GUNTI and GUNTI
[2017] FCWA 122
•18 OCTOBER 2017
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: GUNTI and GUNTI [2017] FCWA 122
CORAM: MONCRIEFF J
HEARD: 29 AUGUST 2017
DELIVERED : 18 OCTOBER 2017
FILE NO/S: PTW 4794 of 2015
BETWEEN: MS GUNTI
Applicant
AND
MR GUNTI
Respondent
Catchwords:
PROPERTY SETTLEMENT – Small asset pool – assessment of contributions and s 75(2) factors – turns on own facts
Legislation:
Family Law Act 1975 (Cth)
Category: Not Reportable
Representation:
Counsel:
Applicant: Self Represented Litigant
Respondent: Self Represented Litigant
Solicitors:
Applicant: Self Represented Litigant
Respondent: Self Represented Litigant
Case(s) referred to in judgment(s):
Stanford v Stanford (2012) 247 CLR 108
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1[Ms Gunti] (“the applicant”) and [Mr Gunti] (“the respondent”) married [overseas] [in] 2001.
2They immigrated to Australia in 2004 and have resided in Perth since.
3There are two children of their marriage; [Child A] born [in] 2007 and [Child B] born [in] 2010.
4The parties separated on or about 7 June 2015 and were divorced [in] 2017.
5Proceedings were commenced in this Court by the applicant on 20 August 2015 with respect to the resolution of financial matters as between the parties.
6Child-related proceedings were raised in the response filed by the respondent on 30 October 2015, although the child-related proceedings have since been resolved with the assistance of an Independent Children’s Lawyer. On 21 June 2016, orders were made by Magistrate Monaghan as follows: (Unless otherwise specified, all errors and emphasis in extracts are as in original).
1The Applicant, [MS GUNTI] have sole parental responsibility for the children, [CHILD A], born [in] 2007 and [CHILD B], born [in] 2015.
2The said children live with the Applicant.
3The children spend time with the Respondent, [MR GUNTI], as may agreed between the parties from time to time.
4The appointment for the Independent Children’s Lawyer be and is hereby discharged.
5The proceedings insofar as they related to parenting orders be and are hereby dismissed.
7The parties however have not resolved financial proceedings between them.
8The applicant filed a minute of orders setting out the orders she sought, and whilst they obtained some matters of argument, I replicate the same in full below: (attachments omitted)
Minute of the proposed orders
10 April 2017
1.I am [Ms Gunti] and I continue to reside in the former matrimonial home with the two children of the marriage, at
[Property A].
2.I wish to be able to retain [Property A]. I am solely responsible for the care for our two children, currently aged 6 and 9. On 21 June 2016, orders were made that I have sole parental responsibility for our two children.
3.The home is registered in the sole name of [Mr Gunti]. After our separation, [Mr Gunti] tried to sell the home without my consent and withdrew at least $25,000 from the home loan bank account.
4.I was granted injunction in October 2015, restraining [Mr Gunti] from selling, disposing, encumbering or otherwise dealing with his rights, title and interest in [Property A], including drawing down on the mortgage registered against the home.
5.After our separation, I have been making the repayments on the mortgage. I have been making payments to the Strata, Local council, Water Corporation, Alinta energy, Synergy without assistance from [Mr Gunti].
6.I meet all the needs and costs of the children, accommodation, food, cloths, health, educational, social, financial, including their extra-curricular activities.
7.CSA assessed and collects $7.93 a week in child support payment.
8.The unit I live in at [Property A] was purchased for $430,000 on 29/08/12. A current market valuation for Settlement Purposes has been prepared by an Independent licensed Valuer; the property is valued at $400,000 as on 31/3/2017.
A copy of the report and invoice is attached.
9.The remaining mortgage registered against the home is $ 345,974.64 as on 19/11/16. I am not able to access the mortgage account since January 2017. My request to the bank to access the loan account and to make reasonable inquiry regarding Mortgage update is declined.
10.In accordance with an existing Family Court Order dated 9 October 2015, [Mr Gunti] was ordered to authorize the mortgage Westpac Banking Corporation to answer any inquiries as may be made by me from time to time in relation to the mortgage registered against the Certificate of Title for [Property A].
