, as referred to in Exhibit “Court 1”.
The following documents were tendered as exhibits in the proceedings:
Exhibit No Document Tendered by Court 1 Joint balance sheet Court A Bank statements excluding annotations and highlighting Husband 1 Tender bundle, supplementary tender bundle and subsequent email from Mr Apelbaum Wife
The Court notes that Exhibits “A” and “1” were admitted, provisionally, subject to the Court’s consideration of their overall admissibility under s.50 of the Evidence Act.
“Section 50 of the Evidence Act” Schedules
Section 50 of the Evidence Act stipulates that:
1) The Court may, on the application of a party, direct that the party may adduce evidence of the contents of 2 or more documents in question in the form of a summary if the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question.
2) The Court may only make such a direction if the party seeking to adduce the evidence in the form of a summary has:
a) served on each other party a copy of the summary that discloses the name and address of the person who prepared the summary; and
b). given each other party a reasonable opportunity to examine or copy the documents in question.
3) The opinion rule does not apply to evidence adduced in accordance with a direction under this section.
The Court has had regard to the dicta of Ward J (as she then was) in Idylic Solutions Pty Ltd & ors - Australian Securities and Investments Commission v Hobbs [2012] NSWSC 568 at [63], (“Idylic”) as follows:
"There are three matters to be determined for the purposes of the s 50 application: whether the relevant spreadsheets and tables are summaries of information contained in the underlying documents for the purposes of s 50 (rather than, for example, comprising conclusions or statements of opinion); whether the volume and/or complexity of the underlying documents is such that it would not otherwise be possible conveniently to examine the evidence; and whether a reasonable opportunity has been given to any other party to the litigation to examine or copy the documents in question (and in that regard the fact that there might between now and the trial be a reasonable opportunity to examine or copy the documents is strictly not to the point)."
The Wife sought to rely upon the schedules pursuant to s.50 of the Evidence Act, as contained within Exhibit “1”, as follows:
(1)Schedule 1 titled “Bank Transactions Summary”, pages 6 to 7 (“Schedule 1”);
(2)Schedule 2 titled “$40,000 provided by Mr Garrity in 2013…”, pages 8 to 9 (“Schedule 2”);
(3)Schedule 3 titled “Mr Garrity’s NAB Bank statements November 2010 to July 2013”, page 11 (“Schedule 3”);
(4)Schedule 4 titled “Mr Garrity’s ANZ bank statements December 2014 to May 2019”, pages 12 to 17 (“Schedule 4”); and
(5)Schedule 5 titled “Mr Garrity’s income transferred to Ms Ansellin for household expense April 2012 to August 2018”, pages 18 to 23 (“Schedule 5”).
The Court accepts the husband’s submission that, in determining the admissibility of such evidence as sought to be relied upon by the wife, the Court must be “satisfied that it would not otherwise be possible [to] conveniently examine the evidence because of the volume or complexity of the documents in question”.
With respect to Schedule 1, the Court notes that the wife conceded that the quantum of the rows titled ‘Cash short/extra’ were incorrect for the years 2014 to 2019. The husband submitted that the wife was aware of the errors in this schedule and had failed to bring this to the attention of the Court. The wife, initially, conceded that she was aware of this inaccuracy prior to its submission to the Court but maintained that she was unable to correct the error by the deletion of that row due to the software used to produce the schedule. The wife, subsequently, in cross-examination, agreed that, while it was not her intent, the calculations set out in her schedule were confusing and, to an extent, there had been a doubling up on items to the effect that there was an inaccuracy which could have been disclosed to the husband, at an earlier point in time.
Further, the wife conceded that the item, ‘Credit Card Payments’, in Schedule 1 accounted for costs and expenses already included in previous items of the schedule and that this overlap may have resulted in an inaccurate representation of the wife’s expenses. The husband submitted that this concession confirmed that the wife’s methodology in the creation of Schedule 1 was flawed and failed, therefore, to properly account for his contributions towards the household expenses. The wife, further, agreed that she had excluded some expenses, for example the husband’s petrol costs in going to and from work, notwithstanding that she had included the income earned from his attendance at that work.
The Court is of the view, given the wife’s concessions referred to above, that Schedule 1 should not be admitted. Further, Schedule 1 appears to have been prepared by the application of an opinion or judgment as to what amounts are to be comprised in that calculation and not simply a summary of the document in terms of a calculation of specific amounts summarised from other documents. In that regard, Justice Ward (as she then was) in Idylic stated, at [78]:
“What is here sought to be adduced, to prove a lengthy series of payments and the details relating to such payments, are spreadsheets in which details of each of the payments are listed. Those are the primary facts identified in the documents for which the documents would otherwise be sought to be tendered and what the summary table then contains is the aggregate of the amounts in question. Insofar as a calculation of the total sum of amounts of such payments represents a summing up of the primary facts, it is submitted that this is within the scope of a "summary" for the purposes of s 50 (provided the calculation is able to be objectively determined from specified primary facts). I think there is force in that submission. Provided that the calculation of the total sum does not require the application of any opinion or judgment as to what amounts are to comprised in the calculation, but on its face is simply an arithmetical exercise, I would admit the whole of the summary table as a summary. (The relevant difference I see between the summary tables here sought to be adduced - which list amounts extracted from the underlying documents and simply add up those amounts - and the schedule in Beattie is that there an element of judgment was involved in the calculation of some or all of the amounts then added or subtracted to reach the total sum and, in relation to the invoice charges, it seems that the schedule did not contain the component charges then added together but simply the result of the addition.) If I were to be wrong on this, however, then the balance of the summary tables would nevertheless be admissible as a summary and the last line (containing a total of the amounts in the previous entries) would be read as a submission (and that is how I would have treated them).”
Further, the Court has also considered the dicta of Beech-Jones AJ when he considered Idylic in Botany Bay City Council v Minister for Planning and Infrastructure & Ors (No 2) [2014] NSWLEC 101 at [13]:
“However, questions of fact and degree are involved. There must be a point at which the level of exercise of any judgment or subjective opinion in the formulation of the alleged summary means that what is really being adduced is not, in fact, a true summary of the contents of two or more documents. In some cases the determination of this may be a matter of form rather than substance.”
With respect to Schedules 2, 3 and 4, the husband asserted that the transactions accounted for in those schedules comprised an “entirely artificial” selection of payments and required the wife to use “guesswork” in respect of the selected transactions included with a consequential failure to provide any evidence as to what methodology was used in the creation of those schedules. In that regard, the husband submitted that as there was no consistent methodology applied to, or indeed disclosed, in the preparation of those schedules, they did not assist in assessing the relevant issues before the Court. While the Court accepts the thrust of Mr Wong’s submission, that its task, in the assessment of contributions, is a holistic one and not an accounting exercise, that, in itself, does not mean that schedules, appropriately, produced in accordance with s.50 of the Evidence Act are not, otherwise relevant for the Court’s consideration. However, the Court accepts that the schedules prepared here are flawed.
With respect to Schedule 5, the husband asserted that the column titled ‘description’ in this schedule was not reflective of the bank statements but referred to the wife’s own conclusions. The wife conceded this assertion. The Court is of the view that this schedule is also flawed.
The Court is, further, of the view, given the wife’s concession that the accuracy of the precise figures set out in the above schedules was not reliable, noting that she was self-represented for much of the proceedings, that, similarly, Schedules 2 to 5 are not to be admitted. The wife, in her written submissions, further, conceded that detailed analysis of these schedules was not required given the husband’s concessions, in any event.
The wife maintained that the husband had, substantially, conceded that she had made greater contributions to the parties’ household expenses, including groceries and daily living expenses and travel and holiday expense and that she was the only person who had, directly, paid the mortgage (as there was no evidence of his contributions to it, save for the lump sum payment of $50,500.00 in 2013) and the utilities of the B Street, Town C property and, further, that she had made contributions to the school fees of both her own children and, on occasion, Mr E, the son of the husband.
BACKGROUND FACTS
The following are the, substantially, agreed facts including those as extracted from the wife’s Notice to Admit Facts and the husband’s Notice Disputing Facts, as referred to at pages 1 to 4 of Exhibit “1”, which the Court determines should be admitted:-
(a)In 1969, the wife was born and she is, currently, 52 years of age.
(b)In 1973, the husband was born and he is, currently, 48 years of age.
(c)In 1999, the husband purchased a property situated at F Street, Town C for $150,000.00 (“the F Street, Town C property”).
(d)In 1999, the husband’s child of a previous relationship, Mr E (“Mr E”), was born and he is, currently, 22 years of age.
