Gemelli and Pullano (No 2)

[2016] FamCA 1020

FAMILY COURT OF AUSTRALIA

GEMELLI & PULLANO (NO 2) [2016] FamCA 1020

FAMILY LAW – PROPERTY – Application by wife for property settlement – Contributions – Wife suffering from a terminal illness - Short marriage - Application dismissed

FAMILY LAW – MAINTENANCE – SPOUSAL MAINTENANCE – Application for spousal maintenance by wife – Application dismissed where wife has failed to establish the threshold question and in circumstances where the husband does not have the capacity to meet such payment

Family Law Act 1975 (Cth) ss 72 and 75(2)

Stanford v Stanford [2012] HCA 52, (2012) 293 ALR 70

Bevan & Bevan (2013) FLC 93-545
Chapman and Chapman [2014] FamCAFC 91

APPLICANT: Ms Gemelli

RESPONDENT: Mr Pullano

FILE NUMBER: SYC 6036 of 2014

DATE DELIVERED: 1 November 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 31 October & 1 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lee

SOLICITOR FOR THE APPLICANT: CBD Legal

COUNSEL FOR THE RESPONDENT: Mr Dura

SOLICITOR FOR THE RESPONDENT: Anderson Lawyers

Orders

1. The application by Ms Gemelli for property and maintenance orders is dismissed.

2. All other extant applications, except costs, are dismissed.

3. Any application for costs to be made in accordance with the Family Law Rules 2004 (Cth).

4. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6036 of 2014

Ms Gemelli

Applicant

And

Mr Pullano

Respondent

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

1. These are proceedings between Ms Gemelli (‘the wife’) and Mr Pullano (‘the husband’), although I note that their marriage has been dissolved.  These proceedings were commenced by the wife, seeking property orders in the form of a payment by the husband to her in the sum of $150,000 and spousal maintenance of some $200 per week.  The husband opposes both applications and as to the maintenance application, says that even if there were needs to be met, the husband’s circumstances are such that he does not have the capacity to meet those financial needs. 

2. He says that given the distribution of moneys during the relationship and around the time of separation, there ought not to be any adjustment of property.  Alternatively, he says that if there is to be an adjustment, it ought to be a very modest sum.  The proceedings were commenced in the Federal Circuit Court and were transferred to this Court and were heard by me yesterday and today.  I am delivering ex tempore reasons as I am concerned for the health of the wife, in particular, given that these proceedings have been delayed in one form or another in circumstances where they were to be expedited. 

BACKGROUND

1. The husband was born in 1949 and is aged 67.  The wife was born in 1964 and is aged 52.  Both parties were born in Country A.  The husband came to Australia in 1972 and is an Australian citizen.  The wife travelled to Australia in or about 23 July 2009, and as a consequence, as I understand it, of her subsequent marriage to the husband, she obtained permanent residence in December 2012.  There is some issue between the parties as to the commencement date of their cohabitation.  The parties commenced cohabitation, on the evidence of the wife, in December 2009 and, on the evidence of the husband, in January 2010.  I make no finding of fact in that regard as there is so little difference between the parties’ positions that it is of no significant moment in this case. 

2. The parties travelled to New Zealand in mid-February 2010.  The husband asserted that he met the cost of that travel and I note that there was no cross-examination in that regard.  I accept that as a fact.  It is agreed between the parties that the husband lent, or advanced, to the wife $9,000 in about March 2010 to enable her to meet the outgoings in relation to her property in Country A.  It is worthwhile to note that at the commencement of the relationship, the wife owned a property in Country A which was not subject to a mortgage, although the wife had significant loans to which she has referred and the husband has referred in their affidavit material.  These loans were repaid by reason of an advance made to the wife in 2010. 

3. In April 2010, the wife returned to Country A.  In June 2010 she borrowed approximately €150,000 against her property which, in part, was used to pay out the loans to which I referred to earlier.  The husband travelled to Country A in about mid-June, and it seems clear that the wife paid his fare to Country A for that trip.  There is evidence that the parties planned to marry in Country A, but circumstances prevented that event occurring in Country A. However, they did marry in Australia in October 2010.  The date of marriage of the parties is of little significance although the fact of it, in terms of the distribution of property between them and the question of spousal maintenance, confirms the short relationship and enlivens the Court’s jurisdiction.  At the time of the commencement of the relationship, the husband was living in his mother’s home, and the wife joined him in Australia with her son Mr E, who lived with the parties until about May 2011. 