A copy of the order is attached.
11.I request to be an authorized person to have an immediate access to the mortgage account. I have been solely responsible to make the repayments after our separation.
12.I request to transfer immediately the internet service the TPG ADSL2 Broadband+ with home phone + mobile no. [XXXXX XXXXX ] supplied to [Property A]. The service difficulty exists and internet connection is lost most days and is ongoing issue, causing delays with children school home work and daily online submission. I have no access to this service, [Mr Gunti] strictly informed the service provider to restrict my access to the account. I like to upgrade this service to have it running without difficulty.
A copy of the Change of Ownership Form is attached.
13.I request to be registered as an authorized person as occupier of property with Council, Water Corporation, Strata and Alinta energy to avoid overdue account. I have no access to these service accounts and I receive overdue Invoice's by post.
14.I have been the primary carer of the children prior to and after the separation. I anticipate that I will be responsible in the future for meeting all the needs and costs of the children, including accommodation, food, clothing, education costs, private health insurance without any significant support from [Mr Gunti].
15.I am not cohabiting with any other person.
16.I respectfully request that the court make orders that will enable me and the two children to reside and retain the former matrimonial home [Property A].
9The respondent in his form 1A response filed 30 October 2015 had sought orders that:
1.[Property A] be listed for sale and upon a sale of the same all liabilities of the marriage be paid and the available proceeds be distributed 60% to the Husband and 40% to the Wife
2.Such order as may be necessary to effect a division of the parties combined superannuation entitlements 60% to the husband and 40% to the Wife.
10In the context of the financial proceedings orders were made, by consent, on 6 October 2015 in the following terms:
Minute of Consent Orders (Property)
Until further order:
1.On a without admission basis pursuant to section 114 of the Family Law Act 1975 (Cth), an injunction be granted restraining the husband [Mr Gunti] from entering the former matrimonial home [Property A].
2.On a without admission basis an injunction be granted restraining the husband [Mr Gunti] from selling, disposing, encumbering or otherwise dealing with his right, title and interest in [Property A], including drawing down on the mortgage registered against the Certificate of Title for [Property A].
3.Provided the husband has not drawn down on the mortgage in the last 14 days the wife be responsible for all mortgage repayments to the Westpac Banking Corporation in relation to loans secured by [Property A].
4.The husband authorise the mortgagee Westpac Banking Corporation to answer at the wife's expense any reasonable inquiries as may be made by her or on her behalf from time to time in relation to the mortgage registered against the Certificate of Title for [Property A].
5.The parties be at liberty to provide a copy of these orders to the mortgagee Westpac Banking Corporation.
6.The Respondent have 21 days to file his Form 1A response, Form 13 Financial Statement and Affidavit.
7.The costs of this application be reserved.
11The parties attended a conciliation conference conducted by Registrar Forrest on 10 June 2016 in the context of which orders were made for the filing of affidavit evidence for the purposes of trial.
12The respondent had filed a statement of financial circumstances and affidavit on 30 October 2015, however he has not complied with the orders of 10 June 2016 as to the filing of trial material, although he attended all court events, or had legal representation, including readiness hearings conducted on 15 February 2017 and 2 May 2017.
13When the matter came on before me for trial it was apparent that the respondent’s circumstances had changed, the changes were relevant and that there was a significant factual dispute between the parties.
14Further, and significantly, the respondent had failed to comply with the orders requiring him to authorise the applicant to obtain information from the Westpac Banking Corporation (“Westpac”) with respect to transactions on accounts operated by the respondent, but in particular the mortgage account secured as against the principal asset of the parties being Property A.
15When the respondent was questioned about his failure to comply with previous orders he provided medical reports indicating he was diagnosed with [a medical condition] in 2015.
16He suggested that he did not have the mental capacity to prepare answering documents. His assertions in this regard, however, were not consistent with his articulation of issues that he saw as important, albeit often expressed aggressively, before me. By way of example, in an exchange between myself and the respondent, he stated he did not have “the brain” to execute and file his documents and then proceeded to assert that the applicant’s “affidavit is all wrong” and that he had “evidence to prove every single point she has wasted in the affidavit” and wished to cross-examine her on these.
