Hadfield & Walberts & Anor
[2019] FCCA 3635
•19 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HADFIELD & WALBERTS & ANOR | [2019] FCCA 3635 |
| Catchwords: FAMILY LAW – Application for de-facto property settlement – dispute about duration of de-facto relationship – substantially greater contribution by de-facto husband – division of non-superannuation assets 90/10 in favour of the de-facto husband. |
| Legislation: Family Law Act 1975 (Cth), ss.4AA, 90SM |
| Cases cited: Dahl & Hamblin [2011] FamCAFC 202 |
| Applicant: | MS HADFIELD |
| First Respondent: | MR WALBERTS |
| Second Respondent: | MS WALBERTS |
| File Number: | DGC 24 of 2019 |
| Judgment of: | Judge Burchardt |
| Hearing dates: | 13 & 14 November 2019 |
| Date of Last Submission: | 14 November 2019 |
| Delivered at: | Dandenong |
| Delivered on: | 19 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Wilson |
| Solicitors for the Applicant: | Phaedonos Law |
| Counsel for the Respondents: | Mr Thexton |
| Solicitors for the Respondents: | Thexton Lawyers |
ORDERS
The Respondent pay the Applicant $150,480 within 60 days.
In default of compliance, the Applicant have liberty to apply.
IT IS NOTED that publication of this judgment under the pseudonym Hadfield & Walberts & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 24 of 2019
| MS HADFIELD |
Applicant
And
| MR WALBERTS |
First Respondent
| MS WALBERTS |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is a property dispute arising out of an alleged de facto relationship. Parenting issues were live until the day of trial when the applicant effectively abandoned the parenting component of her case. So far as property is concerned, she says she was in a de facto relationship with the respondent from … 2011 until final separation in December 2017. She remained living in the former alleged de facto home until February 2018 and asserts that she was still intimate with the respondent until she finally moved out. She seeks an adjustment of the parties' property 60/40 in her favour.
The respondent says that he did not cohabit with the applicant from 2011 onwards but admits that she moved in with him in … 2015. He says the relationship was over by October 2017. He seeks that the application be dismissed in its entirety.
For the reasons that follow, I think that the parties were in a de facto relationship for a longer period of time than the respondent asserts and
a shorter period of time than the applicant asserts. I think that the relationship was, on any view of the matter, a short one and the respondent made the overwhelming contribution to the ultimate financial outcome for the parties. I am going to be ordering that there be a division 90 per cent in favour of the respondent and 10 per cent to the wife.
The Applicable Test
The jurisdiction of this court to make orders in de facto cases was comprehensively dealt with in the Full Court decision of Fenton & Marvel [2013] FamCAFC 132. That was a case predominantly concerned with whether the de facto relationship finished before 1 March 2009 when jurisdiction accrued. At [53]-[54], Murphy J relevantly said:
53. Taken together, the provisions of the Amendment Act and the Act specify that a court is required to find that a relationship did not break down before 1 March 2009; that the relationship which broke down after commencement was a “de facto relationship”; and, that the period, or total of the periods, of the de facto relationship is “at least 2 years”. Because s 86 refers to a “de facto relationship that broke down before commencement”, the first and second of the relevant findings are intertwined.
54. The requirement for the de facto relationship to have subsisted for at least 2 years can be met by aggregating periods of the de facto relationship (see, Dahl & Hamblin [2011] FamCAFC 202; (2011) FLC 93-480) (“Dahl & Hamblin”).
Relevantly, May J agreed with Murphy J. It should also be noticed that Dahl & Hamblin was a unanimous Full Court judgment, and Murphy J accurately recorded the substance of that judgment (see Dahl & Hamblin at [48]). Accordingly, in determining the length of the de facto relationship in this case, it is appropriate, should the facts support such a conclusion, to aggregate the various periods of time the parties were in a de facto relationship.
De facto relationships are defined by section 4AA of the Family Law Act. It is appropriate to set out section 4AA(1) - (4):
4AA(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple:
4AA(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of the children;
(i) the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
A brief overview of the relationship
The applicant was born on … 1985. She is of British origin, and was working relevantly for Employer A at the time she met the respondent. The respondent was born on … 1973. According to the applicant he was born in what was then called Country C and lived in Country B until he was 14. He has since then essentially been a citizen of and lived in New Zealand, and he is a health care worker.
The parties met in … 2011 when the respondent was working in the United Kingdom. They met in … 2011, and by … 2011 they were undertaking a holiday to Country T, Country U and Country B together. The applicant says she moved in with the respondent in … 2011, but he denies this and says that she was just his girlfriend at the time.