4. The wife has one son, Mr E, from a previous marriage, who is aged about 27.  The husband has two children, Ms F and Mr G, from his previous marriage, and they are aged 31 and 27, respectively.  The husband had been engaged in litigation in relation to his late mother’s estate whilst he occupied the home in North Sydney.  The husband and wife lived in that home from early late 2009 or 2010 until 2012. That claim was settled in about September 2011 by way of a deed of settlement which is annexed to the affidavit material.  In February 2012, the husband received about $830,000 on the sale of that property.  The husband had, at about that time, commenced renting a property at H Street, Suburb I, in which he resided with the wife.  He met the rent on that property for a period of 12 months. 

5. I am satisfied and find that the husband provided Mr E with €2,000 in about April 2012.  He provided the wife with €3,952 in the same month, and it is not an issue that the husband transferred to the wife’s bank account, on or about 7 May 2012, €50,000.  In June 2012, the parties and Mr E had a holiday to North Queensland to see the Barrier Reef to which the husband was a primary contributor to that trip. I am satisfied, that the husband provided the wife with about $3,000 on or about 10 August 2012.  In September 2012, the husband purchased a home unit at Suburb J and paid $620,000 for that unit.  He obtained a mortgage over that unit.  This occurred at the end of 2012. 

6. It is clear that 2012 was not a happy year for these parties.  They argued quite often.  The husband asserted that separation between he and the wife occurred on 13 November 2012.  The wife asserts that it occurred in December 2012 when the husband, in her words, “abandoned her”.  The wife remained in the rented Suburb I premises until about mid-February 2013 when, I assume, the rent and lease ran out, although it is not clear what happened at that time.  The parties’ marriage was dissolved by an order made on 28 February 2015, and in January 2016, the husband increased his mortgage by about $44,000. 

7. These proceedings were commenced in February 2016.  The matter came before a judge at the Federal Circuit Court who transferred it to this Court.  The parties have been unable to work out their differences in terms of property and/or spouse maintenance. 

THE EVIDENCE

The wife

1. The wife relied upon the evidence contained in her affidavits of 26 February 2016, 10 October 2016 and 29 August 2016.  There were significant objections to material contained in the wife’s earlier affidavit and Counsel for both parties asked me and I accepted that I should adopt those in these proceedings.  I did so and I provided each of the parties with a copy of the affidavit with my annotations setting out what was included and what was not included.  The wife also relied upon her statement of financial circumstances filed 29 August 2016.  In her evidence, the wife also relied upon two affidavits of Prof. K of 15 and 29 March 2016. 

2. It is not an issue that the wife is very sick, as discussed in Prof. K’s reports, and that she has a significantly reduced life expectancy.  At the beginning of this year, that was said to be somewhere between 12 months and two years.  To her credit, the wife has defied the doctors’ expectations so far and it is the hope of this Court that she continues to defy the doctors in terms of that.  Given that evidence of health, any s 75(2) factors must be considered in the light of that limited life expectancy and that was acknowledged by counsel for the wife.

3. I invited the wife’s counsel to tender the case outline and I accepted that document, not as evidence of the matters contained therein, but as to the evidence of what material the wife relied upon, and to enable me to determine the issues between the parties.  She adduced a copy cheque which was Exhibit W3 and I will refer to that cheque and two cheques produced by the husband, Exhibit H3, sometime later in these reasons.  The wife produced a notice of intention to marry. A letter from Anderson Lawyers was Exhibit W5 which, given the state of the evidence, adds very little to the outcome and Exhibit W6 was the cheque butts to which I will refer to later when I deal with cheques.

4. The wife also tendered Exhibit W3 which was the copy cheque presented by her but not met on presentation. 

5. The wife relied upon an affidavit by a valuer, Mr L, to whom I will refer later. 

6. The wife also adduced, in evidence, the Westpac safe deposit box access register sheet which shows that she opened that safe deposit box in November 2010.  During the course of the marriage, it appears, it had been opened on 20 or 21 October 2010, 13 May 2011, 21 October 2011, 18 November 2011, 9 December 2011, 30 January 2012, 14 May 2012, 26 June 2012, 21 September 2012, 4 October 2012 and then the rest seem to be 2014 and 2015.