17He did however, through the use of his mobile phone, provide updated balances for the secured accounts with Westpac and his superannuation entitlements. Additionally the respondent provided the relevant details for internet access to the accounts. Given that he was so easily able to do so when called upon in open court, it beggars belief that he would not have been able to attend to the provision of the authority as ordered.
18I ordered him to comply with that order within 24 hours to enable the applicant to satisfy herself as to prior transactions on the accounts.
19At the commencement of trial I attempted on several occasions to elicit from the respondent what his specific response was to the application and the terms of the orders the applicant sought. The respondent’s presentation was at times odd and somewhat histrionic, and varied between his indicating that the Court should “divide the, whatever there is there, divide it and I want to go back home. I just want to sleep. I don’t want to come back again. Give it, whatever you want to give judgement, give it and let me go. I am – I have no patience to come in the court now. I’ve gone through so much. Please sir, give whatever the normal policy is” to him demanding to be paid 85 per cent of an unspecified pool of assets.
Other applications pending at trial
20At the commencement of trial there were two other applications that had been filed by the applicant to be considered. The first was an application filed 14 August 2017 seeking leave to file and rely upon a valuation of Property A prepared by a licensed valuer.
21Prior orders had contemplated the appointment of a single expert, however, none such had been appointed. Given the communication difficulties between the parties, the existence of violence restraining orders against the respondent and issues regarding his non-compliance with previous orders, I considered the steps taken by the applicant to secure a separate valuation of the property to be prudent, despite the respondent’s opposition apparently based in his belief that the applicant had obtained numerous appraisals previously, and that the valuation in question was inaccurate. I granted leave to the applicant to rely upon the valuation.
22The applicant had also filed a contravention application on 14 August 2017 arising from the respondent’s alleged breach of the order requiring him to provide the authority referred to in the 6 October 2015 orders to Westpac to which I have referred.
23The applicant was content not to prosecute the application but rather focus on a resolution of the substantial issues as between the parties, notwithstanding the fact that it was abundantly clear to the Court that the respondent had failed to comply with his obligations as prescribed in para four of the minute of consent orders forming part of the orders of 6 October 2015.
24The respondent indicated that he wished to cross-examine the applicant and claimed to have evidence that would establish the numerous falsehoods that the respondent said were contained in her material.
25Given the absence of transactional information on the mortgage account I offered to the parties that I would give leave to the applicant to issue such subpoena as she may be advised to Westpac, extend the time for the respondent to file proper trial material and fix a date for the further hearing of the matter, acknowledging that the respondent had had some difficulties compiling his court documents and as such gave him the option of adjourning the trial. Additionally, I suggested to the respondent that he could seek assistance from a community legal centre in compiling his documents, but he advised he had “looked at that avenue”.
26Ultimately, however, the respondent indicated that he did not wish to have the proceedings adjourned and he elected not to seek to cross-examine the applicant, although I did advise him that his opportunities may be limited given his failure to provide any current material to the Court or disclose any relevant documentation. The respondent then elected simply to leave the matter in the hands of the Court on the basis of the information available to me and on the basis that he maintained his claim for 85 per cent of an undefined pool.
27I advised the respondent that in the course of my deliberations I would have to have regard to the fact that the applicant had solely maintained the children and the expenses relating to Property A since the parties’ separation, notwithstanding the fact that on his own evidence the respondent had previously deposed to earning an income of $90,000 a year, albeit that he was now in receipt of a disability pension and therefore unlikely to be able to assist in the support of the parties’ children.
28The respondent then attempted to bargain with the Court on the basis that “if I’m able to see the kids, I will be more happy to give them a lot of love and dollars”.
29The respondent is presently not having contact with the children.
30The respondent made it abundantly clear that he did not wish to return to Court and wished me to proceed to determine the matter.
31Accordingly I proceed on the basis of the evidence I have which renders the matter effectively undefended, save for some unsupported assertions made by the respondent as to the value of some assets in the possession of the applicant and some medical records from 2015 relevant to the respondent’s health.