Further holidays followed in … 2012 (Australia) and … 2012 (Country T). In … 2012 the respondent's visa expired and, together with his son S, further travel took place, although there is dispute as to how much of it the mother was involved in.
In mid-2012, the respondent returned to Australia and worked in Town V and Town W, Western Australia for some 12 months doing health care work before moving to Melbourne in … 2013. There is a dispute as to the extent of time the applicant spent in Australia, but, on any view of the matter, she did come from time to time, and it is also clear that from time to time she has travelled as the travelling parent with S from the United Kingdom to Australia.
In July 2015, the applicant moved into the alleged matrimonial home at, Street D, Suburb E, although there is a dispute as to the extent to which she shared a bedroom with the respondent. As I have already indicated, it appears to be accepted that the applicant and the respondent were in a de facto relationship from 2015 to November 2017.
The respondent bought a Motor Vehicle F in … 2015 which was used by the applicant, who was engaged as a full-time secretary/office manager for the respondent's business in … 2015.
The applicant, as indicated, stayed in the former home until February 2018.
S came to live in Australia with his father in early 2017, and his mother also resided in Australia for some six months before returning to United Kingdom.
Following the applicant moving out of the home, the respondent paid her money in various tranches amounting to some $133,000.
This brief narrative does not include all the parties' holidays (they lived extremely well as the respondent was making very substantial amounts of money), nor does it traverse each and every issue the parties have raised. Those matters will be addressed when I deal with the evidence given at court.
It should be noted that both of these parties re-partnered relatively quickly after their final separation and both have had children by other partners since. The applicant is now married to Mr G, and the respondent has a child by his subsequent partner.
The parties’ affidavits
The parties have filed copious affidavit material. Much of it is understandably self-serving. Each side has sought to emphasise past exchanges that might support the existence or non-existence of the relationship as the case may be. In annexure “W-4 to the respondent's affidavit, affirmed 16 March 2019, the applicant sets out a lengthy screed of her view of her then circumstances. From this email it is apparent that the applicant was performing at least some work for the respondent's business:
I enjoy doing things for your business (yes, I enjoy it!) and I LOVE the idea of settling down with you. In one place. With a plan for the future.
On the same page she relevantly said:
I also like the idea of having S there full time (hopefully!) and being able to enjoy normal life. You don't seem keen on me doing this. Maybe if you really wanted this to work, you would suggest something that would facilitate that happening. I know our options are limited. Walberts, as you can probably tell, I want this to work. I’ve probably spent too much time looking into possibilities but that only (hopefully) shows my determination to make it work. I don't always know if you feel the same way though. Sometimes I think you do, ad sometimes I'm not sure. And that makes me worry! Do we have the same long term goals? Maybe you can let me know what your thoughts are? Do you think you could see us getting married and having children in the future or are you still unsure? If no to one or both, then do you still want me to come over there full time at some point in the future?
A further text message sent on 17 December 2014 discussing a proposed visit on the applicant's part is likewise couched in terms that suggests the question of the ongoing nature of the relationship was very much in issue. Relevantly, having asked whether the respondent would wish to have children with her, the applicant said:
If we decide we have a future, and the plan is to stay together, then my preference would be to start having children soon, like in the next year.
Annexure “W-6” to the same affidavit is correspondence from Ms H, registered migration agent, who informs the applicant that, based on what she had submitted to her, the applicant would be refused a partner visa. Relevantly, the correspondence asserted:
The government will see that you have been living separately & apart for the past year & that alone will warrant a parter (sic) visa refusal. That's not taking into account other areas that would contribute to a refusal such as having a current job in the UK (that is effectively confirmation you are living there & not Australia).
Annexure “W-7” is correspondence relating to and including a statement dated 5 March 2018 designed to facilitate a visa application on behalf of the applicant. Relevantly, this states:
In … 2012, we begun a 12 month journey around Western Australia for Mr Walberts’ work. We would stay in employer accomodation and Ms Hadfield would fly back to the UK after her temporary visa ran out and return as soon as she was able. Then in … 2013, we moved into our current address in Street D, Suburb E. At this point Ms Hadfield was still having to make regular trips back to the UK but in … 2015, Ms Hadfield's 5 year visa was granted.
There are, however, a number of other documents which tell something of a different emphasis. Exhibit “H-15” to the applicant's affidavit sworn 13 October 2019 shows an invitation to Mr Walberts and Ms Hadfield to the Sports Event from the chief executive officer for the Employer J. They were plainly contemplated as a couple.
