Hobson and Manson

[2017] FCCA 622

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOBSON & MANSON [2017] FCCA 622

Catchwords:
FAMILY LAW – Property – 14 year de facto relationship – small pool.

Legislation:

Family Law Act 1975 (Cth), ss.90SF, 90SM

Police Regulation (Superannuation) Act 1906

Stanford & Stanford (2012) HCA 52

Applicant: MR HOBSON

Respondent:              MS MANSON

File Number: NCC 2650 of 2015

Judgment of: Judge Terry

Hearing dates: 9 & 10 March 2017

Date of Last Submission: 10 March 2017

Delivered at: Newcastle

Delivered on: 21 March 2017

REPRESENTATION

Solicitor Advocate for the Applicant: Mr Byrnes

Solicitors for the Applicant: Byrnes Lawyers

Counsel for the Respondent: Mr Finch

Solicitors for the Respondent: Kim Eccleston Family Law Sole Practitioner

ORDERS

1. Within 60 days of the date hereof the respondent shall:

   (a)pay to the applicant the sum of $54,255.20;

   (b)refinance into her sole name the loan secured by mortgage over the property known as Property O (“the Property O property”).

2. Contemporaneously with the respondent complying with Order (1):

   (a)the applicant shall sign all documents required to discharge the mortgage to (omitted) Bank secured over the Property O property;

   (b)the applicant shall sign all documents and take all necessary steps to cause the Caveat No. (omitted) placed on the title of the Property O property (Certificate Folio Identifier (omitted)) to be removed at his expense;

   (c)the respondent shall indemnify the applicant and keep him indemnified from liability for the said mortgage and for all rates and outgoings owing in respect of the property.

3. Upon the parties complying with Orders (1) and (2) the respondent is declared the owner to the exclusion of the applicant of the (omitted) horses, the tractor, the slasher, the post hole digger and the carryall tractor attachment.

4. If the respondent fails to comply with Order (1) the applicant shall within a further 60 days:

   (a)pay the respondent the sum of $74,837.80.

   (b)refinance into his sole name the loan secured by mortgage over the Property O property.

5. Contemporaneously with the applicant complying with Order (4) the respondent shall sign all documents and do all acts and things required to procure the discharge of the mortgage and transfer to the applicant at the expense of the applicant the whole of her right title and interest in the Property O property and the applicant shall indemnify the respondent and keep her indemnified from liability for the said mortgage and all rates and outgoings owing in respect of the property.

6. If the parties comply with Orders (4) and (5) then they shall no later than the completion of the transfer of the Property O property to the applicant do all acts and things and sign all documents required to sell the 18 horses, the tractor, the slasher, the post hole digger and the carryall tractor attachment and the proceeds of sale after payment of the costs commissions and expenses of sale shall be paid as to 40% to the applicant and 60% to the respondent.

7. If the respondent fails to comply with Order (1) and the applicant fails to comply with Order (4) then the parties shall do all acts and things required to sell the Property O property and for that purpose:

   (a)the property shall be listed for sale by private treaty with a real estate agent agreed between the parties and failing agreement as nominated by the president of the Real Estate Institute of NSW. 

   (b)the listing price of the property shall be the amount agreed between the parties and failing agreement be as nominated by the agent.

   (c)the sale price of the property shall be such amount as agreed between the parties and failing agreement as nominated by the agent.

   (d)the parties shall co-operate in every way with the agent in relation to the marketing of the property for sale including making the key readily available and allowing inspection of the property at all times reasonably requested by the agent.

   (e)upon agreement being reached for sale of the property the parties shall execute the contract of sale and all other documents necessary to complete the sale including all transfer documentation forthwith upon its submission to them by the agent or their solicitor.

8. The proceeds of sale shall be utilised:

   (a)to pay the costs, commissions and expenses of sale including any rates adjustments.

   (b)to pay the (omitted) Bank the amount owing pursuant to the mortgage registered on the property.

   (c)to pay the balance as to 40% to the applicant and 60% to the respondent.