(e)In 2000, the wife’s son of a previous relationship, Mr G (“Mr G”), was born and he is, currently, 21 years of age.
(f)In 2002, the wife’s daughter of a previous relationship, Ms H (“Ms H”), was born and she is, currently, 19 years of age.
(g)In 2003, the wife purchased a vacant block of land for $159,000.00 and, subsequently, built a home on it as an owner-builder. This property became the B Street, Town C Property. The wife paid for the land and partially for the construction of the home on it using the sale proceeds from a property she previously owned in Sydney. The B Street, Town C property was unencumbered, at the time.
(h)In 2006, the wife separated from her previous partner, Mr J (“Mr J”). There was no property settlement from that separation. The wife, subsequently, borrowed $90,000.00 by way of a mortgage to complete the building of the home on the B Street, Town C property.
(i)Between 2007 and 2011, the wife had tenants residing in the granny flat on the B Street, Town C property who paid her board.
(j)In or around 2008, the wife built a pergola (timber framed with a colour bond roof) on the B Street, Town C property. She retained a builder, Mr K, to construct the said pergola.
(k)In or around 2009, the parties started dating.
(l)In 2009, the parties commenced a romantic relationship. At the commencement of this relationship, the husband was living at the F Street, Town C property which he owned. At that time, the husband had the following liabilities:
(i)Mortgage on the F Street, Town C property of, approximately, $120,000.00;
(ii)A personal debt to his brother of, approximately, $30,000.00;
(iii)A Company L Finance debt of, approximately, $7,000.00; and
(iv)Credit card debts of, approximately, $2-3,000.00.
(m)In 2009, the wife was working as an administrative officer at Employer M and, on a casual basis, as a manager of a local business. The husband was on a disability pension and working as an artist at the Company N in Town O. At this time, the mortgage on the B Street, Town C property was, approximately, $67,000.00.
(n)In or around 2010, the wife said that she paid about $2,500.00 for the registration of the husband’s Ute and for its required pink slip as it was then unregistered.
(o)Between 2009 and 2013, the wife paid for most of the food, utilities and household expenses when the husband was staying at the B Street, Town C property. The wife also met the majority of the parties’ expenses pertaining to holidays, mortgage, utilities, and upkeep of the said property.
(p)In or around December 2010, the wife said that the husband, as conceded by him, started spending increasing times at the B Street, Town C property which then occurred at times between 1 to 6 nights a week. The husband confirmed that, by late 2010, he was spending most evenings at the B Street, Town C property. He continued returning to the F Street, Town C property during the day to work on his art and to spend time with his son, Mr E. When the husband and Mr E stayed with the wife at the B Street, Town C property, Mr E shared Mr G’s bedroom. The Court accepts that, by December 2010, the parties were then living in a committed de-facto relationship.
(q)In or around December 2010, the B Street, Town C property was formally valued at $415,000.00, as per the historic valuation conducted by Company P.
(r)In or around 2011, the wife’s tenants, who resided in the granny flat on the B Street, Town C property, vacated the property. The wife, subsequently, cleaned and repainted the flat. The wife asserted that the husband said to her: “I need some privacy and quiet so I can work and plan”. As and from that date, until about 2018, the husband used the granny flat as his workshop and study area as he was also attending some university studies. He did not pay the wife any board/rent for this use until about 2018.
(s)In or around August 2011, the wife said that a work opportunity arose for the husband as a transport worker. The wife provided him with $5,000.00 for medical tests and to obtain his transport licence and the husband began full-time work as a transport worker at Employer Q in Suburb R earning, approximately, $30,000.00 per annum.
(t)In late 2011, the husband complained to the wife that he was struggling with debt. The wife said: “Why don’t you contact the bank and consolidate your debts, so you have one repayment?”. The husband had a meeting with Company S Finance and was advised that he did not have enough equity or income for debt consolidation and that he would be better off selling his house (that is the F Street, Town C property).
(u)Between 2011 and 2017, the wife made some 13 drawdowns on the B Street, Town C mortgage, totalling, approximately, $39,700.00 to meet payments for, predominantly, household expenses, credit card debt and holidays for the husband, herself and the parties’ children.
(v)In or around February 2012, the husband listed the F Street, Town C property for sale.
(w)In 2012, Mr E lived at the B Street, Town C property “on and off” for the year while his mother travelled around Australia. The wife said that she converted her library at the B Street, Town C property into a bedroom for Mr E.
(x)From April to September 2012, the wife said that the husband repaid her $2,220.00 of the $7,500.00 advanced to him by her, as referred to in paragraphs (n) and (s), above.
(y)In or around December 2012, the wife said that she purchased the husband a new mobile phone and included his mobile plan on the family bundle which she paid for until November 2018. The wife said that she also made payments for Mr E’s school uniforms.
(z)In or around May 2013, the husband sold the F Street, Town C property for $260,000.00 and received, approximately, $142,887.00 to $142,990.00 from its net sale proceeds. The wife asserted that her employer had also acted as the agent for the sale with no commission payable by the husband.
(aa)Following the sale of the F Street, Town C property, the husband and Mr E moved into the B Street, Town C property on a full-time basis. The husband moved in his possessions, some furniture, a BBQ, washing machine and art supplies and tools, such as chain saws, drop saws and drills. The wife said that the husband, at this time, had the following assets and liabilities:
(i)The net sale proceeds of the F Street, Town C property, as referred to in paragraph (z), above:
(ii)A liability of $30,000.00 in debt to his brother;
(iii)A liability of $2,500.00 in debt to Company L Finance; and
(iv)A liability of $3,000.00 on his Credit Cards debt.
His net asset position was then, in the order of some $107,387.00.
The wife said that, at this time, she had the following assets and liabilities:
(i)An asset of $430,000.00 being the B Street, Town C property;
(ii)A liability of $50,978.00 being a debt secured by way of a mortgage over the B Street, Town C property;
(iii)Superannuation of $11,180.00;
(iv)A motor vehicle of $3,000;
Her net asset position was then, in the order of some $393,200.00.
(bb)Following the sale of the F Street, Town C property, the husband purchased a road bike for $9,500.00. The wife said that the husband told her: “I do not want any debts or responsibilities”. He then insisted on paying the B Street, Town C mortgage, saying “You have been so kind and generous to me and Mr E, I want to pay out your mortgage”. The husband deposited $50,500.00 into the wife’s mortgage. The wife asserted that, at this time, the mortgage was less than $51,000.00. The husband also closed his NAB account which was in joint names with his former partner. The parties then opened a joint account and the husband deposited $40,000.00 into that account. From this, the following expenses, totalling between $37,910.00 and $39,910.00 were paid:
(i)The wife used somewhere between $26,500.00 and $28,500.00 to install a swimming pool on the B Street, Town C property, as referred to below;
(ii)The wife used $3,745.00 for drainage work on the B Street, Town C property;
(iii)The husband used $2,045.00 for accessories for his motor bike;
(iv)The husband used $1,120.00 on a contract with a transport student; and
(v)The parties jointly used $4,500.00 on miscellaneous living expenses.
(cc)In or around May 2013, the husband quit working at Employer Q and, thereafter, had no income from employment for the next 3 months.
(dd)In 2013, the husband poured and smoothed concrete at the rear of the B Street, Town C property over an area of, approximately, 4 square metres and also contributed $40,000.00 to improvements to the B Street, Town C property, including somewhere between $26,500.00 and $28,500.00 for the installation of a pool (as referred to in (bb), above). The B Street, Town C property was, formally, valued at $430,000.00 as per the historic valuation of Company P.
(ee)In or around 2013, the husband commenced work at the Employer T for a period of some 4 months.
(ff)From 2013 to 2018, the wife said that she undertook all of the cleaning, cooking and laundry for the household. Further, she asserted that she also undertook the ironing of Mr G, Ms H and Mr E’s school uniforms and prepared their lunches. The wife undertook grocery shopping and paid for the majority of the parties’ household living expenses and paid for holidays for the family.
(gg)From 2013 to 2016, the wife said that the husband undertook employment and sold some of his artworks whereby he received in total revenue from those sales, approximately, $16,315.64. The wife asserted that she, therefore, financially supported the husband, Mr E, herself and her children given her greater income during that period.
(hh)From 2013 to date, the wife has worked part-time as a Manager at Employer M earning between $59,000.00 and $66,000.00 per annum, including Government benefits.