Exhibit “H-16” is partly constituted by an email dated 30 March 2014 from the respondent to the applicant. Relevantly, it says:
Pretty complicated! I certainly don't have all the answers, but the key is not to rush into any hasty decisions or feel like u r under pressure to make any. At the end of the day, u have at least a 60 year innings left. It's about the journey, and not the destination.
I reckon we have a future together, it just might be a bit of a bumpy ride getting there …
Exhibit “H-20” to the same affidavit records membership details of Ambulance Victoria. It is a three year family membership in 2016 to 2019, which plainly lists not only the applicant and respondent but S as well.
Exhibit “H-26” relevantly says (and it is asserted to be a message in August 2017 following a brief separation):
Thx for getting back to me. Hey, I thought we were going to talk …U misunderstand my situation, and I wanted a chance to explain … Before you respond … Can I say I love U…And I'm prepared to marry u… And have kids!
As will be apparent, the parties have, as it were, waxed and waned in their views of their inter-relationship over time.
I do not propose to traverse the parties’ affidavits in any further detail because I propose to concentrate on what they actually said at court. Before coming to the evidence, however, it is appropriate to give some brief extracts from the family report prepared by Mr L. It should be noted that the applicant did not include any application for parenting orders in her original application and only did so by an amended application filed later. Mr L’s family report is annexed to his affidavit sworn 9 October 2019. It should be noted that the applicant’s position was that she had a very close bond with S, whom she had sworn in her affidavit must be missing her greatly. In fact, S categorically refused to meet the applicant on the day of the family report interviews.
In paragraph 107, the report relevantly stated:
The initial orders made solely related to financial and property matters. However, Ms Walberts later filed an Amended Application seeking to spend regular time with S as well. Whilst this is her position formally, at interview it was extraordinarily difficult to obtain a clear position from Ms Hadfield as to the future parenting arrangements she sought until more extensive and direct questioning was conducted.
Having noted that the applicant had commenced a new relationship, married and has a child with her new husband, at paragraph 108 the report continued:
It is somewhat odd to fully understand or appreciate why she would genuinely want to have her ex-partner’s son live with her and her new husband and child, particularly in a situation where she understands S opposes even spending time with her. Moreover, the more limited or seemingly fragmented nature of her relationship with S historically raises further question as to her genuine motivation in this matter.
At paragraph 109, Mr L continued:
Considering the aforementioned, this family consultant struggles with Ms Hadfield’s pursuit of ongoing time and a future relationship with S. It is assessed that there is limited information to sufficiently indicate or give weight to a position that Ms Hadfield’s previously maintained a close, highly involved, emotionally strong, nurturing and endearing relationship with S. Upon her separation from Mr Hadfield, which is understood to have occurred in 2017, there is no indication that she actively sought or pursued an ‘ongoing’ relationship with S and most likely, merely continued the same role she had played previously by attending to tasks and helping out Mr Walberts from time to time. This family consultant is of the opinion that if
a pursuit of a relationship and future time with S was genuine and had been at the forefront of her mind, her initiating application would presumably have attended to this issue.
Unsurprisingly, Mr L went on to recommend that S spend no time with the applicant.
I would interpolate and say that I would share Mr L’s reservations about the mother’s motivation in seeking the parenting orders she sought. Although her formal position at trial was that she had only, with difficulty, adjusted her views to accept the family report, either the endeavour to include parenting orders was a cynical endeavour to, in some fashion, obtain a forensic advantage in the proceeding or reflected a very misconceived and distorted view as to what her true relationship with S was.
Submissions made and evidence given at Court
What follows is taken from my notes.
The case commenced with brief oral submissions by the parties on the mother’s parenting application which I determined on an ex tempore basis.
The Opening and Evidence of the Applicant
Counsel noted that it was the applicant’s case that the de facto relationship lasted from December 2011 until December 2017. The parties had not co-habited in one place. The applicant moved in with the respondent at the end of 2011 but his visa ran out and he came back to Australia. The applicant was a customer service officer and spent time with the respondent in Australia. It was a long distance de facto relationship. There was a common residence for a large parts of the time but the respondent said it was only 24 months. In August 2017, after a falling out and reconciliation, the respondent had sent “H-29” in which he expressed a willingness to marry and have children.
The respondent was the greater earner, as a health care worker. The applicant was his office manager. The pool was not the subject of challenge. Net assets were over $3 million. There had been no disclosure by the respondent of his assets in New Zealand. The applicant seeks a 30 per cent distribution. She submitted that the contribution should be assessed at 20/80 and there should be a further adjustment. The respondent earns about a million dollars a year and the applicant much less. She is a mother to a baby child, X.