The husband

1. The husband relied upon his affidavits, sworn 4 May 2016, 1 September 2016 and two affidavits filed 26 October 2016.  One of those latter affidavits contained a valuation from his valuer, and I will refer to those valuations a little later.  Each of the parties gave evidence, and each was cross-examined.  The parties agreed to, by the end of the hearing, a number of factors regarding property:-

   (a)     that the husband’s apartment or home unit at Suburb J had a value of $900,000; 

   (b)    that his motor vehicle had a value of $15,000; 

   (c)    that the Bendigo Bank account had a value of $1540; 

   (d)    that his household contents had a value of $5000; and

   (e)    the Japanese motor vehicle had a value of $5000. 

2. There was an issue as to valuation of the wife’s property in Country A and two car spaces attached to that property.

3. The wife has a European motor vehicle which is valued at $2,000; household contents, $800; a bank account in Country A with $10,668; a Westpac Bank account with $7,703; and a Commonwealth Bank account of $5,429.  There was an issue as to the wife’s jewellery, and the wife in her case outline conceded that it had a value of $2,900.  The husband has a loan secured against his home in the sum of some $122,071.  He was not cross-examined in relation to that and I accept that that was the case.  A credit card liability of the husband of about $5,000 falls into the same category.  The wife has a home loan secured over her property in Country A in the sum of about $166,000. 

4. The effect of this is that the husband’s property, namely, Suburb J, the Renault, Bendigo Bank, the home contents, and the Japanese motor vehicle, amount to some $926,540 and there are liabilities to which I have referred earlier of some $127,071 which gives a net amount of some $799,469.  The wife has the European motor vehicle, the other assets to which I referred, including bank accounts and jewellery, which total some $29,500 plus the property and car spaces in Country A.  If valued in accordance with the husband’s valuation that totals some $484,950.  If valued in accordance with the wife’s valuation it is some $314,025.  That will mean if the value of the property is as per the wife’s assertion, with the personal property and with the loan of $166,063 taken from it, it leaves the net amount of $177,462. 

5. If, on the other hand, the property is valued at $484,950, the net amount to the wife is some $348,387.  If the husband’s valuation is accepted, it would mean that the wife has some 30 per cent of the property and the husband has some 70 per cent of the property.  If it is accepted on the wife’s valuations, it would appear that the husband would have some 82 per cent of the property and the wife some 18 per cent of the property.

6. One of the factors I have to take into account is that, as at the time of separation, the wife had about €95,000 in her bank account in Country A.  The amount outstanding under the mortgage at that time was some €116,000.  So therefore she had a net liability of some €21,000.  The wife has applied these funds to her living expenses and other expenses since that time, including gifts to her son, as is clear from Exhibit H2.  If the mortgage had been paid out and had remained at the level that it was at that stage, there would have been an increase in the value of the money paid to the wife which would have taken it up to about 70 per cent to the husband and 30 per cent to the wife.  However, the wife did not adopt that course at that time.

THE LAW

1. The law regarding the treatment of property is under some level of refocus and review following the High Court decision in Stanford v Stanford.[1]  Prior to that decision the preferred (although not uncontroversial approach ) was the four stage process reflected by the Full Court in cases such as Hickey v Hickey and the Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143.

   [1] [2012] HCA 52, (2012) 293 ALR 70.

2. Following Stanford v Stanford (supra) the Court must firstly satisfy the requirement of s 79(2), that any order must be “just and equitable”, before then examining what orders should be made under s 79(4).

3. This approach was later adopted in Bevan & Bevan[2], where Bryant CJ and Thackray J noted that the Stanford v Stanford (supra):-

   decision serves to refocus attention on the obligation not to make an order adjusting property interests unless it is just and equitable to do so. [3]

   [2] (2013) FLC 93-545.

   [3] Ibid at para 65.

4. In Chapman v Chapman[4]the Full Court considered the independence of ss 79(2) and 79(4) and agreed that Bevan v Bevan correctly stated the law in relation to the Courts consideration of s 79(2), whether the making of an order is just and equitable. At paragraph 19 of their joint reasons Strickland and Murphy JJ confirmed:-

   Section 79 demands a consideration, separately, of all of its requirements without conflation.

