Gokhan & Sastre
[2024] FedCFamC1F 480
•14 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gokhan & Sastre [2024] FedCFamC1F 480
File number(s): ADC 3081 of 2021 Judgment of: BERMAN J Date of judgment: 14 August 2024 Catchwords: FAMILY LAW – PROPERTY – Where the husband seeks an order for 40 per cent of the asset pool in his favour – Where the wife contends it would not be just and equitable to make any order for adjustment of the existing property interests – Consideration of Stanford v Stanford [2012] HCA 52 – Where the marriage was of short duration – Where there is one child of the marriage – Where Consent Orders were made for the child to live with the wife and spend no time with the husband – Consideration of family violence – Where the main asset is the home – Where the wife owned the home with her first husband – Where most of the financial contributions made by the husband were repaid by the wife – Where the husband made insignificant non-financial contributions – Consideration of the lack of disclosure provided by the husband – Where the Court found the husband was an unreliable witness – Where the Court finds it is not just and equitable to alter the existing property interests – Consideration of Fielding & Nichol (2014) FLC 93-617 – Consideration of the alternative approach – No orders. Legislation: Family Law Act 1975 (Cth) s 75, 79 Cases cited: Bevan & Bevan (2013) FLC 93-545
Chapman & Chapman (2014) FLC 93-592
Fielding & Nichol (2014) FLC 93-617
Hickey & Hickey & The Attorney General for the Commonwealth of Australia (2003) FLC 93-143
Pierce & Pierce (1999) FLC 92-844
Re: Sabri; ex parte Brien (1997) FLC 92-732
Stanford v Stanford [2012] HCA 52
Zaruba & Zaruba (2017) FLC 93-776
Division: Division 1 First Instance Number of paragraphs: 252 Date of hearing: 20-24 & 29 May 2024 Place: Adelaide Counsel for the Applicant: Mr Heinrich Solicitor for the Applicant: Starke Lawyers Counsel for the Respondent: Ms Betro Solicitor for the Respondent: Kate Chisholm Family Lawyers ORDERS
ADC 3081 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GOKHAN
Applicant
AND: MS SASTRE
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
14 AUGUST 2024
UPON NOTING THAT the husband retains the Motor Vehicle 2 motor vehicle.
THE COURT ORDERS THAT:
1.The Amended Initiating Application sealed 10 April 2024 and the Amended Response sealed 5 April 2024 be dismissed.
2.Each party is to retain assets currently in their respective named possession or control.
3.Each party is to retain their respective superannuation entitlements without adjustment or further claim, demand or entitlement of the other.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Mr Gokhan (“the husband”) and Ms Sastre (“the wife”) are unable to reach agreement in relation to parenting matters and division of property.
The matter was listed for a trial in respect of both parenting and property matters commencing on 20 May 2024. On the first day of trial, the parties reached agreement in relation to parenting matters and final Consent Orders were subsequently made. The Consent Orders provided that:
2. [The wife] have sole parental responsibility for [the child].
3. The child live with the [wife].
4.[The husband] be at liberty to send by registered post to the [wife]’s residential address letters, cards and presents to the child on the occasion’s of the child’s birthday, Easter and Christmas each year and her Year 12 graduation.
The Court is therefore being asked to make a determination solely in respect of property settlement and division.
BACKGROUND
The husband was born in Country B in 1974 and is currently 50 years old. The wife was born in Australia in 1974 and is currently 49 years old.
The parties met online in or about late 2010 or early 2011 and in 2012, the husband travelled to Australia to meet the wife. The parties were married in 2012 and commenced cohabitation in a property owned by the wife at C Street, Suburb D (“the Suburb D property”).
The parties separated under the same roof on 1 December 2019 and the husband moved out of the Suburb D property by the end of the month.
There is one child of the relationship namely, X born 2013, aged 11. Since separation, she has lived with the wife and spent virtually no time with the husband. In accordance with the final parenting orders, X will continue to live with the wife and spend no time with the husband.
The wife has two children from a previous relationship, Ms E born 2005 and F born 2007. It is uncertain as to whether the husband has a child with his ex-partner in Country B. The wife asserts that prior to the birth of X, the husband returned to Country B in circumstances where he had been informed that his ex-partner was pregnant however, this is denied by the husband.
Following the parties’ marriage, the husband returned to Country B in late 2012. The wife subsequently learned that she was pregnant.
It appears that even in the early stages of the marriage, the parties experienced unhappy differences. The husband complains that he tried to contact the wife whilst in Country B however she refused to take his phone calls until early 2013.
The husband caused a lawyer in Country B to forward an email to the wife in 2013 wherein he acknowledged that the wife was pregnant and that he would wish to be present at the birth. By response, the wife advised the husband that she considered he had been physically abusive and had perpetrated family violence whilst he was in Australia prior to his departure to Country B.
The wife had advised the Department of Immigration that she did not support the husband’s partner visa and his Application for Permanent Residence. As such, when the husband did return to Australia in 2013, he returned on a tourist visa.
Whilst the wife’s initial position was to separate from the husband and end their relationship, upon his return to Australia she soon allowed him to remain in the spare bedroom at the Suburb D property.
Whilst not the subject of comment by the husband, the wife contends that he did not contribute financially to the household by the purchase of groceries or a contribution towards the utilities nor did he undertake any non-financial contribution in terms of assisting with X’s care.
The parties do not agree as to the method and manner of their reconciliation and a resumption of cohabitation.
The husband highlights that the wife was supportive of his application for a partner visa and ultimately a pathway to permanent residency including the payment of $10,000 to the husband’s migration agent. The wife says that the husband’s behaviour was sufficiently abusive that she felt she had no alternative but to agree to sponsor him and pay the migration agent from her own financial resources. At birth, X was registered as [Gokhan-Sastre]”. In late 2013 the wife consented to an application to change X’s surname to “[Gokhan]” and then to change her surname from “[Sastre]” to “[Gokhan-Sastre]”.
The husband commenced formal employment as of early 2014 for G Company.
Relevant to the proceedings is the husband’s assertion that his wages went into an H Bank Account directly from his G Company pay transactions from a CBA Account that started in April 2014. He then contends that the monies were deposited into the parties joint ANZ Account from October 2015 with the last payment from his employment with G Company deposited in January 2018.
The wife denies that the H Bank Account, whilst in the joint names of the parties, was operated by her. It is the wife’s position that until the husband became a permanent resident in 2016, he was not able to open an account in his sole name and needed the involvement of the wife. Whilst she concedes that she gave consent in order to create the joint account, it is her position that the account was operated solely by the husband.