The applicant was called and confirmed her trial affidavit is true and correct.
In evidence-in-chief, the applicant responded in some detail to the respondent’s trial affidavit. I have noted the matters she detailed. I note that her application for a visa in 2015 was paid for by the respondent and, while it was an electronic signature, the applicant said they had discussed it.
When the parties were cohabiting in Melbourne, the respondent’s parents would come over and the respondent did not wish them to see her in the main bedroom. She sometimes slept in the spare room when his parents came to stay and sometimes when S came over. When S came to live with them that changed. She had also slept in the spare room on occasion following disagreements.
I note further that the applicant said it was the respondent who suggested they separate and then asked her to backdate her hours for her wages claim. She had done this. That was what the $15,000 was for. She did not move out, in any meaningful way, prior to final separation.
The parties had a break-up in 2017 during which she went back to the United Kingdom. She had not had more than a handful of dates with Mr M.
I have noted the further answers in chief but it is not necessary to detail them further.
Under cross-examination by counsel for the respondent, the applicant readily admitted that her Town Y property is in her husband’s sole name. She has a share in that property. She had contributed about $130,000. The property was not owned by her husband before the relationship but was bought after. Her husband had put in $500,000.
When it was put to her that she had relocated to live in Australia in … 2017, the applicant said she moved into Street D, Suburb E in 2013. She was living there and had a visa. She went back to the United Kingdom twice that year. She was working for Employer A remotely. It is not possible to get the details because there are over 15,000 employees. She checked her passport but they do not stamp it every time.
The applicant said she had a 12 month working visa from about … 2013 to 2014, during which she stayed in Australia. She was in England when she sent the annexure “H-15” on 15 November 2013. She went back for short periods. She flew back to the United Kingdom to pick up S for a holiday. She was allowed to visit Australia for periods of up to three months after her working visa expired. She had enrolled, in January 2014, in University in the UK. This was a long distance degree and she only had to be back in the United Kingdom for one week to complete it. It was an online course which she did not complete. She never went to the University of United Kingdom. She had only spent one week studying in City Z. Her five year visa was a spousal temporary de facto relationships visa.
The respondent’s divorce was delayed till well after they were together. In early 2015, they obtained a joint bank account.
Counsel put it to the applicant that she was living in the UK in City AA with her brothers. The applicant said she was taken off the property. It had three bedrooms. She had stayed with her parents when she was in the United Kingdom. She thought the property was sold for about £200,000 and did not know what the mortgage was. Her share was £18,000. Her parents paid the mortgage from 2011 onwards as she was not living there. She received her £18,000 in January 2018. This was after her separation from the respondent.
She and the respondent stayed in employer accommodation in Western Australia. In between work, the respondent went to his sister in Melbourne and she went back to the United Kingdom. Ms N was some sort of relation. They had spent two nights with her in Perth. This was for work. They had offered for Ms N to stay with them in March 2016.
The seven week big adventure was in the United States. She had not gone to New Zealand. Then they went to the Region O and then to Town V, WA. All the respondent’s bank accounts went to her parents in the United Kingdom.
The applicant said she was in Hospital K after her pregnancy in … 2015. It was the same night as the Christmas party at the employer, which the respondent left early to come and visit her.
The applicant confirmed that she had a work visa in 2013 to 2014 but had tourist visas from … 2014 to 2015. She tendered as exhibit A1 a visa grant notice which applied from … 2015 to … 2020, being a New Zealand Citizen (Family and Relationship) (Class UP) New Zealand Citizen Family Relationship Subclass 461 Visa.
When it was put to her that she had made no contribution financially, the applicant said that she bought flights until 2016 and he reimbursed. In July 2017, he asked to separate. From July 2017 onwards she was paid a good wage. She got annual leave when she left back to 2013 but not superannuation. She backdated the hours she knew she had worked. From July 2017, she was paid $100,000 per annum. She contributed $1,000 per fortnight on groceries and other household expenses but did not pay the mortgage.
She had found out the respondent had a relationship with Ms P after he left her. She was not aware of such a relationship in 2016 or 2017. She only found out after he left her. The relationship continued for four months after the separation in July 2017, not four days as the respondent asserted. He asked her to marry him in … 2017. She went back to the UK for one day in …. She had a few dates with Mr M in July or August. She was still intimate with the respondent after separation but this was not frequent. She was given $5,000 in … 2017 but did not use it to go to the United Kingdom. She was looking at purchasing Street Q, Suburb R at the time. She got $18,000 from her parents. The respondent gave her $33,000 in March 2018 but she did not pay it back. She sold Street Q, Suburb R and put the money into the property at Town Y. The mortgage was $305,000 and the value of the property was $800,000. Town Y was bought in … 2018 for $840,000. She put in $130,000 and her husband put in $500,000.