(ii)In December 2014, the wife redrew a further $45,000.00 from the mortgage on the B Street, Town C property to purchase a new Motor Vehicle 1 for the family. This vehicle was used by both the husband and the wife in terms of moving the family around.
(jj)In 2014, 2015, 2016 and 2018, the wife said that she paid for Mr E’s school fees, totalling some $7,952.28.
(kk)In 2015, the wife said that the husband undertook small modifications to the front yard of the B Street, Town C property.
(ll)In mid-2015, Mr E stopped living at the B Street, Town C property.
(mm)In 2015, the husband had an exhibition of his artworks.
(nn)In 2016, the wife said that the husband spent a few weeks digging and pouring a concrete pit in the front yard of the B Street, Town C property to prevent its flooding. The wife’s brother, Mr U, assisted on one day to pour and to smooth the concrete and the wife paid for the concrete itself. The husband maintained that he also poured and smoothed the concrete. The husband, subsequently, installed a pump to the pit to pump water out of it.
(oo)In January 2016, the husband said that he “home schooled” the wife’s child, Ms H, for 2 School terms. The wife agreed that he had “home schooled” Ms H but said that this was for one (1) term in a supervisory role for a couple of hours 3 to 4 days a week and that, on 6 June 2016, Ms H, returned to school.
(pp)In 2016, the husband commenced work as a security officer at the Employer V on a casual basis.
(qq)Between 2016 and 2018, the wife said that the husband started contributing more financially to the household but still, significantly, less than her.
(rr)In August 2017, the wife said that the parties separated. The husband remained living in the granny flat on the B Street, Town C property for 2 months. The wife painted the inside of the B Street, Town C property without any assistance from the husband.
(ss)In October 2017, the parties reconciled. The wife said that she paid $11,466.72 for the parties’ holiday in the Region W.
(tt)In 2018, the wife said that she installed solar panels and paid $4,000.00 for them. The wife also said that she painted the exterior of the B Street, Town C property and the husband did not assist in those works.
(uu)In August 2018, the wife said that the parties again separated and the husband moved back into the granny flat at the B Street, Town C property.
(vv)In September 2018, the wife said that the husband started paying her $500.00 per month in board for the granny flat, inclusive of utilities, internet and water expenses.
(ww)Between August and November 2018, the parties attempted to reconcile their relationship but were unsuccessful.
(xx)In November 2018, the husband said that the parties separated on a final basis and the husband moved into the granny flat at the B Street, Town C property. The wife said she arranged a new sim card for the husband so that he would be able to pay for his own mobile telephone calls.
(yy)In December 2018, the wife said that the mortgage over the B Street, Town C property was extinguished.
(zz)In 2019, the wife said that she remodelled the guttering under the pergola on the B Street, Town C property to address drainage issues and spent, approximately, $10,000.00 on improvements and maintenance to the B Street, Town C property.
(aaa)In March 2019, the wife said that the pump which the husband had installed into the pit on the B Street, Town C property failed, short circuiting the house.
(bbb)In May 2019, the wife said that she had installed a new pump on the B Street, Town C property.
(ccc)In May 2019, the wife said that the husband then stopped paying any board for his use of the granny flat on the B Street, Town C property and did not further contribute to the household.
(ddd)In September 2019, the husband received a Notice to Terminate Tenancy Agreement from the wife’s previous solicitor.
(eee)In October 2019, the wife said that the husband moved out of the granny flat, taking his personal belongings, some furniture and a washing machine. The wife asserted that the husband also took her laptop and removed the window coverings and the shower curtain from the granny flat. The wife asserted that, following the husband’s relocation, she paid to repaint and patch the walls of the granny flat and conducted other repairs costing, approximately, $2,000.00.
(fff)The husband is, currently, employed as a security officer on a full-time basis.
(ggg)The husband is living in rental accommodation in Town X, NSW.
(hhh)The wife is, currently, receiving a carer’s allowance for care services rendered by her to her mother.
(iii)The wife is living at the B Street, Town C property with her daughter, Ms H.
THE LAW
The Jurisdictional Facts
In order for the Court to have the jurisdiction to make property orders under the Act in respect of de facto relationships, there are 2 jurisdictional facts that must be established and those facts must be established on the evidence before the Court. Those jurisdictional facts are contained in s. 4AA and s. 90SB of the Act.
First, the relationship must have broken down after 1 March 2009 (see Fenton & Marvel [2013] FamCAFC 132). Secondly, the relationship must have subsisted for at least 2 years.
The Court accepts the following:-
(a)On both the husband’s and the wife’s case, the parties’ relationship commenced around the end of 2010. The husband maintained that, at that time, he was spending the majority of the nights on a weekly basis with the wife at the B Street, Town C property, sharing that residence with her, notwithstanding that he did not move there on a fulltime basis until about May 2013. The Court accepts that there was a mutual commitment to a shared relationship by December 2010.
(b)On both the husband’s and the wife’s case, the parties’ relationship broke down in 2018; in around August 2018 on the wife’s evidence and in November 2018 on the husband’s evidence. Little turns on that 3 month differential and the Court accepts that the parties’ relationship had broken down at least by the beginning of December 2018.
(c)The parties’ relationship was one that meets the definition of a “defacto relationship as prescribed by s.4AA of the Act.
(d)The de facto relationship, therefore, existed for “at least 2 years”, with the actual length of time being in the order of some 8 years from about December 2010 to December 2018.
(e)The parties were, ordinarily, resident in the State of New South Wales during the course of their de-facto relationship.
The approach to be taken
The decision of the High Court of Australia in Stanford & Stanford [2012] HCA 52 (“Stanford”) makes it clear that the starting point for the exercise of the Court’s jurisdiction under s.79 (and, relevantly here, s.90SM) of the Act to alter the property interests of parties to the marriage/relationship is the identification of the existing legal and equitable interests of each of the parties in their property.
The plurality in Stanford warned against conflating the requirements of section 79(2) and section 79(4) and highlighted that the Court must first consider whether it is just and equitable to make an order rather than consider whether the orders are just and equitable in the four steps, as referred to below.
In Stanford the High Court warns at paragraph [40] of its judgment that:
Third, whether making a property settlement order is "just and equitable" is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised "in accordance with legal principles, including the principles which the Act itself lays down"[28]. To conclude that making an order is "just and equitable" only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
The Court accepts that, in all the circumstances of this case, it is just and equitable that there should be a property adjustment order in terms of the principles set out in Stanford, as referred to below.
The preferred approach then to the determination of an application under s.90SM of the Act follows the procedure as set out by the Full Court of the Family Court of Australia in the case of Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143 at p 39, which sets out the following 4 inter-related steps:
1. Identify and value, as at the date of hearing, the parties’ property, liabilities and financial resources;
2. Identify and assess the contributions (“the first limb – the contribution factors”) of the parties and express them as a percentage of the net value of the property (examined on either a global approach or an asset by asset approach, depending on the circumstances of the case);
3. Identify and assess the other factors relevant (“the second limb – ongoing needs and effect of orders”) including, the matters referred to in s.90SF and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
4. Consider the effect of the above and resolve what order is just and equitable in all the circumstances of the case.
In undertaking the first step outlined above, the Court must act with reasonable precision in both identifying and valuing the property pool. However, in the subsequent steps, the Court is not required to assess contributions with mathematical precision: G & G (1984) FLC 91-582 (Nygh J).
In Mallett & Mallett (1984) FLC 91-507, the High Court of Australia held that there was no rule or principle that the property built up by the parties’ joint efforts should be assumed as being equally contributed to.
Section 90SM(4) of the Act [Matters to be taken into account]
In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
a)the financial contribution made directly or indirectly by or on behalf of a party to the de-facto relationship or a child of the de-facto relationship to the acquisition, conservation or improvement of any of the property of the parties to the de-facto relationship or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de-facto relationship or either of them; and
b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de-facto relationship or a child of the de-facto relationship to the acquisition, conservation or improvement of any of the property of the parties to the de-facto relationship or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de-facto relationship or either of them; and
c)the contribution made by a party to the de-facto relationship to the welfare of the family constituted by the parties to the de-facto relationship and any children of the de-facto relationship, including any contribution made in the capacity of homemaker or parent; and
d)the effect of any proposed order upon the earning capacity of either party to the de-facto relationship; and
e)the matters referred to in subsection 90SF(3) so far as they are relevant; and
f)any other order made under this Act affecting a party to the de-facto relationship or a child of the de-facto relationship; and
g)any child support under the Child Support (Assessment) Act 1989 that a party to the de-facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de-facto relationship.