There is also contention as to the purpose of the parties opening the joint ANZ Account. Whilst denied by the husband, the wife says that the purpose of the ANZ Account was as evidence of the intermingling of the parties’ finances in order to support the application for a partner visa and Permanent Residency Application. The wife states that she did not use the account and that it was for the sole benefit of the husband. She does acknowledge that money was transferred from the ANZ Account to the ANZ mortgage but again, relevant to the proceedings, is the wife’s assertion that any money transferred to the mortgage was required to be reimbursed to the husband from the wife’s separate resources which she states came from monies borrowed from her parents.
The wife alleges that the husband was the perpetrator of entrenched family violence. Prior to the husband returning to Country B in late 2012, the wife says that the husband was violent, not just to her but also to her children, Ms E and F.
In 2015 and 2016 the wife refers to various incidents involving the husband holding a weapon to F, grabbing Ms E by the hair and throwing water into her face and assaulting F by picking him up by the throat and lifting him off the ground.
The parties together with X, Ms E and F travelled to Country B in 2017. There is disagreement as to the financial arrangements. The wife says that the husband initially paid for the flights however, she was required to reimburse him in cash for the costs of the flights for herself, Ms E and F.
The husband left his employment at G Company in early 2018 and commenced work at S Company in mid-2018. Between early 2018 and mid-2018, the husband travelled alone to Country B.
The parties separated on 1 December 2019 and following further allegations of violence in late 2020 the wife made a report to SAPOL which resulted in the husband’s arrest. An Interim Intervention Order was made listing the husband as the defendant and the wife, Ms E, F and X as protected people.
In 2020 the husband was charged with multiple criminal offences and was given bail.
In early 2021 the husband sustained a work-related injury and in early 2023, he received compensation for the work-related injury.
The husband ceased his employment in late 2022 and registered an ABN number as a sole trader.
In early 2023, the husband became a director and shareholder of “[J Pty Ltd]” and in mid-2023 ceased being a director and shareholder of the company.
The husband commenced these proceedings by Initiating Application on 25 June 2021 in relation to both parenting and property matters. The wife filed an Application for Divorce in late 2022 and in early 2023, the divorce order took effect.
The husband was granted Australian Citizenship in early 2023.
DOCUMENTS RELIED UPON
The husband relies upon the following documents:
(1)Amended Initiating Application filed 10 April 2024;
(2)Affidavit of the husband dated 18 February 2024 (“the husband’s trial affidavit”);
(3)Financial Statement filed 28 March 2024;
(4)Outline of Case document filed 15 May 2024; and
(5)Cost Notice filed 20 May 2024.
The wife relies upon the following documents:
(1)Response to Initiating Application dated 26 November 2021;
(2)Affidavit of the wife dated 5 April 2024 (“the wife’s trial affidavit”);
(3)Amended Financial Statement filed 5 April 2024;
(4)Affidavit of Ms K dated 5 April 2024; and
(5)Affidavit of Ms M dated 5 April 2024.
(6)Outline of Case document filed 15 May 2024; and
(7)Cost Notice filed 20 May 2024.
COST NOTICES
Exhibit “7” comprises the parties’ updated Cost Notices and the husband’s trust account statement as at 22 May 2024.
The wife’s Cost Notice sets out that she has incurred the following costs:
Actual costs paid $35,673 Future costs up to and including the trial (s 102NA funding pursuant to order made 13 November 2023) NIL Expenses paid or payable to an expert witness (Valuation report of N Valuers dated February 2024) $1,042.50 TOTAL $36,715.50
The husband’s Cost Notice sets out that he has incurred the following legal fees:
Total solicitor’s costs billed $48,922.50 Counsel fees billed $16,159 Disbursements billed (N Valuers) $1,042 TOTAL (BILLED AND PAID TO DATE) $66,123.50 Estimated solicitor’s fees $8,800 Estimated Counsel fees $22,000 TOTAL ESTIMATED FUTURE COSTS $30,800
The husband also relies upon a trust account statement as at 22 May 2024 which shows that at 28 March 2024 the husband had a balance of $112,128.20 in his solicitor’s trust account and following debits for solicitor and counsel fees, the balance remaining as at 22 May 2024 was $61,484.50.
THE EVIDENCE
The wife
From late 2010 to early 2024, the wife was employed as an allied health worker at Q Centre on a part-time contract of 30 hours per fortnight.
The wife was made redundant from her employment with Q Centre in early 2024. Exhibit “3” comprises documents evidencing the wife’s final payout sum. The final payslip from the wife’s employer confirms that she received $5,195 for accrued annual leave, a redundancy payment and salary in the total sum of $33,444.52 in early 2024.
The wife provided a Notice of Assessment for the year ending 30 June 2023 indicating a taxable income of $26,467. By reference to the Income Statements for the relevant period, the wife’s gross salary was $35,317 together with paid leave of $7,092.93 totalling $42,410.16. It was the subject of a salary sacrifice amount of $16,108.04 leaving a total gross amount, for the purposes of taxation assessment, of $26,302.12.
Part of the salary sacrifice payment was the sum of $612 per fortnight which was directly applied to the home loan mortgage.
Prior to the wife’s current solicitors, she instructed O Lawyers and incurred costs billed and paid in the sum of $29,208. There is some uncertainty as to whether the disbursements of $6,176.70 were included in the total amount billed or whether that is an additional amount and if so, the total amount paid would be $35,434.
The wife agrees that the balance of the ANZ mortgage increased from $3,479 on 22 August 2019 to $91,012 on 25 February 2022. The wife’s explanation for the significant increase in the mortgage was to pay for improvements and repair to the Suburb D property, to replace household items, general living expenses and in particular expenses for the children’s curricular and extra-curricular activities, but also for the payment of the legal fees to O Lawyers.
The wife agreed that the husband’s total gross income for the period 1 July 2013 to 30 June 2020 was $296,703 with the wife’s taxable income for the same period at $142,796.
The wife confirmed her affidavit evidence that even though the husband’s wages went into the H Bank Account and then to the ANZ Joint Account with withdrawals for mortgage payments, she did not consider that they were joint accounts but that they were controlled by the husband. The wife’s evidence was that the husband was unable to establish a bank account in his sole name because of his visa and so notwithstanding it was a joint account, it was only the husband who used it.
The wife did concede that the husband may have paid some modest bills over and above the mortgage, but that any significant payments made by him, were required to be repaid by the wife, in cash.
The wife’s resources were such that she did not have the money to repay the husband and so she received financial assistance from her parents. It is a matter of contention as to whether the wife’s parents provided money to her and if so, whether it was by way of gift or loan.
The wife also obtained funds to repay the husband from Ms M who was X’s godmother.
The wife accepts that the husband transferred money from the ANZ Joint Account to the Home Loan Account totalling $35,000 over the period 9 October 2015 to 9 June 2016. She conceded that she had an App on her phone that enabled her to view the ANZ transactions.