When cross-examined about jewellery, the applicant said she had received some from her mother when she was 18 and she had a pair of earrings bought for $3,000.
The applicant was cross-examined about her belongings being shifted to Australia. There were boxes stored at her mother’s house and her property was brought out bit by bit.
When it was put to her that S had told the family report writer, Mr L, that she and the respondent were in separate bedrooms and that the respondent also said this, the applicant said that when S came to visit she did stay in the spare room.
The applicant conceded that a cleaner came once a fortnight for a period of three months. There was a gardener who cut the grass. She was aware of the injury to the respondent’s hand and also of his heart condition.
In re-examination, the applicant confirmed that she was paid about $28,000 in accrued annual leave. She also clarified the extent of the separation in 2017.
The Opening and Evidence of the Respondent
Counsel indicated that he relied on the case outline filed on 12 November 2019. It was the respondent’s position that there was no de facto relationship. In the alternative, if the relationship was more than two years, there should be no further adjustment because of the payments already made. The applicant has subsequently married and had a child and the respondent has had a child with a subsequent partner. The applicant was wholly unsuccessful in the parenting aspects of the case. A lot of the relationship between the applicant and the respondent was transactional. The applicant was paid by the respondent. The applicant conceded she made very little financial contributions and her salary was not contributed to any of the purchases of the properties. There had been no intermingling of finances.
The respondent was called and affirmed his affidavits and Financial Statement.
The respondent was cross-examined about his text messages in August 2017 in which he offered to marry the applicant and have children. He conceded he had sent these. There was a falling out in June or late May 2017 and the relationship was well over by then “if you consider it one”. He stated they had been separated from the beginning of June till August 2017 and the applicant had spent time with a friend Ms BB and found Mr M on the internet. His text was not a marriage request. It followed a break up with Ms P. The applicant said she would think about it and went to the United Kingdom. She came back and split up with Mr M. She had had a holiday. He then went back to Ms P. He said the same thing to Ms P. They broke up a couple of weeks later.
He became a permanent resident of Australia in … 2018. He was a New Zealand citizen. He was born there. (This sits oddly with the applicant’s assertion as to his early time in Country B and the marked Country B accent that he still has).
Counsel cross-examined about the respondent’s interests in New Zealand. It was asserted that he had not provided documentation but the respondent denied this. He said he had invested $237,000 in the husband of his cousin. He will be repaid with interest. The investor is now investing in a long-term project but he will be repaid when the properties are sold. He has declared the profits in his tax returns. He had initially invested $100,000 in 2015 but had been paid back a year later.
When cross-examined about his lack of work in the first five months of this year, the respondent did not reply in a direct way. He asserted that the applicant was confused. He asserted that there had been sabotage by the applicant in respect of his secretaries. He had told his lawyer about these matters but they had not been canvassed in cross-examination. He denied that the applicant had taken S to the United Kingdom and said that he had done the majority of travel. He disagreed that when S was living with him from the start of 2017 the applicant had taken him to school. His wife had been in Australia between March and December 2017 and they had fifty-fifty custody. He conceded that this had not been put in cross-examination.
The respondent said they travelled a lot in the early stages but not necessarily with S. The applicant’s version was inadequate. He had not responded to the applicant’s affidavit because it was inaccurate. He remembered a trip to Country CC for two weeks where the applicant joined for the last three days. It was the same in the holiday in Country CC. The applicant had exaggerated. The relationship was casual, at best. It was transactional at best and occasionally sexual. She would do things for him, such as taking S to a GP. This was during her paid time at work. She had taken S to a psychologist where she had a motive. She would bring S to Australia and stay for a while. The applicant was determined to leave the United Kingdom and come to Australia. She could not obtain a skilled migrant visa. Since her attempts to destroy his business, his opinion of the applicant had deteriorated. The applicant had significantly caused deterioration of his relationship with his ex-wife. She had provided false documents and, as a result, his opinion of her had deteriorated.
When cross-examined about the pool, the respondent confirmed Street D, Suburb E is valued at $1,575,000. Property DD is valued at $970,000. Property EE is valued at $870,000. It is owned by a trust of which he and his son are beneficiaries.
The Motor Vehicle FF is valued at $18,000. The Motor Vehicle F is no longer his. The applicant has it. His boat is worth $6,800.