Section 90SF(3) of the Act [Matters]
The matters to be so taken into account are:
a)the age and state of health of each of the parties to the de-facto relationship;
b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
c)whether either party has the care or control of a child of the de-facto relationship who has not attained the age of 18 years;
d)commitments of each of the parties that are necessary to enable the party to support:
(i).himself or herself; and
(ii).a child or another person that the party has a duty to maintain;
e)the responsibilities of either party to support any other person;
f)subject to subsection (4) the eligibility of either party for a pension, allowance or benefit under:
(i).any law of the Commonwealth, of a State or Territory or of another country; or
(ii).any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia, and the rate of any such pension, allowance or benefit being paid to either party;
g)a standard of living that in all the circumstances is reasonable;
h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
k)the duration of the de-facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
l)the need to protect a party who wishes to continue that party's role as a parent;
m)if either party is cohabiting with another person, the financial circumstances relating to the cohabitation;
n)the terms of any order made or proposed to be made under section 90SM in relation to:
(i).the property of the parties; or
(ii).vested bankruptcy property in relation to a bankrupt party;
o)the terms of any order or declaration made, or proposed to be made, under this Part in relation to:
(i).a party to the subject de-facto relationship (in relation to another defacto relationship); or
(ii).a person who is a party to another de facto relationship with a party to the subject de-facto relationship; or
(iii).the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv).vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
p)the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:
(i).a party to the subject de facto relationship; or
(ii).a person who is a party to a marriage with a party to the subject de facto relationship; or
(iii).the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv).vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
q)any child support under the Child Support (Assessment) Act 1989 that a party to the subject de-facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de-facto relationship; and
r)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
s)the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de-facto relationship; and
t)the terms of any financial agreement that is binding on a party to the subject de-facto relationship.
GENERAL
It must be noted that an entitlement to make an application pursuant to s.90SM of the Act does not create any legal or equitable right in property. Property rights come into existence only upon the making of an order: Re Chemaisse; Federal Commissioner of Taxation (Intervener) (1990) FLC 92-133.
SUPERANNUATION
The Full Court of the Family Court of Australia’s decision in C & C (2005) FLC 93-220 also requires the Court to consider the parties’ superannuation interests as a separate species of property.
Where the parties have superannuation, the preferred approach for the Court to adopt, as discussed in C & C (2005) FLC 93-220, is to prepare, as a separate pool, a list of the superannuation interests, and where a splitting order is sought under Part VIIIB of the Act (or if no such order is sought, it being prudent to do so), carry out the following exercise:
(a)Value the superannuation interest/s (according to the Regulations, if a splitting order is sought, or if no such order is sought, then according to the Regulations or otherwise).
(b)Identify and assess the contributions under s.90SM(4)(a),(b) & (c), (“the first limb – the contribution factors”) of the parties and express them as a percentage of the superannuation interest/s (examined on either a global approach or an interest by interest approach, depending on the circumstances of the case);
(c)Identify and assess the other factors relevant under s.90SM(4)(d)(e),(f) & (g), (“the second limb – ongoing needs and effect of orders”) including, because of s.90SM(4)(e), the matters referred to in s.90SF(3) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
(d)Consider the effect of the above and resolve what order is just and equitable (in relation to the parties’ property and superannuation interests) in all the circumstances of the case.
C & C (2005) FLC 93-220 also set out in the context of a Court’s consideration of the matters set out in paragraph 41 (b) and (c) above, the following relevant matters:
The relationship between years of fund membership and cohabitation, actual contributions made by the fund member at the commencement of the cohabitation (if applicable), at separation and at the date of hearing; preserved and non-preserved resignation entitlements at those times; and any factors peculiar to the fund or to the spouse’s present or future entitlements under the fund.
As the Full Court of the Family Court of Australia said in D & D (2006) FLC 93-256, in carrying out the exercise referred to in paragraph 41(d) above, the Court must also have specific regard to a consideration of the mix of superannuation interests and other property with which each party will be left as a result of the Court’s proposed orders. It may be that even though no party seeks a splitting order, it will become clear to the Court that the only just and equitable order which can be made in a particular case, will be for such a splitting order to be made. The Court must then afford the parties an opportunity to be heard in relation to that, and provide to any trustee of the superannuation fund, appropriate notice and a formal valuation of any superannuation interest under the Regulations may be required.
Notwithstanding the preferred approach, the Full Court of the Family Court of Australia in C & C (2005) FLC 93-220 also stated that the Court had a discretion to include a superannuation interest as an item of property (whether or not a splitting order is sought) and not consider it as part of a separate pool. The Court indicated that such an approach could be adopted, where:
(a)The parties agreed; or
(b)The superannuation interest itself fell within the definition of property contained in s.4(1) of the Act; or
(c)If the interest did not fall within the definition of property, it was of small value when compared to the value of the items of property; or
(d)There are features about the superannuation interest which make this appropriate.
The Court accepts that the parties have reached an agreement that neither seeks an adjustment from the other as to superannuation and, accordingly, the superannuation of each party can be dealt with within the one pool of property plus superannuation, totalling $993,088.00, as referred to in paragraph 46, below.
WHAT WERE THE PARTIES’ PROPERTY, LIABILITIES, SUPERANNUATION AND FINANCIAL RESOURCES AT THE TIME OF HEARING?
The following schedule contains all items which the parties have each identified as their property, liabilities, superannuation and financial resources:
PROPERTY H/J/W VALUE $ Non-superannuation 1 The B Street, Town C property W 905,000.00 2 Add backs 0 LIABILITIES 3 Liabilities 0 Superannuation 4 Super Fund 1 W E 51,141.00 5 Super Fund 2 H E 36,947.00 TOTAL NET PROPERTY PLUS SUPERANNUATION 993,088.00 FINANCIAL RESOURCES 6 Financial resources 0
In terms of the parties’ agreement, the Court has not included the following:
(a)The value of the parties’ household contents, monies standing to the credit of any bank accounts, motor vehicles and credit card debts which the parties have agreed will, otherwise, remain where they are.
The values of each of the various items of property, superannuation and liabilities referred to in the above balance sheet are not in contention.
While liabilities have been disclosed as $NIL in the balance sheet, the Court notes that the parties are likely to have liabilities in respect of their legal costs for the conduct of these proceedings.
WHAT WERE THE PARTIES’ FINANCIAL (DIRECT AND INDIRECT) AND NON-FINANCIAL (DIRECT AND INDIRECT) CONTRIBUTIONS?
The Court must then consider all the contributions (direct and indirect), both financial and non-financial to the acquisition, conservation and improvement of the parties’ property, superannuation and financial resources as well as to the welfare of the family before and after separation. The Full Court of the Family Court of Australia said in Aleksovski & Aleksovski (1996) FLC 92-705 (at 83,437):
It is therefore necessary…[to] weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such assessment into a percentage of the overall property of the parties.
The Court must consider the contributions in an overall sense both before and after separation: Sippel & Sippel [2004] FamCA 201.
One matter the Court must consider is whether to adopt a global or asset-by-asset approach to contribution. In the case of Norbis & Norbis (1986) 161 CLR 513 at 534-5, the High Court of Australia held that either approach is available to the Court in part or in whole. The discretion as to which approach is to be adopted should be exercised having regard to the facts of the particular case. The Court adopts a global approach, here.
As the Full Court of the Family Court of Australia said in Parshen & Parshen (1996) FLC 92-720:
In the absence of evidence to the contrary, it should be inferred in proceedings pursuant to… s.79 [of the Act] that monies howsoever received by a party during the course of the parties cohabitation are used by that party for the benefit of the family unit [and] ….thus constitute a financial contribution by the party who received the monies.
There is no requirement that, in assessing contributions, property contributed must be in existence or its value traceable to other property in existence at the time of the hearing.
Initial
The husband had the following items of property at the commencement of the parties’ relationship:
(a)The F Street, Town C property $NK
(b)Superannuation $NIL
(c)Personal effects and items of furniture $NK
The husband had the following liabilities at the commencement of the parties’ relationship:
(a)Mortgage on the F Street, Town C property $NK (noting that the husband maintained that the mortgage was in the order of some $120,000.00)
(b)Personal debt to his brother $30,000.00
(c)Company L debt $7,000.00
(d)Credit card debt $2-3,000.00
While the Court notes that the value of the F Street, Town C Property, at the commencement of the parties’ relationship, is unclear, the husband submitted that this property had been purchased in 1999 for, approximately, $150,000.00 and was sold in 2013 for, approximately, $260,000.00.