The wife otherwise maintained her evidence of cash reimbursements made to the husband upon his demand with the first cash payment having been made in 2015.
Exhibit “5” is a book prepared by the wife’s mother. It records each occasion that money was provided by the wife’s parents, to the wife, consequent upon the husband demanding repayment of his monies spent. Each record is dated and signed by the wife and her mother.
The exhibit records various amounts totalling $74,500.
The preamble to exhibit “5” is as follows:
I am keeping a record of money we have loaned not a gift, to [Ms Sastre] to help her out to give back the money [Mr Gokhan] is demanding her to pay back.
Signed [Ms K]
The wife also asserts that the husband withdrew significant sums of cash from the H Bank and ANZ Accounts which she considers were controlled and operated by him.
In particular, the wife was questioned as to two payments of $5,000 from the H Bank Account in October 2014 and November 2014. The wife denies that she made the cash withdrawals and does not know how the husband utilised the withdrawn funds.
In addition to the mortgage repayments, the wife contends that the husband also required that she pay his migration agent’s fees in the sum of approximately $10,000. Whilst upon first consideration the issue of who paid for the husband’s migration agent would seem of secondary importance, the parties are in direct conflict.
It is unfortunate that there was not some effort made to establish from the migration agent if records were kept by him and if so whether the source of the funds could be identified.
Much was made of the costs of the trip taken by the family to Country B. The wife’s evidence was not impressive in respect of the payment of travel costs. The topic is unlikely to be of assistance in determining the appropriate orders to be made.
The wife states that as at the date of separation being 1 December 2019, the husband had $63,783 in savings being the sum reflected in the trust account statement of the husband’s solicitors.
The wife agreed that the husband continues to pay child support in the sum of $445.83 per month. Whilst there were some initial discussions as to whether there were arrears of child support, the evidence enables a finding that the husband is both up to date with his child support payments and that there is some level of certainty as to both his future employment but also the level of child support likely to be assessed on an ongoing basis.
Other than the unsatisfactory evidence of the wife concerning the payment of travel expenses for the family holiday to Country B, I consider the wife’s evidence to be reliable.
Of note is that the detailed evidence contained in the wife’s trial affidavit concerning family violence allegedly perpetrated by the husband was neither the subject of a formal response or denial by affidavit. The wife’s evidence was not the subject of challenge in cross-examination.
I consider that the wife was a reliable witness.
Ms K
Ms K is the mother of the wife.
In 2010, Ms K and her husband assisted the wife by providing her the sum of $120,000 to conclude a property settlement with the wife’s first husband thereby enabling her to retain the Suburb D property.
Ms K’s affidavit provided support for the wife’s contention that the money she provided to the wife was by way of a loan. The purported loan agreement is annexed to Ms K’s trial affidavit.
Ms K conceded that since money had been provided to the wife neither she nor her husband had made any request for repayment.
The last payment of money made to the wife was in June 2019.
In evidence Ms K conceded that whilst she would like some of the money back, she was not sure if that would occur.
Ms K is a credible witness. I accept her evidence that money was provided to the wife initially in the sum of $120,000 to effect property settlement with her former husband and then to the sum of $77,000 during the course of the current relationship.
Whilst there is no doubt that money was provided, Ms K’s evidence did not assist in providing detail that underpins the assertion that monies provided to the wife were by way of loan and not gift.
Ms M
Ms M is a friend and former work colleague of the wife as well as X’s godmother.
In or about October 2018, the wife asked Ms M to loan her $20,000. Ms M was able to provide the wife with the sum of $10,000, in cash.
Ms M typed up a loan agreement in the following terms:[1]
[1] Affidavit of Ms M filed 4 April 2024 at “[MM1]”.
Loan
On the […] October 2018 I, [Ms M], loaned [Ms Sastre] the sum of $10,000. [Ms Sastre] required these funds to repay her husband, [Mr Gokhan], who had requested [Ms Sastre] repay him for his contribution to their mortgage.
The sum of Ten Thousand Dollars (AUD$10,000) was provided as a loan not a gift. [Ms Sastre] has agreed to repay these funds when she is able to do so.
Both the wife and Ms M signed the agreement in October 2018.
I find Ms M a credible witness. Whilst the purported purpose underlying the wife’s request for Ms M to provide her with $10,000 is not within Ms M’s knowledge, I accept that she has an expectation that the money provided will be returned to her.
The husband
The husband relies upon exhibit “8” which is an ANZ Account ending …82 showing a balance as at 31 January 2020 of $62,294. Exhibit “9” is a Westpac Account ending …74 for the period 14 July 2023 to 29 September 2023. The following transactions are relevant:
14/07/23 Deposit online $15,000
14/07/23 Deposit Suburb R $51,000
17/07/23 Deposit Suburb R $50,000
As at 17 July 2023 the balance of the ANZ Account ending …82 was $116,200.
Exhibit “10” is the Westpac Account …74 for the period 25 January 2024 to 28 March 2024. The opening balance is $118,848.31 and following various withdrawals, as at 28 March 2024, the running balance was $5,403.72.
The husband’s evidence was given with the assistance of an interpreter. Given the husband considered that his English was not sufficiently well advanced to be given without the assistance of an interpreter, an enquiry was made as to whether the husband had received assistance in having his trial affidavit translated to Country B language.
It appears that whilst a formal translator was not utilised, there was a Country B speaking member of staff employed by the husband’s solicitor.
The husband confirmed that he was able to read the draft affidavit in English and only a few words required interpreting. The husband’s affidavit is a scant document that is generally unresponsive to the matters of importance raised by the wife.
It was important to ascertain that the husband’s affidavit evidence was understood and adopted by him.
The husband confirmed that in early 2023 he withdrew the sum of $50,000 from the Westpac Account as his buy in money with two other people to form the ‘J Pty Ltd’ business.
The deposit of $15,000 in July 2023 was remuneration for work undertaken by the husband. The sum of $51,000 deposited in mid-2023 came from a refund of money invested in J Pty Ltd.
The further cash deposit in mid-2023 of $50,000 was made at Suburb R and came from the ANZ Bank Account.
The relevant aspect of the husband’s evidence was that the deposits of 14 and 17 July 2023 in the total sum of $101,000 were transactions in cash.
The husband conceded that at one point he had $62,000 in cash held at his home. The money was apparently kept in part on his person and the balance was in his home.
The husband attempted to explain why he held large sums of cash in his home rather than deposit it in the bank however, his explanation that he was fearful of a scam was faltering and unconvincing.
The impression left by the husband on this topic was that he was evasive, and it is likely that the husband thought that by keeping the money in cash he would evade scrutiny.