   [4] [2014] FamCAFC 91.

5. However, their Honours disagreed with any intention of plurality found in Bevan v Bevan, (supra) in that the Court must consider the matters in s 74(2) when addressing s 79(2) of the Family Law Act 1975 (Cth) (‘the Act’). This was in view of the opposite approach adopted by the High Court in Stanford.  Bryant CJ in a separate judgment noted:-

   Whatever differences may exist as to the meaning of [84] and [85] of Bevan, I am in agreement with Strickland and Murphy JJ that it is not a requirement to take account of the matters in s 79(4) when considering the question of whether it is just and equitable to make any order under s 79(2). But as long as they are seen as separate and not conflated, the factors in s 79(4) have the potential to inform the decision under s 79(2) …

6. Accordingly, there are tasks I must complete when determining a division of property.  These are:-

   1.identify, in the context of ordinary legal principles, the existing legal and equitable interest of the parties in the property;

   2.consider whether in the circumstances of the parties it is appropriate and just and equitable for order to be made with regard to s 79 of the Act; and

   3.consider any relevant contribution and other matters that should be taken into account under s 79(4) of the Act.

7. I accept the submissions by Mr Dura, counsel for the husband, that the first step I have to take once I have done that is to consider whether there ought to be an adjustment of property at all, and, if I then come to that conclusion that there ought to be, as to what that adjustment should be and I will set that out.

LAW AS TO SPOUSAL MAINTENANCE

1. Section 74 of the Act provides the foundation for the Court to make orders in respect of spousal maintenance. Section 72 of the Act sets out the circumstances in which a party to a marriage is liable to maintain the other party, which are:-

   72(1)A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

   (a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

   (b)by reason of age or physical or mental incapacity for appropriate gainful employment; or

   (c)for any other adequate reason;

   having regard to any relevant matter referred to in subsection 75(2).

2. Consequently s 72 of the Act establishes a threshold question which needs to be determined before the Court can exercise its jurisdiction under s 74 of the Act. That threshold test is whether the person applying for maintenance is unable to adequately support themselves by having regard not only to the matters set out in that section, but also those set out in s 75(2) which are:-

   (a)the age and state of health of each of the parties; and

   (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; an

   (c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and

   (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; and

   (e)the responsibilities of either party to support any other person; and

   (f)subject to subsection (3), 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; and

   (g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and

   (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; and

   (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; and

   (k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

   (l)the need to protect a party who wishes to continue that party’s role as a parent; and

   (m)if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and

   (n)the terms of any order made or proposed to be made under section 79 in relation to:

   (i) the property of the parties; or

   (ii) vested bankruptcy property in relation to a bankrupt party; and

   (naa) 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; 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

   (na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

   (o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

   (p)the terms of any financial agreement that is binding on the parties to the marriage; and

   (q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

1. I will short circuit the argument regarding the threshold questions of the needs and the husband’s capacity to pay, having regard to the husband’s financial circumstances set out in his statement of financial circumstances that he is on a pension, he works occasionally, and looking at the costs of his living, the mortgage and what have you, I am not satisfied that the husband has capacity to fund a periodic spousal maintenance payment and I do not intend to make such an order, and the wife’s application in that regard will be dismissed.  In reaching this determination I have had regard to the submissions made by each of the parties’ counsel in their case outlines addressing the s 75(2) aspects.

2. I heard the evidence of both parties.  The wife’s evidence was that she arrived in Australia in July 2009.  She brought with her about €5,000 and had some credit cards and debit cards.  She had a pension in Country A and owed personal loans of about €38,000.  She annexed to her trial affidavit, annexure C, a copy of a bank safe deposit receipt, showing that in Country A she had a safe deposit box which was initiated in January 2009 and finalised in August 2016.  The wife gave evidence that she signed a contract with the bank in 1996 and put money in that safe deposit box over many years.  She asserted that the money was put aside for her son.  There is evidence that she opened the box on 20 July 2009, 18 June 2010, 30 June 2010, 17 May 2016 and 28 August 2016.  She was in Country A from April 2010 for about six months. 