The above initial contributions of the husband are not contentious and the values attributed by him are not, substantially, contradicted by the other party.
The wife had the following items of property at the commencement of parties’ relationship:
(a)The B Street, Town C property $415,000.00
(b)Mortgage on the B Street, Town C property $59,335.00
(c)Superannuation $9,049.00
(d)Motor vehicle $3,000.00
(e)Personal effects and items of furniture $NK
The above initial contributions of the wife are not contentious and the values attributed by her are not, substantially, contradicted by the other party.
The husband, readily, conceded that the B Street, Town C property was an established and superior structure in comparison to the F Street, Town C property. Further, during cross-examination, he conceded that, at the commencement of the parties’ relationship, he was residing in a Colour-bond shed at the F Street, Town C property and that he and Mr E (who was living with him on a part time/50/50 basis) did not have a “proper” house to live in, at that time. The husband then commenced to spend increasing nights at the wife’s home but would return to his property during the day. The husband agreed that the F Street, Town C property would have needed a development application and for a home to be built on it to make it habitable. At the commencement of the parties’ relationship, the Court accepts that the husband did not have available to him sufficient financial resources or the ability to borrow sufficient monies to develop the F Street, Town C property, in that regard.
The Court finds that the initial contributions of the wife at the commencement of the parties’ relationship were significantly in excess of the initial contributions of the husband.
The weight to be afforded to initial contributions is, comprehensively, discussed in Pierce & Pierce (1999) FLC 92-844 at 85,881 and, in particular at [28], where the Full Court of the Family Court of Australia said:
In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase of the matrimonial home.
The wife’s initial contribution of the B Street, Town C property now provides some 91% of the parties’ net property and superannuation, as referred to in paragraph 46, above. The Court is satisfied that, accordingly, the majority of the parties’ current property has been accumulated as a result of the wife’s initial contributions and the Court gives this factor significant weight in assessing the parties’ respective contributions, which weighs in favour of the wife.
Other contributions
It is important to note that there should not be a double counting of contributions. If a party is given credit for a greater initial contribution then that should not be included again as part of any contribution made after that date.
In addition to the property which each of the parties, initially, brought, they each received their earnings from employment during the course of their relationship.
The Court accepts that the wife was in remunerative employment and in the period 2013 to 2018, appears to have earnt, on average, an income of between $59,000.00 and $66,000.00 per annum, inclusive of both her working income and government benefits received. The husband conceded that, in the period 2010 to 2019, the wife’s total taxable income was in the order of some $292,888.00 and that she was bringing in more money than him. The Court notes, however, that the husband’s summation of her total taxable income reflected a lower level of income as it did not include the government benefits she received during that period. In that regard, the wife was in receipt of significant government benefits including Family Tax Benefits, being parenting benefits and a carer’s allowance in respect of the care provided on account of her mother.
The Court accepts that, from 2010 to 2019, the husband appears to have earnt, on average, an income of, approximately $27,870.80 per annum, ranging from $11.00 to $78,473.00, with a total taxable income over that period of, approximately, $278,708.00. The husband also received government benefits for periods of time when he was unemployed and whilst studying. The Court accepts that there was little evidence as to the quantum of these government benefits over that period, although in 2015/2016 period, he appears to have received, approximately, $15,000.00 per annum in such benefits. Nevertheless, the Court accepts that while the husband contributed his income from his employment and benefits received towards the family’s expenses it was at a, significantly, lower level than that contributed by the wife during most of the period of their relationship, given his work history over that period which reflected times of sporadic employment and times of unemployment, noting that, in the period 2010 to 2011, he had $nil taxable income, being then on a disability pension and artworks for sale. The husband conceded that he had some mental health issues in terms of the receipt of a pension. In or around August 2011 until late 2013, he was employed as a transport worker for Employer T on a casual basis but was then unemployed for 4 months (May to August) in 2013. Between December 2013 and August 2016, the husband was unemployed and again received income from selling his artwork together with his receipt of government benefits during this period. His taxable income for 2016 was $nil. For the period following 2016, the husband’s income increased as a result of him obtaining full-time employment as a security officer at the Employer V. The husband conceded, in cross examination, that he was unemployed for more than half of the parties’ relationship. The Court accepts that the husband’s income from his employment with the Employer V was, essentially, available for only the last 2 years of the parties’ relationship of some 8 years. This weighs against him.
The Court accepts that the wife’s income from her remunerative employment exceeded that of the husband’s for most of the parties’ relationship. In that regard, the wife maintained that she had utilised that income and made, significantly, greater contributions towards the parties’ household expenditures, as was, appropriately, conceded by the husband. The husband agreed that it was the wife who was the “financial” person in their relationship. The husband conceded that, at the commencement of the parties’ relationship, he had little by way of assets and financial resources to meet his own personal and household expenses and, indeed, this did not permit him to restructure or consolidate his debts as the wife had wished he do, as referred to in paragraph 71, below. However, in terms of the parties arguing over what could be described as minutiae, the husband asserted that the wife had more children living with her at the time, which would have then increased her expenses and that, as a result, she should have been more liable for them than him, in any event. This assertion did the husband little credit, particularly, in light of the length of the parties’ relationship.
EVIDENCE
The wife’s case was that the B Street, Town C property was her property and that the husband should obtain no interest in it at all. She discounted any expenditure of money made by him and any of his work efforts around the B Street, Town C property, as referred to in paragraph 79 and following, below.
In terms of the husband’s financial expenditure on the B Street, Town C property, the wife’s position was that she thought that the husband should have consolidated his debts and purchased an investment property for himself and his family. While that was the wife’s position, it would appear that the husband did not implement this, but rather his position was that he had decided to sell his property, being the F Street, Town C property, and that he would then place a significant portion of the net proceeds of sale into the B Street, Town C property as, he believed, that he and the wife were in a long-term committed relationship and that this was the best use of his monies, at the time. The wife maintained that while she acknowledged the husband had placed funds from the sale of the F Street, Town C property into her then mortgage account she said he did so on the basis of either a gift or as repayment to her for her generosity in looking after and providing for him and his son Mr E and that she had made it clear to him that the B Street, Town C property was her home and that it would belong to her children upon her death. The wife maintained that any payments made by the husband, in this regard, were not made with the intention of acquiring the B Street, Town C property or any interest in the same. The wife asserted that the husband had stated in a conversation that his son, Mr E: “has plenty of grandparents and he will be ok” and that “I [the husband] don’t want anything from [her] house”. The husband disputed this conversation and maintained that the wife’s evidence was contradictory in terms of her description of his payments into the mortgage as being either a “gift” or by way of some form of “compensation”, as referred to above. The husband also asserted, but without any supporting independent evidence, that the wife had said to him that she would put his name onto the title of the property once her children had turned 18 years of age. There was no explanation as to why she would do that at that point in time. The Court does not accept the husband’s evidence about that assertion. The wife maintained that the husband had not paid any commission on the sale of the F Street, Town C property because it was sold through a company that she worked for and that as a result of her position he had received a financial benefit. The husband agreed that no commission had been paid by him in respect of this sale.
While both parties accepted that the Court is not required to carry out an accounting or audit function in respect of their expenditures and contributions, they each sought to provide various schedules and accounting records for the funds expended by each, in that regard.
The wife maintained that, prior to her relationship with the husband, she had not drawn down on her mortgage. She also stated that, since her separation from the husband, she had not drawn down on that mortgage which, apparently, now stands at about $5.00 noting that, for the purposes of the parties’ balance sheet, their liabilities have been agreed at $nil.
The wife maintained that, during the course of the parties’ relationship, and, particularly, between 2011 and 2017, she had drawn down on her mortgage secured over the B Street, Town C property sums totalling, approximately, $84,700.00. Of this sum, $45,000.00 was drawn down in December 2014 which related to the purchase of a new car. The husband conceded that this car had been used as a family car by the parties as he had driven a 2-door Ute. His evidence was that, during the parties relationship, he had swapped Utes from a 2-door to a 4-door Ute. The husband’s utility was, at times, used to teach the children to drive. The Court accepts that, at an early point in the parties’ relationship, when the husband was not in remunerative employment, the wife had paid monies towards the husband’s telephone plan, for the registration of his Ute and to carry out repairs to enable that registration to be effected. Further, the wife’s drawdowns, between 2011 and December 2014, totalling $16,500.00 related to expenses for a new lounge and cash for living expenses, credit card payments, registration and repairs to the wife’s car, insurance payments and $4,500.00 for holidays to Queensland. From 2014, the drawdowns totalled $23,200.00 (of which $4,700.00 related to school fees for all 3 children and, approximately, $16,500.00 to holidays to the Region W (twice) and to Country Y and $2,000.00 for credit card payments). The total of the drawdowns of $16,500.00 and $23,200.00, being $39,700.00.