The husband’s evidence is that he now only has between $200 and $300 and that there is no money currently stored in his home. In February 2024 he did have possibly $1,500 to $2,000 but as at the commencement of the trial, the husband was not sure whether he had spent the money or whether it had been the subject of bank deposit.
The husband conceded that when he saw his Financial Statement on 27 March 2024, it is likely that he had between $1,800 and $2,000 in cash at home that he did not disclose. He explained that the retention of the cash money was a normal routine that he adopted which involved taking approximately $2,000 from the ANZ account and transferring it to the Westpac account.
The husband agreed that he was aware of requests for the provision of financial documents and was aware that there had been requests made for the provision of his ANZ Bank statements and whilst he had not provided updated bank statements since 2022 some of the accounts were no longer in operation.
Exhibit “17” is a request from the wife’s solicitor dated 20 March 2024 seeking from the husband’s solicitor discovery of financial documents in possession of the husband but in particular, the statements for all bank accounts held by the husband including ANZ accounts ending …58, …39 and …94. As at 20 March 2024, no statements for any of these three ANZ accounts had been provided after July 2022. The response from the husband’s solicitor dated 25 March 2024 advised that the ANZ accounts were all joint accounts closed by the wife and as such she would have a copy of the relevant bank statements.
The husband conceded that as at the date that he filed his trial affidavit he had $139,000 in bank accounts. It is not controversial that the husband did not disclose either the money that existed at the time nor its subsequent disbursement. In his Financial Statement the husband disclosed $17,000 only.
The husband did not refer to the Westpac account nor was there a response by way of the provision of the documents sought for the Westpac accounts in the wife’s solicitor’s letter dated 3 April 2024 (exhibit “18”).
The husband said that he was responsive to the request for documents in particular, the bank statements and that he took them to his solicitor. If they were not provided to the wife’s solicitors, then he does not know why. After the husband was released from giving his evidence, via his solicitor, he conceded that he had not provided the requested documents to his solicitor.
The husband considered his Financial Statement of 28 March 2024 and agreed that the only money disclosed being held in a bank account was with the ANZ Bank in the sum of $1,577 even though annexures to the husband’s Financial Statement deposes to about $15,200 held in various bank accounts.
The bank statements show that two days before signing the Financial Statement the husband withdrew the sum of $80,000 with no mention of the transaction as required in Part M that seeks information as to the disposal of property.
Exhibit “7” establishes that the total of money provided by the husband to his solicitor was in the sum of $126,000.
Exhibit “19” comprises ANZ statements for account number ending …58 for the period 12 November 2020 to 24 October 2023. The relevant statement shows that the account was opened on 12 November 2020 with a deposit of $80,318.59.
The husband is self-employed and considers that he is a casual sole contractor.
He started work in early 2023 after concluding his employment at S Company and agreed that from time to time he would be paid in cash which was not subsequently declared. Doing the best that he could he thought that he received about $10,000 in cash.
The husband agreed that when he arrived in Australia in 2012, he had minimal possessions and possibly a few thousand Euros. He did have a bank account in Country B, but it did not contain any significant amount.
At the commencement of the relationship, during the period that the parties lived in the wife’s parent’s home, the husband did not financially contribute to the bills given that he had not secured employment.
He did not provide any financial assistance to the wife during the period that he returned to Country B.
The husband knew as early as April 2013 that he was not welcome to resume a relationship with the wife, but it is his contention that upon his return the parties were able to reconcile their differences and resume a marital relationship.
As discussed, the husband disputed that the wife had paid the migration agent’s account of $10,000. The husband gave evidence that he requested his employer to loan him the money which was repaid over a period of time. The payslips for the husband’s employment provides some basis for the husband’s contention.
The husband was asked to reflect upon the two cash withdrawals each in the sum of $5,000 on 8 October and 19 November 2014. His response was that he did not withdraw those cash amounts and rather, he says that the wife told him she did it.
The husband’s evidence was unconvincing.
The parties are not agreed as to who paid the household expenses, bills and utility charges during the period of cohabitation. The only bills that were in joint names was the home insurance, gas and electricity. The husband was not certain as to the extent of the accounts that he paid and agreed that he did not meet the costs from his income.
It is likely that the wife was responsible for the payment of the household bills and expenses.
The husband denied that he asked to be reimbursed by the wife for money provided by him for the mortgage. He denied that the wife had told him that she had to borrow money from her parents to pay him back.
He also denied that he had received the cash withdrawals from the H Bank account.
The evidence supports a finding that large sums of money were transferred from the ANZ joint account to the husband’s account. It was put to the husband that a total of $55,000 had been transferred by him. The husband denied that there was any secrecy and it was his evidence that he told the wife about the transfers.
The husband agreed that he had withdrawn $61,000 from various bank accounts which was hidden in his home but in particular.
On 17 July 2023 the husband deposited $50,000 of the $61,000 back into the bank account in order to pay his solicitor.
The husband was asked to consider his Financial Statement filed 25 June 2021 and agreed that it did not disclose that as at 13 May 2021 he had withdrawn $20,000 from ANZ account ending …58. In addition, he had withdrawn $12,000 on 7 July 2021 and a further $10,000 on 27 September 2021 which in part is represented by the cash that the husband retained at his home.
By reference to a joint balance sheet prepared on 13 October 2022, the husband did not disclose the extent of cash money held by him.
Exhibit “22” is a further letter from the wife’s solicitor seeking disclosure of bank statements and an explanation for various withdrawals between November 2020 and August 2022 comprising $77,000.
The husband stated that he did not feel comfortable keeping the money in the bank for fear that he would be the victim of scam but that it was always his intention to return money to the accounts.
The husband’s evidence was unimpressive, and I do not consider he was trying to assist the Court.
Whilst it is difficult to trace the money trail over a period of five years, I am satisfied that the husband engaged in a strategy to keep hidden money that he had retained. It was only the forceful requirement of his solicitors that money be placed into their trust account to ensure continued representation that enabled the husband’s dealings to be disclosed and therefore able to be discovered by the wife.
During the course of the evidence an issue arose as to X’s school fees remaining unpaid. It appears that the parties had an earlier agreement that they would each contribute one half to her school fees however, the last time that the husband paid anything was in 2022.
The husband’s position is whilst he is not prepared to bear any responsibility for school fees not related to X. It is agreed between the parties that school fees in respect of X are to be shared equally.
In re-examination the husband conceded that he had not provided bank statements to his solicitor as had been sought by the wife.
The husband presented as an unreliable witness. He did not satisfy a consideration that he was trying to be helpful to the Court and it is likely that he took active steps to hide significant sums of cash money withdrawn from various accounts.
IS IT JUST AND EQUITABLE TO MAKE PROPERTY SETTLEMENT ORDERS?