3. Suffice to say the wife said she took €100,000 out of the safe deposit box and that she brought €5,000 into Australia in late 2000 and October 2010 and that the husband brought in presumably on her evidence €90,000 or €100,000.  It is likely to be €90,000.  She said he kept that in a filing cabinet, and eventually the balance was placed into the safe deposit box, and funds were taken out over a period of time until those funds were extinguished.

4. When giving evidence, the wife often asked herself questions and then answered those questions.  I may have seemed critical of her at the time, but I do not see that in any way seriously undermining her evidence.  She was clearly anxious to tell the Court her story and did so at every opportunity she could achieve that end.  Her evidence was not seriously impeached.  The husband gave evidence in accordance with his affidavits and he was cross-examined.  He gave evidence in relation to the cheques and the reason he handed the cheques over, and I will deal with that a little later, as did the wife give evidence in relation to the cheques.  His evidence was not seriously impeached. 

5. So, therefore, I am left with a difficult decision regarding, first of all, the question of the €100,000 or €90,000.  The husband deposes in blunt and unambiguous terms that no such money was brought into Australia.  The wife deposes in clearly unambiguous terms that the money was brought into Australia.  There was no evidence of where the money came from in terms of a bank account other than the evidence of the wife.  The husband was cross-examined in relation to conversations he may or may not have had with the bank manager.  I have considered all of the evidence.  I am concerned that the evidence of the bank manager was not put before the Court, and the onus is on the wife to establish that the funds existed rather than the husband establish that they did not exist.  On balance, I prefer the evidence of the husband in that regard. 

6. There was then the question of the cheques.  The parties were going through what could only be described as a difficult time in April or May 2012.  It is not in issue that the husband paid into the wife’s account in Country A the sum of €50,000 on 7 May of that year, this increasing her savings to €95,000.  There are three other cheques which are before the Court and the cheque butt.  One of those cheques, the earliest, is for $50,000, and that cheque is torn.  The second cheque is for $100,000, and that cheque is torn.  There is a third cheque for $50,000 which is not torn, and that cheque was attempted to be negotiated at the bank against which it was drawn in September 2012. There were insufficient funds in the bank, and consequently the cheque was not met on presentation. 

7. The wife’s evidence was that she was given a series of cheques to pay off the mortgage, and there was significant discussion between her and the husband, and between her, the husband and the bank manager about paying off the mortgage and that the funds were to be used for that purpose.  She says that she approached the bank and endeavoured to negotiate those funds in September 2012.  That was unsuccessful, and the husband took two cheques from her and tore them up or removed them from her handbag. 

8. The husband’s evidence was different in that he says he has no recollection of one of the cheques.  One of the cheques was torn up and he said was not given to the wife in May 2012.  In relation to the other cheque the husband said he gave to her in May, asked for it back, but the wife kept it and then attempted to negotiate it without his approval.  Each of them has their own views in relation to that, and I am not particularly troubled by the evidence of either party.  It is in the context of a relationship that was breaking down.  It is my task to determine, firstly, if there should be an adjustment of property and, if so, what that adjustment should be.

9. As I said earlier, the wife said the Italian bank manager would support her in terms of the husband promising to pay out the loan, but no affidavit was provided by him.  She said that she presented the intact cheques, which were later torn, to the Australian bank manager, and no affidavit was provided by him either.  In terms of the cheques, I am not assisted one way or the other in terms of those outcomes.  I am satisfied that the property at Suburb J was purchased by funds left to the husband by his mother after some litigation.  I note that there is no Kennon[5] claim in this matter. 

   [5] Kennon v Kennon (1997) FLC 92-757.

10. I accept that from October 2010 until May 2011, Mr E lived in the home with the husband and wife at Suburb M and that the expenses for Mr E were met by both the husband and the wife, given that the husband provided the accommodation and met most of the utility bills.  I accept that the husband gave to the wife as a gift his mother’s gold bracelet and another necklace and bracelet that belonged to his mother.  I have not been able to determine the value of those items.  

11. I accept, prior to resolving the family provision claim, the husband gave the wife a necklace and ring for which he paid $7,000, borrowed money and subsequently repaid it.  I do not know and affirm no view as to the value of that, except that such jewellery has, no doubt, been retained by the wife and is included in that sum of $,2,900.  As I have said earlier, the wife paid approximately $3,000 for the parties’ wedding in Sydney and gave the husband $1,000 in about November 2010. 