When it was put to him that he had paid the wife $133,000, the respondent said it was more than that. He had left out the $15,000 he had paid in July 2017 to have the applicant move out of his house. Surprisingly, he said he did not recall increasing the applicant’s salary to $100,000 from July 2017. He could not recall what she was paid before that. She was employed on … 2015 and paid a salary for that time. This was sufficient for her, given her level of training. She was a questionable secretary at best.
The respondent said he was not aware of the two joint statements submitted to Australian migration authorities. He had not seen either one.
He was then cross-examined about a letter sent to his former solicitors dated 12 January 2019 (exhibit A3). The respondent said he changed law firms and had not seen this document. He did not recall the annexures in the wife’s affidavit constituting the migration statements. It was put to the respondent that he authorised the applicant to put his electronic signature on the first application and his stamp on the second application. The respondent denied this. He conceded that the second applicant was for a permanent resident visa, which he had started in early 2017. It was done primarily for him and S and she tagged along. After the breakup of the relationship, she had insisted he help and he did this out of sympathy. It was a fraudulent application.
Exhibit A4 was put to him which shows, in my view, conclusively that the respondent was well aware of the proposed application. Exhibits A5 and A6, in my view, only add to the force of this conclusion. I would interpolate and say that the respondent’s answers, when taxed with these exhibits, had all the appearance of being made up on the run.
The respondent said that the applicant was living with her boyfriend when these documents were created. He fraudulently agreed with her application. He authorised the use of his stamped signature. This was 15 months after the breakup.
When it was put to him that the applicant travelled with S on flights, the respondent was dismissive. He denied and said these were transactional anyway.
The respondent said the applicant had not made his business successful. She left a mess which his new secretary thought was sabotage but he ultimately decided was incompetence. In hindsight, he should not have given the applicant the reference that he did.
The respondent was cross-examined about his debts. His answers were not easy to follow. Amongst other things, he asserted that his indebtedness was now in a total of approximately $1.7 million when it was $1.2 million at the time his Financial Statement was sworn. This apparently was, according to him, because of a recent taxation impost. This evidence was given in a completely unconvincing way.
Re-examination did not add anything of any moment.
I do not propose to traverse the closing submissions in any detail. They understandably laid emphasis on various aspects of the evidence favourable to their clients. I note the submission from counsel for the applicant that the husband’s income had dropped from $1.033 million in 2018 to $750,000. On any view, he would be a substantially greater earner than the applicant.
Findings about the Witnesses and the Facts
The applicant was, in the main, a composed and generally straightforward witness. While I do not accept all aspects of her evidence, which I think has been marked by an overly rosy appreciation of her interaction with the respondent, something emphasised by her misunderstanding of her relationship with S, particularly from S’s point of view, she was, as I say, generally a good witness.
Unfortunately, and it is always regrettable to have to make findings of this sort, there is no avoiding a more negative assessment of the respondent. He did not, on numerous occasions, answer questions put to him directly and was over eager to put the evidence that he felt the court ought to hear. His attitude towards the applicant was one of patronising condescension and a number of his answers were really more in the nature of vents than anything else. When talking, in particular, about her desire to come to Australia, he simply could not say bad enough about the applicant and his refusal to answer questions directly made it almost impossible for counsel to control the course of questioning.
With these remarks in mind, I come to consider what actually happened.
The parties met in 2011 and became intimate very quickly. They started living the high life with holidays overseas almost immediately. There was clearly no intermingling of finances but I accept that the applicant moved in with the respondent in … 2011 and lived with him until they left in 2012. This was a period of cohabitation of some six months.
The commitment to the relationship is evidenced by the fact that the applicant accompanied the respondent, to the extent that her visa permitted her to do so, to Australia in 2012. She lived with him both in Town V and in Town W. She was, of course, intermittently obtaining the benefit of substantial fully subsidised travel from time to time. Holidays seem to have abounded.
What makes me doubt the nature of the relationship during this period are the emails in 2014 in which both parties seem to me to be equivocal as to whether their relationship is going to endure. This, of course, was towards the end, it would seem, of the applicant’s one-year visa. It seems clear enough that she lived with the respondent at the Street D, Suburb E property from its purchase in 2013 until her visa expired in mid-2014.
Disaggregating all this as best one can, and noting that in 2012 to 2013, the applicant was routinely returning to England for periods of time,
I think the parties’ de facto relationship did continue throughout these periods but was marked by periods when they were physically absent, which have not been denoted with any precision whatsoever because the applicant was unable to obtain the relevant records from Employer A or from her passports.