The husband maintained that from the net sale proceeds of the F Street, Town C property he had paid off his car loan and then paid the sum of $50,500.00 directly into the wife’s mortgage secured on the B Street, Town C property. Further, he maintained that by making this contribution he had then reduced the ongoing mortgage repayments from $550.00 per fortnight to $159.00 per fortnight. The Court accepts that effect. Further, the husband maintained that $40,000.00 from the net sale proceeds of the F Street, Town C property went into a joint account in the parties’ names and was utilised by them in terms of funding various improvements to the B Street, Town C property, including $26,500.00 - $28,500.00 for the installation of a pool on that property and payment for various materials used by him in the installation of the pergola, a concrete slab, landscaping and masonry work.
The wife conceded that the husband paid $50,500.00 into the B Street, Town C property mortgage and $32,245.00 for the swimming pool and other drainage works. The wife noted that, apart from the lump sum payments, there was no evidence provided by the husband that he had contributed to the mortgage or utilities of the B Street, Town C property. However, the wife contended that the husband’s contribution of $50,500.00 should be seen in the light of her drawdowns, as referred to in paragraph 74, above, from the mortgage secured over the B Street, Town C property which had been utilised, substantially, for the benefit of the parties in terms of meeting their household expenses, credit card debt, holidays and payments made on behalf of their respective children. Notwithstanding the wife’s contention, her drawdowns had then increased the mortgage to a level greater than that which existed following the husband’s payment to reduce the mortgage.
The Court accepts, in terms of the wife’s submissions, that she had provided the B Street, Town C property as accommodation for the husband for a period of in excess of 8 years and for his son, Mr E, for up to a period of 6 years. The husband conceded that the wife had provided this accommodation for his and Mr E’s benefit.
The Court accepts the evidence of the wife that she had met the ongoing mortgage, utility and rate expenses for the B Street, Town C property, together with her making substantial contributions to the parties’ household expenses including expenses relating to the children of each of the parties and the funding of their family holidays.
The husband maintained that he had also carried out significant renovations and improvements to the B Street, Town C property including maintaining the house and yard, repairing damaged fixtures, works relating to flood mitigation and drainage remediation, the installation of a pergola and concrete slab, landscaping works including the installation of sandstone garden edges, an irrigation system, the installation of turf, the installation of a clothes line and modifying the main fame posts for the patio with masonry work. The husband, appropriately, conceded that the wife had also assisted in some digging and in laying the turf at both the back and front of the property. The husband gave evidence about dealing with a flooding issue in 2012/2013 and using sandbags (and plastic bags filled with sand) to prevent flooding. The Court accepts his evidence, in that regard, notwithstanding the wife maintained that there were no sandbags. The husband also gave evidence about digging a trench in 2013 to alleviate flooding issues. The Court accepts the husband’s evidence about the amount of work it took him (in days rather than hours) to level the property so as to dig the drainage systems.
In terms of his work and general improvements to the property (drainage, landscaping and the construction of a pergola on the side), the wife acknowledged that the husband had carried out modifications to an existing awning above the pool pump, had dug 2 trenches, poured a concrete pit (with the assistance of her brother) but she maintained that the drainage systems installed by him did not work, the landscaping was minimal and the construction of the pergola replaced an existing pergola which was waterproof with one which let water in. The husband, on the other hand, maintained that if the drainage system did not, currently, work, it was not as a result of his involvement because the drainage system worked when he left the property but as a result of the wife failing to maintain the pumps post separation. He, further, maintained that the pergola was, appropriately, constructed and that he had utilised the wood beams from the old pergola in the landscaping works, thus saving costs. The wife maintained that the old pergola did not need to be dismantled to utilise the wood in the landscaping works. The wife agreed that the husband had completed some modifications to the front yard, including moving the letterbox and working on some garden beds, however, she maintained that these were only small modifications as the front garden area had already been landscaped prior to the commencement of the parties’ relationship. The wife also contended that, in terms of some of the costs associated with these works, such as rubbish removal, she had met them and that she, herself, had also assisted with some of the works including helping with installing the irrigation system and laying turf. The Court notes that while the parties were in substantial dispute about these matters, there was no independent evidence called from any, relevantly, qualified expert, such as a quantity surveyor in terms of the assessment of any times taken and costing for such times in relation to the drainage works and landscaping on the B Street, Town C property to be able to resolve these contested issues. The Court also accepts that there was no relevant evidence as to the effect that any of these works had on the value of the B Street, Town C property, if at all.
The wife was critical of every aspect of the husband’s contributions in terms of his Do-It-Yourself (“DIY”) work efforts. It was put to her that she was seeking to minimise his contributions and she responded in the negative but maintained that it was he who was trying to maximise his own contributions. She was critical of him in leaving a pile of dirt in the front of the B Street, Town C property which was required to be removed by a truck on 14 April 2016, as was organised by her. The husband agreed that this pile of dirt had been left on the property but was unsure as to how long it was there and when it was removed. The wife’s criticism of the husband’s DIY work in this regard, similarly, gave her no credit.
The husband asserted that, during the course of the parties’ relationship, the wife’s 2 children from her previous relationship lived with the parties on a full-time and the husband undertook home-schooling for the wife’s daughter, Ms H, in 2016 for Term 1 and Term 2. The husband later changed his evidence and confirmed that he had undertaken home schooling with Ms H for only one (1) term as had been put to him by the wife during cross-examination. The husband also agreed that he had not quit his employment to assist with Ms H’s home schooling.
The husband asserted that the parties had jointly met 100% of the children’s private school fees and agreed that they had also met 50% of his son’s private school fees.
The wife asserted that the provision of accommodation for part of the period between 2010 and 2013, and the entirety of the period from 2013 and 2018 was a substantial non-financial contribution made by her. In that regard, she also noted that she provided accommodation for Mr E (the husband’s son from a previous relationship) throughout the relationship. The husband conceded that Mr E resided with the parties for approximately 2 years between 2013 to mid-2015 on a 50% basis. The husband agreed that there was no independent evidence of any payment by him of household expenses in the period 2010 to May 2013. The husband agreed that he had not paid any of the gas, electricity, water or mortgage expenses and had not paid any board. He maintained that he would “tip in” for grocery expenses. This position was, somewhat, inconsistent with his response to a question as to whether it was the wife who paid for most of the groceries when he stated: “I’m not sure”. He agreed that the wife had met most of the holiday expenses, utility expenses and mortgage expenses. When he obtained remunerative employment in 2011, he had met his own mortgage responsibilities. The husband also received financial assistance from the wife in terms of a payment to his credit card.
The wife maintained that between 2007 and 2011, she had tenants living in the granny flat on the B Street, Town C property and that those tenants paid her board. In 2011, when the tenants vacated the granny flat and following it being cleaned and repainted, the husband then occupied it up until the date of separation as a workshop and study. While the Court accepts that this “repurposing” benefitted the husband, as was conceded by him, it provided a space whereby he was able to produce art which was sold and gave rise to some income and allowed him to study which again provided him with some government benefits due to his studies. The husband paid the wife some board, as was conceded by her, following the parties’ first separation for the period from about September 2018 until May 2019, noting that the parties’ relationship had concluded by the end of 2018. The wife, however, asserted that what was received from these income sources was, substantially, less than that which she had received from her tenants by way of board/rental and that this was a foregoing of a potential income source which amounted to a non-financial contribution made by her. The quantification of that non-financial contribution is unclear and no independent evidence has been led so as to quantify it.
The Court accepts, as conceded by the husband, that the wife had undertaken most of the cooking. The Court notes that while, more likely than not, the parties’ children undertook some of the responsibilities for the cleaning of the B Street, Town C property, they would have done so under the direct supervision of the wife. The Court accepts her evidence that she also undertook most of the cleaning and laundry for the household, ironed the children’s school uniforms, including those of Mr E and prepared the children’s school lunches.
The Court accepts, notwithstanding the evidence of the wife, that the husband did undertake some outdoor maintenance including that of the yard and carried out some basic home repair work. The Court, further, accepts that it is likely that the parties, at times, shared the kitchen work with the wife predominantly doing, as she said, the cooking and the husband, predominantly, cleaning up afterwards including doing any dish washing. The Court also accepts the husband’s evidence that the parties’ children, when living with them, also assisted with the dishwashing.