Section 79 of the Family Law Act 1975 (Cth) (“the Act”) provides:
(2)the court shall 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 submitted on behalf of the wife that the Court should not be satisfied that it is just and equitable for an order to be made that alters the property interests of the parties pursuant to s 79(2) of the Act.
If the wife’s position is accepted, then no s 79 order needs to be made and the parties would retain their separate legal and equitable interests, free from any claim by the other.
The wife contends that the only property that has been disclosed is the Suburb D property and is held by her and can be traced back to its purchase significantly prior to the commencement of cohabitation with the husband in 2012. In addition, the only current joint property is Motor Vehicle 2 in the possession of the husband which has an agreed value of $1,900, noting that the wife agrees that the vehicle can be retained by the husband even though it was purchased by the wife’s parents.
The husband has not disclosed any interest in property. Whilst he has filed various Financial Statements, it is conceded by him that his current financial statement is replete with both error and significant omission.
The husband relies upon his trial affidavit which as considered is a document that addresses only tangentially the legal and equitable interests of the parties.
Prior to the consideration of s 79(2) by the High Court in Stanford v Stanford [2012] HCA 52 (“Stanford”), the “preferred approach” is best encapsulated in Hickey & Hickey & The Attorney General for the Commonwealth of Australia (2003) FLC 93-143 where the Full Court adopted and endorsed what had been commonly referred to as the “four step approach”.
The wife seeks that the parties each retain their separate legal and equitable interests in property held by them. The husband’s position is to oppose the orders sought but not to advance or seek any other relief.
In Stanford (supra) the majority held:-
35.It will be recalled that section 79(2) provides that “[t]he court shall 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”. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
36.The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. …
(Footnotes omitted)
The Court found that whether it is just and equitable to make an order is not to be answered by assuming that the parties’ rights to all interest in marital property is or should be different from those that then exist.
It is therefore not a matter of assumption that a party to a marriage has a right to an interest in property by reference to matters arising under s 79(4) of the Act. A party cannot pull themselves up by their own bootstraps by asserting a contribution under s 79(4) and therefore use the position to satisfy the obligation imposed by s 79(2).
The following appears in Stanford (supra) at [43]:-
43.By contrast, the bare fact of separation, when involuntary, does not show that it is just and equitable to make a property settlement order. It does not permit a court to disregard the rights and interests of the parties in their respective property and to make whatever orders may seem to it to be fair and just.
(Footnotes omitted)
While clearly the Court has some significant obligation to consider the justice and equity of making any order that adjusts the property rights of parties, I do not consider that Stanford (supra) goes so far as to suggest that there can be no regard to the matters that might fall for consideration under s 79(4) of the Act. It is the very nature of the suite of contributions made by parties to a relationship which in and of themselves have the ability to create equitable interests in the property of each of them.
In Stanford (supra) the High Court sought to define its likely application to future cases in the following manner:-
42.In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as a result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
(Emphasis as per original)
In relation to the previously quoted paragraph in Stanford, the majority of the Full Court in Bevan & Bevan (2013) FLC 93-545 (“Bevan”) said:-
70.In our experience, the circumstances described in the paragraph above encapsulate the vast majority of cases. Hence, the reminder in Stanford of the pivotal role of s 79(2) is unlikely to have any impact in most cases, although it will serve as a reminder to trial judges that the precondition to making any order is a finding that it is just and equitable to do so.
The Full Court in Bevan (supra) stated that the decision of Stanford (supra) can be reduced to three fundamental propositions at [73] and summarised as follows:-
1.The Court needs to consider the existing property interests of the parties and to identify those interests by reference to common law and equity;
2.The discretion must be exercised in accordance with legal principles and not in respect of any assumption that the parties interests should be different from those determined by common law equity; and
3. Section 79(2) cannot be conflated by reference to matters in s 79(4).
In Zaruba & Zaruba (2017) FLC 93-776 the Full Court said:-
38.In the vast majority of cases, it will be appropriate to address the s 79(2) question by ascertaining the legal and equitable interests in property without making distinctions between individual assets. That is because [referring to Stanford] the “express and implicit assumptions that underpinned the existing property arrangements” can be seen to apply (to the extent and degree to which they do apply) to all of the property of the parties or either of them, including property in which the legal interests vary.
39.However, the position is likely to be different in circumstances where, as here, the characteristics of the property and the circumstances of its acquisition, improvement and the like can be seen to differ significantly and where, as here, the parties’ relationship has taken on a quite different characteristics during the period to which the s 79 inquiry is directed.
I am of the view that a determination as to whether it is just and equitable to embark upon the exercise of making a property settlement order is not able to be determined in a vacuum. The starting point is to consider the legal and equitable interests of the parties. Whilst in most cases there will be a concession that the consideration arising from s 79(2) of the Act is easily satisfied, other cases may require a more detailed level of investigation.
Section 79(4) of the Act is a consideration of what order should be made by way of property settlement once it has been determined that it is just and equitable to embark upon the exercise.
As was considered by the High Court in Stanford (supra), there is no concept of a moral claim or obligation arising merely because the parties were in a marital or de facto relationship or that a consideration of contributions that may be relevant to s 79(4) underpin the exercise required to be undertaken pursuant to s 79(2) of the Act. To do so would be to conflate the two provisions.
In Chapman & Chapman (2014) FLC 93-592 (“Chapman”), the Full Court considered the following remarks in Bevan (supra) and said as follows:
9.… 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), along with all other relevant considerations…
Strickland and Murphy JJ went on and considered that if what was said by the plurality in Bevan (supra) was that s 79(4) matters should be mandatory when considering the s 79(2) question, then that was an incorrect approach.
A consideration of the conduct and behaviour of the parties may be relevant in order to determine the legal and equitable interests of the parties and whether they are, or are not, properly reflected in the pool of property.
Providing that the conduct of the parties as potentially being relevant to determine their legal and equitable interests are kept separate and distinct from the manner in which those contributions would be brought to account to consider an adjustment of property as between the parties, I consider the exercise consistent with the judgment in Stanford and their Honours summary in Chapman at [26].
The gravamen of the wife’s case is that the relationship was of short duration and whilst there is a child, the husband’s involvement was minimal, and the parties conducted their affairs such that they kept their finances almost entirely separate. Whilst that alone is not determinative, it is nonetheless a factor.
For his part the husband argues that the parties intended to be in a marital relationship with each of them working to provide financial security for the family.
The wife has long argued that it would not be just and equitable to consider orders for property settlement and that the parties should retain their current interest in property held by each of them.
The wife relies upon the evidence that the period of cohabitation was of seven years duration with the husband being either unemployed or overseas for more than two years.
The significant asset of the parties is the Suburb D property. Whilst a matter of judicial determination, the wife contends that the parties kept separate accounts and that any significant payment made directly or indirectly coming from the husband’s financial resources was to be reimbursed by the wife.