The composition of evidence
32
The applicant relied upon her trial affidavit affirmed and filed 23 January 2017. Additionally she had filed a statement of financial circumstances also affirmed and filed 23 January 2017 in advance of a readiness hearing scheduled for
15 February 2017.
33She also sought to rely upon the valuation report [for Property A] dated 31 March 2017, accepted for filing pursuant to my order referred to above.
34She had also filed a detailed minute as I have set out above and papers for the judge in accordance with the directions given on 2 May 2017.
35The only material filed by the respondent was that which he filed in October 2015 with his response to the initiating application.
36I attempted to settle a schedule of assets and liabilities with the parties. The applicant had set out her assets and liabilities position in her statement of financial circumstances, which she updated with some brief oral evidence. I engaged with the respondent at the bar table and invited him to prepare a schedule of assets and liabilities but on the basis that I accepted the valuation for the property as provided for in the valuation and the updated mortgage balances and superannuation balances that he had provided from his mobile phone, which both the applicant and I had inspected.
37The applicant’s updating evidence was very brief and upon which she was not cross-examined. It was clear that she had not been afforded any procedural fairness by the respondent. It was at that point that I indicated to the respondent I was prepared to adjourn the proceedings to enable him to obtain advice, although he had previously been represented by a practitioner experienced in family law matters, and file his material.
38My observations of the respondent were limited to his conduct at the bar table.
Background
39As seen the parties married [overseas] and immigrated to Australia in 2004.
40Following the parties’ separation, on the applicant’s case, the respondent was charged with criminal offences relating to his assault upon the applicant. He was subsequently charged with breaching the violence restraining order obtained by the applicant against him.
41Notwithstanding the respondent’s protestations and the claims made to his medical practitioners that he had been frequently assaulted by the applicant, he pleaded guilty to assaulting her and breaching the violence restraining order in the Magistrates Court in 2016.
42Each of the parties have tertiary qualifications, the applicant a [bachelor of arts] and a [masters of science] and the respondent a [masters in engineering] which he obtained subsequent to the parties’ immigration.
43The applicant also obtained a post-graduate [diploma in business] whilst she was taking maternity leave from her employment with [Business A].
44In 2014, when the younger of the children turned four years of age, the applicant commenced working in [administrative services] on a part-time basis which was followed by casual employment at [Business B] where she remains employed [in administrative services].
45Following the respondent completing his studies in Australia, in addition to the degrees he obtained [overseas], he obtained work in [engineering] roles on a casual basis and studied to become a [certified engineer], a qualification he achieved in 2011.
46From about 2010 until the parties separated, the respondent was employed full-time with an income which he deposed to as at October 2015 of being approximately $90,000 a year.
47The parties acquired Property A in October 2012. The respondent is the sole registered proprietor and the property is security for borrowings from Westpac.
48One of the unresolved issues between the parties, and arising directly from the respondent’s failure to comply with earlier orders or provide documents in accordance with his obligations of disclosure, relates to transactions undertaken by the respondent shortly after separation where between 11 and 23 June 2015 he made drawings against the home loan of $25,000 and made subsequent transfers to a National Australia Bank account operated by him. The applicant asserted that the respondent had only addressed the issue of the withdrawals in his first, and only, affidavit, but rejected the respondent’s proposition that the money had been withdrawn to pay an outstanding debt and highlighted that no disclosure had been provided in support of his claims.
49The respondent’s answer to the absence of the production of any documents was that he “was not asked”, albeit in the context of valuation evidence.
50Further, the respondent claimed that he was unaware of the details of the consent orders made in October 2015 or his disclosure obligations, despite being represented at the time, as I have observed, by an experienced family law practitioner who, according to the respondent, “didn’t tell me”. I do not accept the claims made by the respondent in this regard as meritorious.
51Each of the parties have accumulated superannuation through their employment.
52The applicant has been solely responsible for the parties’ children since separation and continues to do so. As seen, the children do not spend time with the respondent.
The approach to be adopted
53The High Court of Australia in Stanford v Stanford (2012) 247 CLR 108 determined that prior to the Court making any determination as to the substance of the application before it, as a first step, a determination must be made that it is just and equitable for the Court to make any order at all varying the parties existing interests.