The Court accepts that, following the parties’ separation by about the beginning of December 2018, the wife continued to pay the utilities and rates in relation to the B Street, Town C property and expended further monies of, approximately, $10,000.00 in remodelling the guttering under the pergola to address drainage issues and expended more monies in installing a new pump in the irrigation pit dug by the husband.
The Court is of the opinion that, excluding initial contributions, the parties’ non-financial contributions during their relationship were, largely, equal. The Court notes that the wife contributed more in terms of financing in the earlier parts of their relationship and the husband more in the later parts. While the husband was unemployed for nearly 2 years of their 8 year relationship he contributed what he could. Following separation, the Court is of the view that the wife’s financial and non-financial contributions in maintaining the B Street, Town C property exceeded the husband’s contributions. The wife has had the sole benefit and use of the unencumbered B Street, Town C property but as conceded by the husband she has solely met the costs associated with that property. The wife’s contributions, in that regard, permitted her to remain there without rental payment, while the husband had to obtain his own rental accommodation. There is no quantification before the Court as to the value of this differential, given that, more than likely, disparities existed in the properties where each lived.
While the wife had the benefit, post-separation of the B Street, Town C property, her financial statement filed on 22 April 2021 did not indicate the receipt of any rent/board from tenants of the former granny flat on that property. The wife conceded that she had not sought to rent that flat out but maintained that if she had, she may have generated, approximately, $200.00 per week. The wife, appropriately, conceded that an income of this magnitude may assist her in any refinancing of her mortgage and to raise any funds to effect a payment to the husband.
WHAT WERE THE PARTIES’ CONTRIBUTIONS TO THE WELFARE OF THE FAMILY, INCLUDING THOSE IN THE CAPACITY OF HOMEMAKER OR PARENT?
The wife maintained that, throughout the parties’ relationship, their assets and liabilities were largely kept separate, save for what she described as the “limited intermingling of finances” between 2013 and 2016 when the husband was, largely, unemployed. The wife maintained that this position was reflected when the husband, upon obtaining full-time employment in 2016, then opened up his own bank account into which he deposited his income and from which he maintained his own separate finances.
The wife maintained that she was the primary carer for her own children, Mr G and Ms H, throughout the parties’ relationship and that the husband’s account of his assistance in caring for her children and for Mr E were exaggerated. The husband, in cross-examination, accepted that, during the times of his employment as a transport worker, he would have to leave for work between 6.00am and 6.30am and then worked a combination of weekdays and weekends. In that regard, he also conceded that, on the days that he worked, the wife would prepare and take Mr E to school or took care of him on his working weekends. Nevertheless, the wife did acknowledge that the husband took the children to sporting activities but maintained that this was “nothing out of the ordinary”. The husband was, himself, critical of the wife in terms of her criticisms of his contributions, including their mutual enjoyment of sports with the children. The Court accepts that both parties took part in promoting the various activities of their individual children, including taking part in sports events. The husband coached children’s sports, as conceded by the wife, although she maintained that he only did so because Mr E was also enrolled in that class. The wife agreed that her children enjoyed some of the sporting activities with the husband but maintained that this was done “under duress”. This view gave her little credit.
Notwithstanding the wife’s criticisms of the quality of the parenting provided by the husband, the Court is satisfied that the husband did make some contributions towards the wife’s parenting of her children and the wife made some contributions towards the husband’s parenting of his child.
The husband submits that his contribution entitlement should be assessed at 32.5% to the wife’s 67.5%.
The wife submits that there should be no contribution adjustment in the husband’s favour to the effect that she would retain the totality of the value of the B Street, Town C property which represents some 91% of the parties’ net property and superannuation pool.
Weighing all of the factors relating to contributions, both financial and non-financial, the Court assesses the husband’s contribution at 12.5% and the wife’s at 87.5%, being $124,136.00 and $868,952.00 respectively.
NON-DISCLOSURE
The Court must make findings with respect to a party’s non-disclosure, not just his/her credit.
As set out in the Full Court of the Family Court of Australia’s decision in Weir & Weir (1993) FLC 92-338 (at 79,593):
[O]nce it has been established that there has been a deliberate non-disclosure … then the Court should not be unduly cautious about making findings in favour of the innocent party…
[T]he Court’s jurisdiction to make an order going beyond the identified property arises once there is sufficient evidence to support a finding that the party has not made a full disclosure of his or her assets.
The Court went on to say that:
This Court has pointed out in a line of cases leading up to the relevant decision of the Full Court in Black and Kellner (1992) FLC 92-287, that it is the duty of a party involved in property proceedings in this jurisdiction to make a full disclosure of their financial affairs.
In the matter of Luciano (2000) FamCA 401 (non-reportable), O’Ryan J included the following in his summary of principles emerging from this line of authority (at paragraph 373):
The obligation [of each party to make a full and frank disclosure] arises because of the necessity for the court in such proceedings to consider all aspects of the financial circumstances of each party;
If there is non-disclosure, in the relevant sense, then the failure to disclosure undermines the whole process of adjudication of the proceedings in relation to financial matters;
A finding of non-disclosure may, in appropriate cases, depending upon the circumstances, result in the other party being granted, without more, the relief sought.
The Court accepts that the wife has sought to minimise her financial position. In that regard, item 12 of the wife’s tender bundle (being Exhibit “1”), provided correspondence from the wife with the ANZ bank in respect to her borrowing ability. The wife conceded, during cross-examination, that the documents from the ANZ Bank were out of date and that she had failed to provide the ANZ bank with full disclosure as to the totality of her income at the time of her correspondence with the bank. The Court repeats the matters as set out in paragraph 10, above.
The Court also notes that a s.128 certificate was issued for the wife, pursuant to the Evidence Act 1995 (Cth), in respect of her non-disclosure of funds received from her employer to the ATO, in excess of her salary. Her financial statement, however, deposed to not only receiving a weekly salary of $760.00 but also a weekly bonus estimated at $250.00. There was no evidence put before the Court from the wife’s employer with respect to her receipt of remuneration in excess of her salary. The husband was critical of the wife as he saw this as an attempt by her to mislead the Court by downplaying her income and creating the impression that her borrowing power was so insufficient as to likely require her to sell the B Street, Town C property if she was required to pay the husband any monies by way of property settlement.
The husband submitted that the Court should take into consideration the wife’s non-disclosure, as referred to in paragraph 102, above, as an item for adjustment in his favour. The Court intends to take that matter into account in terms of a s.90SF(3)(r) factor, see paragraph 131, below.
WHAT IS THE EFFECT, IF ANY, OF ANY PROPOSED ORDER UPON THE PARTIES’ EARNING CAPACITY?
The proposed orders do not impact on the earning capacity of either the husband or the wife.
ANY ADJUSTMENT UNDER S.90SF OF THE ACT?
The husband and the wife submit that adjustment should or should not be made referable to the following factors in the percentages submitted.
a) the age and state of health of each of the parties to the de-facto relationship;
The husband is 48 years of age and deposes to being in reasonable health. Notwithstanding this, the husband says that he has been diagnosed with a medical condition and that this has had an effect on his memory. The husband also agreed that in the last 5 years or so, there have been occasions when he has not been able to remember things. He also agreed that he had struggled, recently, with recalling days and events for the purposes of his trial affidavit. There is, however, no evidence that this detrimentally affects his ability for remunerative employment.
The wife is 52 years of age and deposes to being in reasonable health.
This factor is neutral in terms of the Court’s assessment.
b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
The husband works full time as a security officer, earning $108,888.00 gross per annum. His financial statement reveals that his weekly income of $2,094.00 from his salary exceeds his weekly expenses of $1,862.00 by $233.00. He, currently, pays rent of $270.00 per week and tax of, approximately, $551.00 per week. He has borrowed monies in terms of financing his motor vehicle and his legal expenses.
The wife works as a manager, earning $63,284.00 gross per annum, consisting of $52,520.00 from her employment and $10,764.00 from her carer’s benefit. On a weekly basis her salary and work bonus, approximates, $1,010.00 and her carer’s benefit approximates $207.00, totalling $1,217.00. Her weekly income from these sources exceeds her weekly expenditure of $1,074.00 by $143.00.
The Court accepts that the wife has slightly more superannuation of $51,141.00 than the husband who has superannuation of $36,947.00.