12. I accept that the husband was working part time as a shop assistant in 2011 earning $180 per week, and that the wife was not in paid employment, but was receiving a pension from Country A and then subsequently from Australia.  I accept that, in April 2012, the husband sent Mr E about $2,670 for his general expenses and gave the wife about $3,952 to spend in April 2012. 

13. I accept that from some of the proceeds of the estate claim he paid the rent on the Suburb I property, totalling some $2,900 per month.  I accept that the cost of the travel to North Queensland with the wife and her son in June 2012 was about $5,000 and that he gave the wife about $3,000 in August 2012.  I accept that the husband purchased furniture and furnishings for the home, a significant proportion of which were retained by the wife on separation, although the value is limited, given the concession in that respect. 

14. At the commencement of the relationship, I accept that the wife had her property in Country A and car spaces.  She had the liabilities to which I referred earlier.  She clearly had money in the bank.  She brought money to Australia, and she clearly had savings of some €10,000.  That was the amount of money which the parties, I have determined, on balance brought to Australia in 2010.  The husband had a car and about $25,000 or $31,000 in the bank. 

15. Each of the parties was in receipt of pensions.  As I indicated, the husband was earning some limited money.  Subsequent to separation, he operated a business which apparently was not successful.  I accept that out of the loan taken out by the wife, she paid about €5,000 to her son, about €5,000 to her friend, Ms N and repayment to the husband of moneys he paid to assist her at that time. 

16. I accept that the wife paid for the parties’ visit to Country A, and that the husband, otherwise, provided most of his own expenses, although no doubt the parties intermingled some daily funds as they continued.  I accept that the wife contributed within the context of her limited resources towards the support of the parties, as did the husband during the course of their short relationship.

17. I accept that each of the parties contributed to the household chores as they were able to do effectively and equally.  The adult children of the husband stayed at the home for some period of time but eventually moved out.  The husband is in good health, as I said.  The wife is not in good health. 

18. What, then, do I do with the valuations?  I have struggled over those.  I have two valuations before me, both some significant sum apart.  Neither expert was called for cross-examination.  I do not adopt the course suggested by counsel for the wife, that is, to average the amounts.

19. The wife’s valuer undermines in his statement the veracity of the husband’s valuer, although much of the wife’s valuer’s affidavit is in Italian.  The difference between the two values is substantial.  There is evidence that the wife’s valuer and the husband’s valuer did not meet and that the wife may have been difficult in terms of allowing the valuer access to the property.  But, in any event, the valuation took place.  For the purpose of this exercise, I will treat the lesser valuation as that being provided by the wife.   

20. I have also looked at the contributions since separation.  The loan on the wife’s property has reduced from some €116,000 to about €111,000.  I am concerned that the wife has reduced the €95,000 savings which she had at or shortly before the time of separation to some very, very modest sum in circumstances where she could have, if she chose to do so, paid off almost all of her mortgage.  She did not do so, and that was her entitlement.  However, I have had regard to that in terms of the assessment of contribution.

21. Given all of the circumstances to which I have alluded in these reasons, and given the various contributions made by the parties, the assessment of the properties, the values of the properties, and adopting the valuation that I have adopted, I am troubled as to whether there ought to be any adjustment at all.  The husband paid some $66,000 in May 2012.  There are limited s 75(2) factors for the wife given her health, and there was no evidence as to the cost of her treatment.  The marriage was a short marriage by any standards, and the husband has, in various ways, provided significantly for the wife during the course of the marriage.  Many of the factual matters to which he alluded have been established by the various bank records.

22. I have had regard to the €10,000 which the wife provided for the family over the period of time after they arrived back in Australia in October 2010.  I have rejected, as I indicated earlier, the broader aspect of the wife’s claim for the further €90,000 or €100,000. 

23. Given all of those circumstances, I am not satisfied in this case that a property adjustment ought to be made.  As such, I dismiss the wife’s application and remove this case from the list of matters requiring determination.

I certify that the preceding fifty three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 1 November 2016.

Associate:     

Date:   23November 2016