54That determination requires an identification of the property held by the parties and their respective interests therein.
55The property presently held by the parties is, in my finding, as follows:
·Property A – $400,000;
·current balances on loans secured against Property A with Westpac:
o$282,124.97;
o$62,070.11; and
o$2,074.83;
·total liabilities secured against the former matrimonial home (rounded) – $346,270; and
·equity in the former matrimonial home – $53,730.
56The applicant has accumulated some savings with Westpac in the sum of $14,000. She otherwise estimates the following values for property held by her:
·car – $5,500;
·household contents – $1,000;
·superannuation entitlements – $25,142;
·balance of National Australia Bank account – $60; and
·liability – HECS debt – $14,099.
57The respondent’s separate assets comprise:
·savings National Australia Bank – $966;
·motor vehicle – E$2,000; and
·superannuation entitlements – $69,642.63.
58The total pool of assets available for distribution is thus:
| Applicant's property | ||
| Assets | Applicant's value | Respondent's value |
| Car | $5,500 | $5,500 |
| Household contents | $1,000 | $20,000 |
| Westpac bank account | $14,000 | $14,000 |
| Balance of National Australia Bank account | $60 | $60 |
| Jewellery | $0 | $20,000 |
| Subtotal | $20,560 | $59,560 |
| Liabilities | ||
| HECS debt liability | -$14,099 | -$14,099 |
| Subtotal | -$14,099 | -$14,099 |
| Applicant property total | $6,461 | $45,461 |
| Respondent's property | ||
| Assets | ||
| [Property A] | $400,000 | $400,000 |
| Car | $2,000 | $2,000 |
| National Australia Bank account | $966 | $966 |
| Subtotal | $402,966 | $402,966 |
| Liabilities | -$346,269.91 | -$346,269.91 |
| Subtotal | -$346,269.91 | -$346,269.91 |
| Respondent property total | $56,696 | $56,696 |
| Total property | $63,157 | $102,157 |
| Superannuation entitlements | ||
| Applicant's superannuation | $25,142 | $25,142 |
| Respondent's superannuation | $69,642.63 | $69,642.63 |
| Subtotal | $94,785 | $94,785 |
| Total property and superannuation | $157,942 | $196,942 |
59The items where there is no valuation evidence or where there is disagreement relate to the claims made by the respondent that the applicant has jewellery which he says is worth $20,000 and household contents which he says are worth $20,000 (as highlighted in the table above).
60There is no evidence before me that establishes the figures advanced by the respondent, notwithstanding the opportunities that have been available to him since the commencement of the proceedings to seek valuation evidence, as was available with respect to Property A.
61Having regard to the relatively modest circumstances overall of the parties, I consider the applicant’s suggested value to be the more commercially realistic and the obligation was upon the respondent to establish the higher asserted value.
62Similarly, the applicant had made claims that the respondent may still retain property overseas. There is nothing before me that would support such a finding and it appeared that the claim may be speculative and somewhat uncertain at best.
63I find the known pool to be as set out in the Applicant’s column in the table as prescribed above.
64I note the applicant’s agreement to return to the respondent the balance of his clothing and some personal effects upon him nominating an address at which they can be delivered without breaching the current violence restraining order that is in force.
65Since the parties’ separation the applicant has met the mortgage payments, notwithstanding the respondent’s complaint that she has not met them in full and in this regard he suggests that Westpac is agitating to foreclose, although again he did not provide any documents in support of that assertion.
66As seen, the primary asset of the parties is Property A which is registered in the sole name of the respondent. Any presumptions that existed during the relationship as to the use and benefit of that property have fallen away and as observed by the High Court that of itself may render the making of an order for property settlement just and equitable. Further, as I have noted, the applicant has continued to financially support the property and meet the obligation to the financier and to the extent that she has been able otherwise met the obligations contingent upon ownership.
67I am satisfied that it is just and equitable for the Court to make an order.