This factor is neutral in terms of the Court’s assessment.
c) whether either party has the care or control of a child of the de-facto relationship who has not attained the age of 18 years;
Neither party has the care or control of a child under this factor.
d) commitments of each of the parties that are necessary to enable the party to support: i) himself or herself; and ii) a child or another person that the party has a duty to maintain;
The husband submitted, and the Court accepts, that, if the wife were to retain the B Street, Town C property, she would not have to incur any acquisition costs, such as stamp duty and legal fees, that would be, otherwise, applicable to him, should he have the capacity to return to property ownership.
The wife is a carer to her elderly mother and receives a carer’s payment.
Both parties have children from their previous relationships who are now adults.
e) the responsibilities of either party to support any other person;
The Court notes that the wife is a carer for her mother, aged 73 years. There is no relevant material before the Court as to the wife’s mother’s needs or the type of care she requires. It was put to the wife that she could, otherwise, work on a full-time basis if she chose to do so, but the wife maintained that, as a carer, she was only able to work part-time and was in receipt of a carer’s pension, as referred to above.
f) subject to subsection (4) the eligibility of either party for a pension, allowance or benefit under: i) any law of the Commonwealth, of a State or Territory or of another country; or ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia, and the rate of any such pension, allowance or benefit being paid to either party;
No relevant matter was put to the Court concerning this factor.
g) a standard of living that in all the circumstances is reasonable;
While no relevant matter was put to the Court concerning this factor, the Court accepts that the husband, in paying for the benefit of the wife the $50,000.00 received from the sale proceeds of the F Street, Town C property, provided funds which were, subsequently, drawn down in terms of the parties’ joint living expenses including travel and holidays for them and their children. During the course of the parties’ relationship, the parties utilised the financial facilities available to them to have a higher standard of living than could be accommodated if living separately.
The Court accepts that, post-separation, while the husband’s living accommodation may be less salubrious than that of the wife, he has a slightly greater disposable income in terms of his greater income from employment which would enable him to fund his standard of living. The husband deposes to spending $500.00 being the total of all of his “other expenditure”, but that expenditure has not been broken down in terms of the matters set out in part N. The wife deposes to spending $849.00 being the total of her other expenditure but similarly there has been no breakdown in terms of the matters the subject of this expenditure. The Court accepts that, post separation, both parties’ standards of living potentially will not be at the same level as it was during their relationship.
h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
No relevant matter was put to the Court concerning this factor.
ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
No relevant matter was put to the Court concerning this factor.
j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
No relevant matter was put to the Court concerning this factor.
k) the duration of the de-facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
While no relevant matter was put to the Court concerning this factor, the Court accepts that the 8 year duration of the parties’ relationship has not had a negative effect on either party’s earning capacities.
l) the need to protect a party who wishes to continue that party's role as a parent;
No relevant matter was put to the Court concerning this factor.
m) if either party is cohabiting with another person, the financial circumstances relating to the cohabitation;
No relevant matter was put to the Court concerning this factor.
n) the terms of any order made or proposed to be made under section 90SM in relation to: i) the property of the parties; or ii) vested bankruptcy property in relation to a bankrupt party;
No relevant matter was put to the Court concerning this factor.
o) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to: i) a party to the marriage; or ii) a person who is a party to a de facto relationship with a party to the marriage; oriii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii);
No relevant matter was put to the Court concerning this factor.
p) the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to: (i) a party to the subject de facto relationship; or (ii) a person who is a party to a marriage with a party to the subject de facto relationship; or (iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or (iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii);
No relevant matter was put to the Court concerning this factor.
q) any child support under the Child Support (Assessment) Act 1989 that a party to the subject de-facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de-facto relationship;
No relevant matter was put to the Court concerning this factor.
r) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
The Court accepts that the matters referred to in paragraphs 101-103, above, do weigh in favour of a slight adjustment to the husband.
The wife has deposed to having some credit card debt of about $2,000.00 with respect to her ANZ card, and $5.00 owing on her ANZ bank mortgage secured against the B Street, Town C property. The husband, on the other hand, had borrowed some $44,500.00 from Company Z Finance which appears to be reflected in funds held in his solicitor’s trust account of $41,717.00 in terms of legal fees. The Court accepts that he will have an obligation to repay Company Z Finance, going forward in terms of a post separation debt for such legal fees to which the wife would bear no responsibility.
s) the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de-facto relationship;
No relevant matter was put to the Court concerning this factor.
t) the terms of any financial agreement that is binding on a party to the subject de-facto relationship;
No relevant matter was put to the Court concerning this factor.
The husband submitted that an adjustment of a further 2.5% should be made in his favour, so that the final adjustment to the matrimonial pot should be assessed at 35% to him and 65% to the wife.
The wife submitted that there should be no adjustment.
Considering then all of the above s.90SF(3) factors, the Court is of the view that there should be an adjustment of 2.5% per cent made in favour of the husband equating to, approximately, $24,827.20. This the Court regards as a proper adjustment given, particularly, the cumulative outcome of the findings made pursuant to s.90SF(3), as referred to above (see T & T (2000) FLC 93-023). Any lesser adjustment, given the size of the asset pool, would be notional.
Accordingly, the husband would be entitled to receive 15% of the property and superannuation pool, being the sum of $148,963.20. The wife would be entitled to receive the balance of 85%, being the sum of $844,124.80.
ARE THE PROPOSED ORDERS JUST AND EQUITABLE?
Section 90SM(3) of the Act provides that:
The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
It is the justice and equity of the actual orders that the Court must consider: Russell & Russell (1999) FLC 92-877.
As the Full Court of the Family Court of Australia said in Dickson & Dickson (1999) FLC 92-843:
Whilst it may, as a matter of individual circumstance, be correct to say that the mere existence of disparity of wealth ought not of itself justify a settlement of property to one party at the expense of the other, it may often, in the overall circumstances of a case, call for further adjustment beyond that assessed on contributions alone, so that the final order is just and equitable…
Section 90ST of the Act requires the Court, as far as practicable, to finalise the financial relationship between parties when making orders for property settlement.
Section 90SM(5) of the Act needs to be exercised very sparingly and only in appropriate circumstances. This is not one of those circumstances.
Accordingly, if the husband was to receive the sum of $148,963.20 out of the property and superannuation of the parties, it is noted that his superannuation totals $36,947.00 and that therefore, he should receive a payment from the wife in the sum of $112,016.20.
Accordingly, the wife would retain her superannuation of $51,141.00 and the B Street, Town C property of $905,000.00, totalling $956,141.00 less the payment to the husband of $112,016.20, being $844,124.80.
In terms of the wife’s payment to the husband of $112,016.20, if she were able to effect that payment by way of either her obtaining funds from borrowing or otherwise, she would retain the B Street, Town C property. The Court notes that she, currently, has a mortgage on title to the B Street, Town C property which only has $5.00 outstanding on it. That mortgage would provide her with a facility to borrow money and noting the agreed value of the B Street, Town C property she would have sufficient equity to raise funds. The Court, further, notes that borrowing is normally considered on 2 bases, namely the first being the equity available to secure any borrowing and the second being the income earning/capacity of the borrower to be able to repay any monies borrowed without necessarily resorting to the sale of the security. For the reasons referred to above, the Court does not accept the wife’s borrowing capacity was as limited as she maintained.
The payment to be made by the wife to the husband referred to above should be made within 60 days of the date of the Court’s orders, so as to permit a reasonable time to enable the wife to raise the funds necessary to make that payment. If that payment is not made, then orders as contemplated by the husband including him being appointed as a joint trustee with the wife for the sale of the B Street, Town C property, with some time changes to give time for their reasonable implementation, could be made to effect a sale of the B Street, Town C property with a sum to be paid to him reflective of the above payment or the percentage of the net sale proceeds that that sum has as a percentage of its agreed value being 12.38% with the balance of the net proceeds of sale to be then payable to the wife.
In assessing whether or not this is a just and equitable outcome, it would result in a situation where each party has superannuation available although the Court notes that the wife’s superannuation is larger than the husband’s. Given both parties are in receipt of remuneration from employment they have the opportunity to build up their superannuation which they will be able to access at some future date.
The Court is satisfied that, in all the circumstances of this case, the orders proposed, as set out at the commencement of these reasons, are just and equitable.
COSTS
Section 117 of the Act sets out that each party shall bear his or her own costs subject to the considerations in sub-section two.
Any order for costs must also be determined in light of the substantive judgment and the relative success or failure of the parties. This is, naturally, something that can only be addressed after judgment is delivered.
The Court proposes to make the orders and directions in relation to any application for costs that might be made as set forth above.
I certify that the preceding one hundred and fifty-two (152) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kemp. Associate:
Dated: 2 March 2022
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