In my opinion, it is clear that the parties were in a de facto relationship from 2015 onwards. The applicant had obtained a five-year visa and was working full-time for the respondent, bearing in mind that it is clear that she started to do work at an earlier point for the respondents’ business, as earlier indicated, and she was living full-time with the respondent. The fact that from time to time she decamped to a spare room for one reason or other makes no difference to this finding. The parties were obviously sexually intimate throughout.
There was a relatively short period of separation in 2017. I am not able to say with precision how long it was, but I accept the applicant’s evidence that it was shorter than the respondent said it was. During this time, it appears that both of the parties may have been unfaithful, sexually, to the other.
Final separation took place in December 2017, notwithstanding some sexual intimacy between the parties thereafter.
The respondent, who was clearly well aware of the applicant’s visa applications, had much to say about their fraudulent nature. It seems to me that his attitude towards the applicant remained equivocal even after final separation. He paid her very substantial amounts of money and was prepared to allow her to forward her visa application, even though he knew, as he would put it, that the facts asserted were not fully accurate. I do not accept this. I think that the applicant’s account, although overegged, was substantially correct and the respondent knew this.
This was, accordingly, an on again, off again relationship that spanned
a total of six years. There was one period of separation in 2017 that both parties agree occurred, although they dispute its length. There were other periods, plainly, when the applicant was overseas and all indicia point
to her not being in a de facto relationship, as her migration agent recorded.
The parties’ attitudes towards one another appear to have varied from time to time as, of course, is normal enough in human experience.
Given all these matters, it is wholly impossible to give an entirely accurate determination of the length of the relationship.
I do not think that the early part of the relationship in 2011 to 2012 can properly be characterised as a de facto relationship. These were not people in a genuine domestic relationship. They are people who just met and embarked upon an enthusiastic affair who were travelling around the world and generally having a good time. The evidence does not satisfy me that matters had moved to that level of genuine domestic commitment that marriage (whether de facto or legal) connotes. The fact that the husband may have had his correspondence addressed to the applicant or her parents and that he stored it with them is not, in my view, in any way decisive.
The applicant and respondent must have been in a de facto relationship for her to have travelled to such relatively remote outposts as Town V and Town W and, in my view, they were in a relationship from around about July 2012 onwards. This is borne out all the more so by the fact that she moved into the property in Street D, Suburb E as soon as it was purchased. The relationship then, despite its equivocation, continued through until 2017. As I find, it was a relationship of some five years, punctuated by separations of an uncertain amount of time such that
is real total is somewhere in the four to five year range.
Having made this finding, I turn to the first step, Stanford v Stanford. The first task for the Court is to ascertain the legal and equitable interests of the parties and determine whether a property division is appropriate. In a case like this, that is perhaps less straightforward than otherwise would be the case. It is the respondent’s position that, even if there was a de facto relationship, the amounts of money he gave to the applicant post-separation together with the brevity of the relationship means that it is not just and equitable that there be a property division at all. The applicant’s position, of course, is to the contrary effect. To put this matter in context, it is appropriate to denote the pool.
The pool consists of the following:
a)Street D, Suburb E, $1,575,000
b)Street GG, Property HH, $970,000
c)Street EE, Suburb JJ, $870,000
d)Motor Vehicle FF, $18,000
e)Motor Vehicle F motor vehicle, $8000
f)Boat, $8500
g)Funds paid to the de facto wife post-separation, $133,000
(In the end I accept the applicant’s explanation about the $15,000).
The liabilities appear to be:
a)Westpac overdraft, $260,000
b)Westpac investment loans, $872,500
c)Macquarie Loan, $13,000
The husband has superannuation in the sum of $116,565, and the applicant has superannuation in the value of $13,843 in Australia and $60,000 in the United Kingdom.
One matter I have not addressed, because the evidence, in my view, is insufficient to make a formal conclusion possible, is the value of the respondent’s property in New Zealand. This was one area of his evidence that was given with conviction and which I accept. All one can say is that he has a long-term investment which is likely to repay him
a six-figure sum at some indeterminate date in the future.
The assessment of the liabilities of the parties is rendered much more difficult by the fact that the respondent, who gave the figures for his mortgages in his Financial Statement, sought at the last moment, and not on affidavit, to significantly expand his potential debt. If I accept his largely unbelievable evidence, the mortgages are of the order of $1.7 million rather than $1 million. It is not possible to come to a conclusion with absolute certainty about this matter. All I can say is that the respondent may have some additional tax to pay but I am quite unable to say how much it may be. Like his asset in New Zealand, it is not capable of precise quantification.