68Having defined the assets and the current interests of the parties and determined that it is just and equitable to make an order, the Court must have regard to the matters prescribed in s 79(4) of the Family Law Act 1975 (Cth) (“the Act”) in determining whether any, and if so what, variation should be made to the parties’ existing property interests.
69Section 79(4) of the Act prescribes as follows:
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)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.
70Contribution, as referred to in s 79(4), is a very broadly based concept and includes both financial and non-financial, direct and indirect contribution and those made by a party or on behalf of a party, and contribution made to the welfare of the family including contribution as a parent and homemaker.
71The respective contributions are not ranked and neither is presumed nor mandated to have a greater weight than the other.
Assessment of contribution
72Each of the parties was educated to a tertiary level overseas before migrating to Australia. The applicant claimed to have supported the respondent for two years overseas when he was unable to obtain employment.
73Following their immigration the respondent undertook further study and the applicant was employed as a [waitress] whilst the respondent studied full-time and undertook casual employment at a [shopping centre] during university holidays.
74After obtaining his qualification in about March 2006 the respondent secured casual employment.
75The applicant was also employed on a part-time basis as an assistant for a company and thereafter was [employed] full-time at [Business A] until taking maternity leave, during which she undertook further studies.
76The applicant returned to employment as a waitress in 2013 and thereafter commenced working part-time [in administrative services] until February 2016 when she accepted a redundancy from her then employer. In July 2016 she obtained casual employment at Business B which has led to the permanent position she now holds.
77The respondent’s employment following his qualification was casual or part-time until about 2008. Thereafter he obtained full-time employment in a private [engineering] practice for about 12 months. There was a period of unemployment that followed before he obtained casual work and undertook further study, as seen, to become a certified engineer.
78The respondent was employed full-time from 2010 until about the time of the parties’ separation.
79It is not disputed that the respondent is presently unemployed and in receipt of a disability benefit.
80The applicant, generously in my view, suggests that there should be a finding of equality of contribution to the point of separation with each of the parties clearly supporting the other during their further study and in their respective roles in employment and as parent and home maker. Although there is limited evidence before me about the latter, clearly the relationship appeared to be mutually supportive.
81I note, however, that in her trial affidavit the applicant asserted that “our contributions to the assets accumulated over the course of our marriage were equal. However, since I am unaware of the full extent of the asset pool and the full amount of the funds the [respondent] has sent overseas, I say it is likely that I made a greater contribution to the known asset pool” and further that “I have made greater contributions overall, particularly given the contributions since separation”.
82I refer to my earlier discussions in these reasons regarding the lack of evidence in relation to funds withdrawn by the respondent and any property he may hold overseas.
83Subsequent to the parties’ separation the applicant has assumed the burden of meeting the responsibility for the mortgage repayments as prescribed in the minute of consent orders. She and the children have had the benefit of the use of Property A.
84The applicant has continued in employment and has been solely responsible for the roles of parent and home maker in the home comprising the applicant and the parties’ children.
85Overall, I am satisfied that the applicant’s contribution outweighs that of the respondent taking into account the responsibilities that she has accepted, albeit with the benefit of the use of the property, that a percentage based finding of contribution approaching 55 per cent/45 per cent in favour of the applicant is appropriate given that she has solely preserved the principal asset of the relationship (notwithstanding the benefit of the use of the property) whilst accepting full responsibility for parenting and home making roles with respect to the children.
Section 75(2) factors
86Having determined a contribution based outcome I must now consider any of the relevant factors prescribed under s 75(2) as to whether any of those are applicable such as to warrant a variation to the contribution based outcome so as to reflect a just and equitable outcome as between the parties.
87There are numerous factors prescribed in s 75(2) to which the Court can have regard and I set them out below, however, it is to be remembered that not all of those matters will be relevant to each case.
88Section 75(2) provides as follows:
(2)The matters to be so taken into account 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; and
(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.
89The applicant is 39 years of age and is in good health. Subject to her obligations in terms of caring for the parties’ children there is no limitation to her earning capacity.
90The respondent is also 39 years of age. He is presently accepted as being on a disability benefit.
91The respondent tendered a bundle of medical reports which confirmed that he suffers from a medical condition. In a report dated 26 February 2015, [Dr R], a consultant [specialist], described the respondent’s condition.