9. If the parties comply with Order (7) then no later than the date of settlement of the sale of the Property O property the parties shall do all acts and things required to sell the 18 horses, the tractor, the slasher, the post hole digger and the carryall tractor attachment and the proceeds after selling costs shall be paid as to 40% to the applicant and 60% to the respondent.

10. Until either Order (1) or Order (4) are complied with or until the property is sold whichever is earliest:

    (a)the respondent shall have the sole right to occupy the property.

    (b)the respondent shall pay the mortgage instalments and the rates and outgoings for the property as they fall due.

11. Each party is otherwise declared the owner of all assets in their possession or under their control.

12. If either party refuses or neglects to sign or execute and return a document within 14 days of a written request to do so then the Registrar of the Newcastle Registry of the Federal Circuit Court is appointed under Section 106A of the Family Law Act 1975 to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.

IT IS NOTED that publication of this judgment under the pseudonym Hobson & Manson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2650 of 2015

MR HOBSON

Applicant

And

MR MANSON

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for a de facto property settlement following the end of a 14-year relationship.

3. The pool is very small; on my calculation it is worth $150,638.00. Each party sought a 60/40 division in their favour and each sought to retain the former matrimonial home. 

4. The parties did not object to being called husband and wife during the hearing but it is a de facto property matter and I will refer to them in these reasons as the applicant (the de facto husband) and the respondent (the de facto wife).

5. It is extremely sad that the parties insisted on running a two-day trial over their dispute. They are 53 and 61 respectively and neither is in a strong financial position.

6. The respondent said that she had paid legal fees of $12,412.00. I cannot entirely make sense of the letter her solicitor provided about her unpaid legal fees but it could be that she owes an additional $12,350.00 which seems to me to be likely. The applicant’s  solicitor chose not to put into evidence the husband’s total unpaid legal fees to the conclusion of the trial but the husband declared unpaid legal fees of $12,075.00 in his financial statement and if you add the cost of a two-day hearing it seems likely that he is also going to be up for another $12,000.00.

7. The parties are 20% apart and 20 % of the pool is $30,000.00. The costs incurred by the parties easily exceed that and it is difficult to accept that either party did a cost benefit exercise before embarking on the hearing.

The evidence

1. The applicant gave evidence in his case.

2. The respondent gave evidence in her case as did her former husband Mr C and her sister-in-law Ms A. Mr C’s evidence was as to the amount the respondent received from a property settlement in about 2000. Ms A’s evidence was about the return of some property during the course of the proceedings and ultimately nothing turns on that. 

3. Only the applicant and respondent were cross-examined. 

4. There were significant credit issues with the applicant.

5. The applicant was asked his address when he first went into the witness box and he gave a particular address. When confronted with evidence that this was not correct he admitted that he was not living at that address but was living somewhere else.

6. The applicant is receipt of a (employer omitted) pension. He said in his affidavit that he was not well enough to work at present and he disclosed no weekly earnings from employment in his financial statement. When he was confronted with evidence that he had earned $13,000.00 in the previous eight months he admitted that it was true, and the list of income he had received included income received five days before he affirmed his financial statement.

7. The applicant said that the woman who was living at his address was his flatmate and that he rarely socialised with her. When confronted with evidence that he had gone on a 10-day holiday to (country omitted) with her around the time of his birthday in (omitted) 2016, he admitted that this was true and said that he had met her family during the trip. He still refused to concede that they were in any sort of a relationship. 

8. In summary the applicant admitted things when faced with evidence contradicting his story and I have a significant concern that he may have given other untrue evidence to aid his case.

9. There were also credit issues with the respondent. Several times she gave evidence in the witness box which was different to the evidence in her affidavit, for example about whether she worked in (omitted), although there is some excuse for that in that her trial affidavit was confusingly drafted and perhaps she did not notice that when she read it. 

10. More importantly she insisted that entries in her bank statements which she had redacted would show payments to her by her children even when it was suggested to her that they would show payments to her from Centrelink. When she was obliged to produce non-redacted entries shortly afterwards they did indeed show payments from Centrelink. 