Although it needs to be borne in mind that the exercise envisaged by s.90SM of the Act must address as a preliminary matter the question as to whether an alteration of property interest is just and equitable, in the particular circumstances of this case that can only be dealt with when one looks at the issues of contribution and future need.
Contributions
This was not a relationship of any great length. It was punctuated by significant periods when the applicant and respondent were not actually together. On any view of the matter, the contribution made by the respondent was overwhelmingly greater than that of the applicant. It was from his skill and hard work, particularly in Western Australia, that the home in Street D, Suburb E had evolved. It was bought unencumbered. It is the biggest single asset in the pool.
Nonetheless, the applicant plainly contributed also. The respondent sneeringly sought to dismiss things that the applicant did for him as being merely transactional, but the fact is that on quite a number of occasions the applicant travelled with S from the United Kingdom to Australia and, indeed, undertook other international travel also, which benefited the respondent. These are not minor matters. True it is that the applicant may have received the benefit of returning home to see her family on occasions, but accompanying a young child on a journey from one side of the world to the other is not a minor matter. Furthermore, the applicant worked in the respondent’s business for some two years full-time and clearly contributed before that to some degree.
Although the respondent can now not speak badly enough about the applicant as a worker, the fact is that he upped her pay to $100,000 per annum in mid-2017, at a time when the relationship was under strain. The business has expanded very considerably since its inception. The applicant deserves a measure of credit for this, and I should make it clear that I do not accept at all the various lurid criticisms the respondent advanced of her performance of her role. Little has been said about the domestic offices during the relationship. Consistent with the high earnings that the respondent had throughout, these home duties were undoubtedly alleviated by the cleaner and gardener, but the applicant’s evidence as to her home duties was not the subject of serious challenge. It subsisted for a not trivial amount of time.
Bearing in mind the very considerable financial assistance given by the respondent to the applicant, ($133,000 on her figures and $148,000 on his, the difference does not, in my opinion, matter much), given the respondent’s vastly superior direct financial contributions, I would assess the parties’ contributions as being 90 per cent to the respondent and 10 per cent to the applicant.
Future Needs
The applicant has re-partnered, remarried and has a child. They have a property, apparently only limitedly encumbered by a mortgage. Little was said about the applicant’s husband’s earning capacity, although there was some suggestion it may be presently impaired. The respondent, by way of contrast, is substantially older, although his vastly greater earning capacity means that he will, in all probability, in just several years will earn more than the applicant will earn in the next several decades. He has himself parental responsibilities, although, once again, I have been told very little about his new partner and child. His earning capacity has reduced somewhat, but the evidence does not establish that it will reduce further.
Any adjustment for future needs must however take into account the relative brevity of the relationship and the very substantial amounts paid to the applicant post separation.
Just and equitable
All these matters are relevant, in my view, to the question of whether there ought to be a property adjustment or not. In my opinion, the applicant did very well during the relationship. She got to see a lot of the world in what appears to have been somewhat luxurious circumstances. True it is that she was a customer service officer for Employer A, and thus had access to cheap travel, but there is nothing to suggest that she was able to travel in the style and to the extent that she did with the respondent. To coin an American phrase, she lived high on the hog, as did he. This was not a relationship that produced any children, although, most unfortunately, the applicant did indeed miscarry twice (something clearly not being planned, at least by the respondent). As earlier indicated, the respondent gave the applicant what any normal citizen would regard as a very substantial amount of money post-separation. In all the circumstances, I am persuaded that the applicant just gets across the line. The length of the relationship, her input as a partner and the future needs issue, in my view, make it just and equitable that there be an adjustment of some 12 per cent in the applicant’s favour. I should make it clear that while the applicant’s commitment to the respondent’s business stands to her credit, she was, of course, paid a salary, and a generous one at that, so this does not, perhaps, become a matter that should be accorded inordinate weight.
This has been a very messy judgment to write, as a result of the fluid and unusual factual base from which it springs. I have failed to comment on some aspects of the evidence and materials and have admittedly painted with a relatively broad brush. Any endeavour to traverse each and every matter the parties put would produce a judgment of epic proportions. Given my conclusions, this was, in my view, inappropriate.
I should finally say in passing that the relationship was not one of such length that a superannuation splitting order would be appropriate. No party has drawn my attention in submissions to any such application, in any event. Furthermore, the parties’ superannuation is not wildly disparate, and given the relative youth of the applicant, this militates further against any such adjustment.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 19 December 2019
Schedule
Pool total$3,574,500.00
Liabilities:$1,145,500.00
$2,429,000.00
12%$291,480.00
Less$133,000.00
$8,000.00
$150,480.00
0
2
2