92In a further report dated 13 May 2015, Dr R commented that the respondent’s condition “is a slowly progressive, [medical] condition, without any effective treatment available. I would expect the [medical condition] to gradually worsen over two to three decades”. It is not expected that the respondent will live past 60 to 70 years of age.
93Unfortunately the respondent did not provide any current reports regarding his health, despite indicating that he saw a general practitioner regularly. At trial the respondent appeared to have limited mobility and required a walking stick, he was unable to stand for long periods of time and when asked to provide the Court with a list of assets, requested my staff assist him as he was unable to produce legible handwriting. These observations certainly fit with the respondent’s prognosis and even suggest that his condition may have deteriorated, but are simply that, mere observations. I am unable to make any findings regarding the extent of the respondent’s condition and any associated financial expenses now or in the future.
94A report [by] [Dr L], consultant at [Hospital A], dated 16 September 2015 was included in the bundle of medical reports. Dr L noted that the applicant exhibited “symptoms suggestive of anxiety and depression” and further that:
We have been in regular phone contact with him because at one stage, he had voiced suicidal ideation. As a result of that, my team had contacted [a mental health service team] to become involved in his care. Since that time, he has been seen by the Psychiatry Team at [Hospital A] as well as a private psychiatrist.
…
At this stage, I do not feel that the [medical condition] has any affect on his cognition and judgment.
95In her trial affidavit the applicant supports that the respondent has had some psychological issues in the past. She deposed:
87.To the best of my knowledge, [Mr Gunti] was diagnosed after separation in about September 2015 by a locum consultant psychiatrist at the “[Hospital B]” with an “adjustment disorder”. I say that [Mr Gunti’s] mental state in relation to issues involving me and children has been seriously compromised and that [Mr Gunti] is unstable.
96It is probable that the respondent has some psychological history, despite this, the respondent failed to provide any supporting psychiatric or psychological reports or hospital inpatient documents that would support his claim.
97There is nothing in the medical reports that suggests that the respondent presently suffers from any mental illness or provides a measure of any lack of cognitive dysfunction, however, the reports are for the most part two years out of date. Whilst the respondent claimed to have cognitive restrictions in terms of the preparation of documents, as observed, this was not consistent with his presentation from the bar table. The applicant has acknowledged the respondent’s condition, but believes the respondent’s medical condition, as at separation, did not significantly affect his income and that the respondent is not currently exercising his earning ability, however, she also acknowledged that the respondent’s health was “difficult to assess”.
98Dr R’s earlier report confirmed that at that time the respondent’s “Cognition is intact as he functions at a high level and is responsible for finances for his company”. In another report dated 28 October 2015, [Dr K], the respondent’s general practitioner, opined that “Probable future lack of cognitive impairment is good if he wishes to continue with his [engineering] work”. Again, there is no evidence available to assist the Court in determining the respondent’s current earning capacity.
99I accept, however, that the respondent is presently in receipt of a disability benefit and that his medical condition is undoubtedly a permanent limitation to his capacity for employment.
100The applicant, as I have observed, is solely responsible for the care of the children. She receives the minimum prescribed payment of child support, which, in fairness, the respondent accepted did not come near to meeting to the children’s needs.
101The applicant is likely to continue to be dependent upon social security benefits and part-time employment, will remain the primary provider for the parties’ children and any financial support from the respondent is likely to be very limited.
102Each of the parties has superannuation entitlements as I have identified in the schedule of assets and liabilities above. There was no evidence before me as to whether the respondent has made any attempts to access his superannuation or part thereof given his disability, which was rather incongruous given his somewhat emotional claims as to his state of impecuniosity.
103
As to any other fact or circumstance that may be relevant to a consideration of the factors prescribed in s 75(2), I have regard to the respondent’s failure to comply with prior orders that would have provided the applicant with information to which she was entitled. Further, his absence of disclosure in the face of claims of specific transactions undertaken by him together with his failure to provide any evidence that may have enabled the Court to reach a definitive conclusion in circumstances where the asset pool for distribution between the parties is limited, and where there are open issues as to the respondent’s treatment of available resources immediately
post-separation.