During the course of the relationship the wife does not concede that the husband fulfilled any meaningful role as a homemaker and, certainly after separation, there was no financial or non‑financial support made other than the payment of child support which was a statutory obligation.
The further significant feature was the wife’s reliance upon unchallenged evidence that the husband perpetrated family violence on her and her children from a previous relationship. It is argued that entrenched and ongoing family violence must be the very antithesis of any assertion that the parties engaged in what might be considered a “marital partnership” in order to support the child of the marriage and promote the financial advancement and security of the family.
Re: Sabri; ex parte Brien (1997) FLC 92-732 was a decision that considered whether it was appropriate to treat the wife’s conduct as a homemaker, arising from her care of the family, as sufficient to support the establishment of a constructive trust which limited the scope of property that could vest in the husband’s trustee in bankruptcy.
Chisholm J gave careful consideration to the evidence of the wife which included direct financial contributions to the household from money received from her family, her primary care of the children on a full-time basis and her undertaking all of the household chores including cleaning the house, cooking, washing, ironing and maintenance of the garden.
His Honour summarised the position of the wife at 83,862 as follows:
It is not necessary for the contributions to be made directly to the acquisition or improvement of the property. Where parties agree to a pooling of financial resources and non-financial resources such as work for the benefit of the family the circumstances can give rise to a constructive trust. In Baumgartner itself, the High Court discussed the evidence in some detail and concluded that:-
“the parties have pooled their earnings for the purposes of their joint relationship, one of the purposes of that relationship being to secure accommodation for themselves and their child. Their contributions, financial and otherwise, to the acquisition of the land, the building of the house, the purchase of furniture and the making of their home, were on the basis of, and for the purposes of, that joint relationship.”
In my view it is a clear inference from the wife’s affidavit that the relationship between the parties in this case was of a similar kind. In such relationships, the matrimonial home takes a special place. It is normally the main asset of the parties and it is the place where they live. It is not necessary to review the considerable line of authorities. In my view the facts outlined in the wife’s affidavit provide sufficient basis for finding that she had an interest arising from a constructive trust. It is of course conceivable that there might have been other facts which would prevent this conclusion, but the Trustee has not sought to cross-examine the wife or lead contrary evidence on the subject, or, indeed, to set aside the s 79 order.
(Citations omitted)
It can be readily seen that the obligation was on the husband to establish that the requirement in s 79(2) of the Act was satisfied given that he was put on notice by the wife of her opposition to his application for settlement of property.
It would have been immediately apparent to the husband as to the case that he had to meet and the requirement to establish that s 79(2) of the Act is satisfied.
TABLE OF ASSETS
The parties tendered a balance sheet on 24 May 2024 which sets out the agreed and disputed assets as follows:
Assets
DESCRIPTION OWNERSHIP VALUE C Street, Suburb D Wife $1,000,000 Motor Vehicle 1 Wife $24,000 Motor Vehicle 2 Joint $1,900 ANZ Bank Account ending …59 Wife $8,975 NAB Bank Account ending …56 Wife $2,195 ANZ Bank Account ending …56 Wife $31,011 ANZ Bank Account ending …51 Wife $177 ANZ Bank Account ending …69 Husband $510 Westpac Bank Account ending …82 Husband $9,568 Westpac Bank Account ending …07 Husband $1,944 Westpac Bank Account ending …74 Wife $5,438 Household contents Wife $7,000 Household contents Husband $1,000 Money in Starke Lawyers trust account Husband $61,484 TOTAL $1,155,202 Addbacks
DESCRIPTION OWNERSHIP VALUE Cash (in dispute) Husband $12,000 Legal costs paid (in dispute) Wife $36,715 Legal costs paid (in dispute) Husband $65,315 TOTAL $114,030 Liabilities
DESCRIPTION OWNERSHIP VALUE ANZ Bank mortgage (Suburb D property) (in dispute) Wife $105,819 Loan from Mr L & Ms K (in dispute) Wife $77,000 Loan from Ms M (in dispute) Wife $10,000 NAB Credit Card (in dispute) Wife $1,861 P School overdue school fees Joint $13,024 TOTAL $207,704 Superannuation
DESCRIPTION OWNERSHIP VALUE Super Fund 1 Wife $128,311 Super Fund 1 Husband $41,008 TOTAL $169,319 SUBURB D PROPERTY
The wife purchased the Suburb D property in 2002. In mid-2003 the wife obtained a second ANZ mortgage to build the home. The wife occupied the completed premises from mid-2004.
Following the breakdown of the wife’s first marriage, she paid her former husband $120,000 to effect the property settlement.
The parties jointly instructed a single expert valuer to value the Suburb D property as at:
·April 2012;
·1 December 2019; and
·The current market value.
The three dates coincide with the commencement of cohabitation, the date of separation and the current value of the Suburb D property.
The valuer provided a report dated 22 February 2024 which considered comparable sale evidence as at April 2012 by reference to five relevant property sales.
The summary at page 9 of the valuation report places a market value on the property as at April 2012 in the sum of $550,000.
The value as at 1 December 2019 was assessed at $700,000 and the current market value is assessed at $1,000,000.
The single expert analysed the building rate in dollars per square metre (mean) at just over $2,000 and the site area rate (mean) at just under $1,500.
As at 1 December 2019 the building rate (mean) was approximately $2,700 and the site area rate (mean) was approximately$1,560,000.
In terms of current sales, the single expert assessed the building rate (mean) at approximately $4,200 and the site area rate (mean) at approximately $2,800.
In relation to the current valuation, a consideration of comparable sales evidence by way of direct comparison provided an equivalent main area of 300 square metres at $3,335 per square metre resulting in a value of $1,000,500 rounded down to $1,000,000.
A valuation based upon the summation method which separates land area, building area and sundries produced a value of $999,500 rounded up to $1,000,000.
As a separate issue, the valuer was also requested to undertake a current rental assessment resulting in a rental value of the property at $700 per week.
The relevance of the method and manner by which the valuer considered the value of the Suburb D property at the three nominated dates enables a finding that the current value is a reflection of the natural increase and capital gain as a result of the efflux of time and the application of market forces.
There is nothing in the valuation report which indicates that the property value has in some way been enhanced to any significant degree by reason of renovation and/or improvement to the Suburb D property or by any conduct of the husband.
A corresponding consideration is the history of the mortgage loan which now stands at $105,819.
The husband highlights that as at 14 March 2013, the outstanding loan was $181,537. By 26 February 2019 the amount outstanding had been reduced to $1,827.
As at 26 August 2019, the outstanding loan was in the sum of $3,479 however by 25 February 2022 it had increased to $91,912 and has now further increased to its current level.