104These are factors that weigh in favour of the applicant in my finding, although offset, at least in part, by the respondent’s likely limitations to his earning capacity and consequential ability to adequately provide for his own support.
Conclusion
105The applicant has sought orders that would have her retain Property A. Taking into account the equity in the home and her separate property this would settle upon her property to the value of $85,333, inclusive of her superannuation.
106The respondent would be left with property to a value of $72,609, also including his superannuation entitlements. Expressed as percentages, the applicant would receive 54 per cent and the respondent 46 per cent.
107Having regard to my findings on contribution and as to the factors prescribed under s 75(2), I am satisfied that to order as sought by the applicant is a just and equitable outcome.
108I propose therefore to make orders as to the transfer of Property A to the applicant on the basis that she assumes responsibility for and discharges the mortgage presently secured over the property in favour of Westpac and releases the respondent from any obligation thereunder. She will also have to bear responsibility for any current unpaid outgoings on the property, albeit that there is some uncertainty as to the extent of the same, however, such uncertainty has been contemplated by her proposed minute.
109I propose to make orders that the Registrar execute the relevant transfers and discharge authorities as given the existence of the violence restraining orders and the attitude of the respondent as demonstrated before me, I consider it highly unlikely that he will comply with the execution of documents. Further, there is a degree of urgency in light of the claims made by the respondent that Westpac is contemplating legal proceedings arising from the shortfall on the mortgage payments.
110I do not, however, propose to order a transfer of the internet access as sought by the applicant, but if the relevant telephone number is that used by the applicant in the home, then it is appropriate that the same be transferred to her as clearly the respondent will not have had use of the number post-separation. The applicant can, however, negotiate her own terms as to internet access with the relevant telephone connection.
111Otherwise each of the parties is to retain their separate property, superannuation entitlements and bank accounts.
112The orders with injunction restraining the respondent from increasing the amounts due under the secured loans to Westpac will remain in full force and effect until such time as the liability is discharged.
113As seen, the applicant has agreed to return the balance of the respondent’s clothing and some chattels and I propose to order as she proposed.
114I therefore propose to order as follows:
1Upon being requested to do so by the Applicant, the Respondent do execute a transfer of land in registerable form in favour of the Applicant of all that his right, title, estate and interest in [Property A].
2Pursuant to section 106A of the Family Law Act 1975
(Cth),
the Principal Registrar or a Registrar of the Family Court of Western Australia at Perth is hereby appointed to execute thetransfer of land and all deeds and documents in the name of the Respondent as may be required to give effect to the transfer of the said property.
3Pending the transfer in paragraph 1 herein, the Applicant shall have the right to solely use and occupy the said property to the exclusion of the Respondent, provided however that she shall meet all outgoings arising or accruing with respect to the said property, including but without limiting the generality thereof shire and water rates and utilities, together with any payments falling due pursuant to the:
(a)Rocket Repay Home Loan [XXXXX XXXXX XX];
(b)Rocket Repay Home Loan [XXXXX XXXXX XX]; and
(c)Westpac Choice [XXXXX XXXXX XX];
secured by way of mortgage in favour of Westpac Banking Corporation.
4Contemporaneously with the registration of the transfer ordered in paragraph 1 herein, the Applicant shall secure the discharge of the mortgage in favour of Westpac Banking Corporation and discharge the balance of the debt secured thereby.
5Upon being requested to do so, the Respondent shall transfer to the Applicant the landline telephone service connected to the said property.
6Pending the transfer ordered in paragraph 1 herein, the orders with injunction made on 6 October 2015 remain in full force and effect.
7Within 28 days, the Applicant make available for collection by the Respondent, or through his nominated agent, the balance of his clothing and personal effects at a nominated address.
8Save as provided for herein, the parties shall otherwise retain their separate property free of claim by the other, including but without limiting the generality thereof the motor vehicles in their
respective possession, the separate bank accounts and superannuation entitlements.
9The proceedings otherwise be and are hereby dismissed.
I certify that the preceding [114] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable CourtAssociate
18 October 2017
0
2
0