The husband argues that the total of his taxable income for the relevant period was $296,703 whereas the total of the wife’s taxable income for the same period was $142,796. The husband’s evidence is that his income went into the joint account from which the ANZ mortgage was paid along with other expenses relating to the Suburb D property.
The argument of the husband, relevant to s 79(2) of the Act, is that the parties had a common intention to maximise and strengthen their financial position and that the financial contribution by the husband should be considered as establishing an equitable interest in the sense that unless he considered that his income would have the effect of accruing an interest in the Suburb D property, he would not have done so.
The wife counters the husband’s argument by highlighting her ownership of the property for approximately seven years before cohabitation and that at the time, as has now been established by the valuation report, the property had a significant net value.
It is not controversial that the wife obtained the sum of $120,000 from her parents in order to pay out her former husband and retain both the legal and equitable interest in the Suburb D property. The husband does not accept that there is any liability by the wife to her parents, but in any event, he does not consider that he should be responsible even if there were to be a loan established.
The gravamen of the wife’s evidence is that the H Bank and ANZ Access accounts, whilst in the joint names of the parties, were entirely operated by the husband. Whilst I accept that the wife may have had some capacity via a banking app to view the statements, I prefer her evidence over that of the husband that she did not control the accounts, nor did she access them.
The wife alleges at [170] of her trial affidavit that during the course of the relationship the husband withdrew large sums of cash, the use of which was undisclosed.
It is now apparent that the husband was able to accumulate significant amounts of cash which he retained in and around his house but in particular, under his mattress.
The husband also conceded that at times he worked for cash which was not declared.
The significant issue is whether the husband’s evidence that the Suburb D mortgage was paid from accounts into which he contributed his income is to be offset by the wife’s evidence that the husband demanded to be reimbursed for any expenses that he incurred or paid and that she accessed those monies from her parents.
As discussed, I have accepted that the wife’s parents provided substantial money as may be requested by the wife, but in any event as set out in exhibit “5”.
The conundrum is that the cash provided by the wife’s parents either was given to the husband upon his request as promoted by the wife or she retained it. Whilst either option is possible, I have found that the husband’s evidence is unreliable and where there is a conflict, I prefer the evidence of the wife to that of the husband.
In addition, there was no suggestion put to the wife that the money she received from her parents, putting aside whether it was a loan or a gift, was in some way retained by her.
Addbacks
I am satisfied on the evidence that the husband retained the sum of $12,000 following separation. There is no evidence from the husband that the money was spent on the normal exigencies of life and given the unsatisfactory nature of the husband’s evidence, in the absence of any explanation as to how the money was disbursed, it is possible that the money has been retained in some form and is represented in the cash held by him.
In Weir & Weir (1993) FLC 92-338 the Full Court considered the manner in which unsatisfactory evidence involving non-disclosure appears at 79,593 as follows:
It seems to ask that once it has been established that there has been a deliberate non‑disclosure, which follows from his Honours findings in this case, then the court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
I consider that I am entitled to take a robust approach to the evidence and not assume that the money has been spent. The correct approach is not to consider whether the money should be treated as an addback but rather that it has been retained.
It is apparent from exhibit “7”, which comprises the Costs Notices of the parties, that the husband was able to provide his solicitors with substantial lump sum payments between 10 March 2021 and 28 March 2024 in the total sum of $126,800.
The husband’s evidence does not support a credible explanation as to how those monies could have been accumulated.
I also propose to addback the legal costs paid by each of the parties as to $36,715 for the wife and $65,315 to the husband.
Liabilities
The significant escalation in the mortgage is as and from 26 February 2021 when the mortgage balance increased from $4,366 to $39,767.
Whilst it is not entirely clear how the mortgage accrued in the relevant period, it is likely that a substantial sum was used to pay the wife’s previous solicitors and to place her current solicitors in funds.
The balance of the withdrawals are consistent with the wife’s evidence as to modest renovation and improvement to the Suburb D property.
Superannuation
The superannuation interest of the wife is significantly higher than that of the husband. That is likely to be a reflection of the initial superannuation balance as at the commencement of the relationship as opposed to a balance of nil for the husband.
CONCLUSION
It could not be said that the evidence supports a finding that the husband had a significant involvement in the care and contribution as a homemaker to the child during the relationship. The husband has not seen the child since 2020 and final orders were made by consent for the child to live with the wife and spend no time with the husband. It is not in dispute that other than the child support payments as assessed and a commitment to share school fees, the husband has not financially contributed to the child since separation. There is also the spectre of the husband having a second family in Country B.
The wife did not consider that husband had a significant involvement in the care and contribution as a homemaker to the child during the relationship.
The wife’s evidence is that the husband was rarely at home and when he was, he did not participate to any significant degree with the parenting of the child. There was an expectation in the household that the needs of the child would be catered for by the wife.
Moreover, the wife’s evidence is that the husband was aggressive towards the child even from a young age.
It appears that the husband was of little assistance in terms of the child’s curricular and extra‑curricular activities.
Whilst the husband’s contention is that when he was not working he provided substantial assistance in terms of the ongoing care of X, on balance I consider the wife’s evidence to be more credible than the assertions of the husband.
It is not in dispute that the husband returned to Country B in late 2012 and did not return until late 2013. There was at least one further trip to Country B taken by the husband in 2018.
The entire period of cohabitation was 7 years and 6 months of which the husband spent nearly a year in Country B. For a further period of 1 year and 9 months the husband was unemployed.
In all the circumstances, I am unable to find that there should be any alteration of the legal and equitable interests of each of the parties as set out in the agreed list of assets.
As such, I do not consider that it is appropriate to consider the provisions of s 79(4) of the Act in order to determine what orders should be made by way of settlement of property.
I have found the husband’s evidence as to his financial contributions to be unreliable. I am satisfied that the husband well understood the basis for the wife’s request for the discovery and production of relevant bank statements which if produced, would have enabled the wife to discover the extent of cash retained by the husband.
The husband’s evidence was unimpressive in his initial assertion that he had provided all relevant documents as sought by the wife to his solicitor. Following the conclusion of the husband’s evidence, via his counsel, he then conceded that the requested documents had not been discovered nor provided to his solicitor.
I do not consider that the engagement by the husband in the marital relationship was such that either his financial input or his homemaker activities could be seen as rising to the level of a constructive trust.
I have accepted the broad thrust of the wife’s evidence as to the aggressive conduct of the husband and consider that it must be seen as the very opposite of a relationship intending to provide an appropriate environment for the care of children and the provision of financial security for the family.
It is also a relevant consideration that the seven-year period of cohabitation, whilst short, was further impacted by the significant time the husband spent in Country B. In all the circumstances, I am unable to find that there should be any alteration of the legal and equitable interests of each of the parties as set out in the agreed list of assets.
As such, I do not consider that the provisions of s 79(2) of the Act are satisfied and it would therefore not be appropriate to have regard to the necessary steps pursuant to s 79(4) of the Act to determine what orders should be made by way of settlement of property.
I propose to dismiss the proceedings and make no further orders other than to note that the husband is to retain Motor Vehicle 2.
ALTERNATIVE APPROACH
In Fielding & Nichol (2014) FLC 93-617 Thackray J considered the application of s 79(2) of the Act and found that it was not just and equitable to embark upon a consideration pursuant to s 79(4).
However, Thackray J considered the alternate approach as being a permissible consideration. His Honours remarks at [54] are applicable in the current circumstances:
Although the decision in Stanford v Stanford has reinforced that the s 79(2) requirement is a stand-alone, anterior issue, it is also true that the High Court has emphasised that the requirement will be readily satisfied in most cases where the relationship is terminated voluntarily. Although Bevan & Bevan serves as a good example of how the s 79(2) requirement can prove to be a barrier to granting any relief even in a long marriage that was terminated voluntarily, I recognise such an outcome is likely to be most uncommon. I also accept that reasonable minds will differ in considering whether it is just and equitable in a particular case to deny a party that to which they might otherwise have been entitled by reference to the matters set out in s 79(4). The present is potentially such a case, given the parties were together for 12 years; their relationship was terminated voluntarily; and they did not enter into a binding financial agreement.
Whilst my primary position is that it would not be just and equitable to embark upon a consideration of property settlement pursuant to s 79(4) of the Act, I consider it permissible to do so if for no other reason than to ensure that there is finality brought to the proceedings but in any event, an assessment of s 79(4)(a)-(e) of the Act results in a similar conclusion.
Table of Assets - Wife
C Street, Suburb D Wife $1,000,000 Motor Vehicle 1 Wife $24,000 ANZ bank account ending …59 Wife $8,975 NAB bank account ending …56 Wife $2,195 ANZ bank account ending …56 Wife $31,011 ANZ bank account ending …51 Wife $177 Westpac account ending …74 Wife $5,438 Household contents Wife $7,000 Addback of legal fees Wife $36,715 TOTAL $1,115,511 Less mortgage liability Wife $105,819 Less loan from Ms M Wife $10,000 Less NAB credit card Wife $1,861 NET BALANCE $997,831 Table of Assets - Husband
Motor Vehicle 2 Joint $1,900 ANZ bank account ending …69 Husband $510 Westpac bank account ending …82 Husband $9,568 Westpac bank account ending …07 Husband $1,944 Household contents Husband $1,000 Money in Starke Lawyers trust account Husband $61,484 Addback of legal fees Husband $65,312 Addback of money retained by husband Husband $12,000 TOTAL $153,721 Contributions
As considered, the Suburb D property was purchased by the wife in 2002 with a valuation as at the date of the commencement of cohabitation of $550,000 and a current value of $1,000,000.
The wife’s contention is that the husband was secretive as to his financial circumstances and whilst there existed joint bank accounts, they were joint in name only. I have accepted the evidence of the wife that the accounts were predominantly controlled by the husband.
To the extent that there could be considered any intermingling of funds, the contribution by the husband to the payment of the mortgage was limited.
The relationship between the parties can be considered as a short marriage and whilst there is a child, the involvement by the husband in terms of homemaker duties can be considered at best, minimal.
For a significant period, the husband had returned to Country B for personal reasons that may have included the husband’s involvement in a second family in Country B.
The wife’s initial financial contributions are significant. The weight to be given to the type of contribution made by her interest in the Suburb D property at the commencement of the relationship is considered by the Full Court in Pierce & Pierce (1999) FLC 92-844 at 85,888:
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 contribution 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 price of the former matrimonial home…
It is not controversial that following separation the husband made no contribution to the Suburb D property nor was he involved in matters relating to the care of the child.
I also give consideration to the husband’s argument that following separation the wife had the advantage of remaining in the Suburb D property whereas the husband was required to find alternate accommodation.
The husband provided no assistance in presenting evidence that would enable an understanding of his financial circumstances and accommodation costs following separation. As considered, the information contained in the husband’s Financial Statement of 28 March 2024 is unreliable.
The husband’s trial affidavit is silent as to the history of his accommodation post separation.
Whilst it is likely that the husband incurred rental costs, I have not been provided with assistance in being able to consider the costs incurred by the wife in the retention of the Suburb D property taking into account that the occupants comprise the wife, her two children from a former relationship and the child of the current relationship.
The wife also seeks to bring to account aggressive and violent conduct by the husband that reached a level that made the wife’s non-financial contributions more difficult.
I have found that there was little or no challenge by the husband to the wife’s allegations of violence as set out in her trial affidavit.
Family violence cannot be ignored and if established, must be given serious consideration in determining the weight to be given to the contributions of each of the parties.
I do not ignore that a component of the current asset pool includes money retained by the husband in terms of a substantial cash amount being held by his solicitors and the addback of solicitor’s fees incurred and paid.
I also bring to account the considerable financial contribution of the mother’s parents in the sum of $77,000 during the period of cohabitation.
The exercise and consideration for treatment of the contributions by each of the parties should be determined holistically.
In all the circumstances, I would assess the contributions of the parties to be reflected as to 85/15 in favour of the wife.
Section 75(2) factors
The uncertainty as to the husband’s current financial circumstances makes a comparison as between the parties difficult.
I am satisfied that the wife has secure employment albeit with a modest salary. She has the obligation to provide financially for the three children and whilst the husband is currently meeting his child support assessment, I do not ignore that the wife bears the overwhelming financial obligation in respect of the child.
The parties have agreed to share in the child’s education costs but even bringing to account the child support paid, the costs of the child over and above child support received, are significant and ongoing.
I consider that there should be an adjustment of 3 per cent in favour of the wife which when considered as a differential amount, is the equivalent of about $59,869.
Taking into account the age of the parties and the child, the apportionment of 88/12 in favour of the wife satisfies a consideration that it is just and equitable. This would result in an entitlement to the husband of $119,739 which is significantly less than the property retained by the husband.
Superannuation
The circumstances in respect of the superannuation entitlement of each of the parties bring different considerations as to contribution and s 75(2) factors than those that apply to the non‑superannuation assets.
It could not be said that the involvement of the husband enabled the wife to better attend to her employment.
The wife’s superannuation interest is an accumulation fund and given that for a significant period of time the husband was overseas and then unemployed, there is no basis to consider an adjustment for contribution or s 75(2) factors.
Accordingly, there is no basis to adjust the property interests of the parties.
I make orders as appear at the commencement of these reasons.
I certify that the preceding two hundred and fifty-two (252) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 14 August 2024
0