11. It appears that both parties were prepared to bend the truth and only make admissions when caught out and this will make it difficult for me when I have to decide issues in dispute.

12. The Court’s task in assessing the respondent’s case was made more difficult by the way her affidavit was drafted. Trial affidavits should contain evidence, not comment, submissions and opinion and the respondent’s affidavit was rife with that sort of material.

13. The affidavit was also not drafted as a standalone affidavit but was drafted as a response to each paragraph of the applicant’s affidavit and I can understand why the respondent may have become confused when reading it. 

14. I did not encourage objections given that it was a very small property case and it would have taken a day to work through every paragraph of the respondent’s affidavit. However I make these comments for future reference.

15. An affidavit which responds sequentially to the paragraphs in the other party’s affidavit not only causes difficulties for the other side; it also causes difficulties for the party whose affidavit it is. There is a real risk that points will be missed when the Court continually has to chase back and forth between affidavits to make sense of denials or admissions in one of the affidavits.

16. The Court is also not helped by a drafting style of the nature of:

    I brought into the relationship items of personality and a motor vehicle.  I further say that they were quite substantial (bold for emphasis) pre-relationship assets given that I brought into the relationship furnishings and items for a three-bedroom home.

17. The words “bold for emphasis” were regrettably repeated on numerous occasions throughout the affidavit and should not appear in any future affidavits. 

Background

1. The parties commenced cohabitation in late 1999 and lived in a de facto relationship until they separated in January 2014. They had a relationship of about 14 years.

2. The parties have no children. The applicant has a daughter Ms K from a previous relationship but there is nothing in the affidavit to suggest that he had a relationship with her after he separated from her mother. The respondent has a son and a daughter who are both now adults. 

3. When the parties met the respondent was working at (employer omitted) and the applicant was working at (employer omitted) in (omitted). They commenced cohabitation when the wife moved to (omitted).  It appears the applicant worked there and the respondent did not. 

4. The parties then moved to (omitted) where the wife worked as a (occupation omitted). The husband also worked in (omitted), from memory, perhaps at (employer omitted) and at a (employer omitted).

5. In 2000 the wife received a property settlement. She did not appear to have any independent recollection of the amount she received. Her former husband Mr C said that it was $220,000.00 cash plus a car and furniture. The husband said that it was $200,000.00 plus but in the witness box he conceded that it may have been $220,000.00. 

6. In 2001 the wife purchased land at Property O in her sole name.  The purchase price was $92,000.00 and a deposit of $20,000 was paid from the wife’s money I am satisfied.

7. The husband said that he was party to the loan. I am not sure that his recollection of that can be relied on. He may be confusing that loan with a later loan when the (business omitted) was purchased.

8. The parties moved to Property O in 2002 and they lived there for the remainder of their relationship and built a shed and later a cottage on the land. 

9. In September 2002 the parties purchased a (business omitted). They paid $55,000.00 for it and they jointly conducted the business apart from a period of about six months when the applicant retreated to Property O because he could not face doing the work because of his post-traumatic stress disorder.

10. There was no evidence of the profitability of the business. The respondent said that they lived out of the (business omitted) and that had a ring of truth.

11. The (business omitted) was sold in 2005 for $125,000.00. Thereafter it seems probable that the parties lived partly off that and partly off a Newstart allowance. They commenced a (omitted) business called (business omitted) but it was not profitable.

12. The applicant was a (occupation omitted) between 1985 and 1996. He was diagnosed with post-traumatic stress disorder and left the (employer omitted). He thereafter had a variety of employment but he came under the Police Regulation (Superannuation) Act1906 and during his relationship with the respondent he successfully applied for (employer omitted) pension. He began receiving a pension in July 2008 and he also received some lump sum payments which I will refer to later.

13. After the applicant commenced receiving the pension the parties lived on the pension and continued to run the (business omitted). In mid-2012 the respondent began working at a local (employer omitted). 

14. The parties separated in January 2014 at which time the applicant left the Property O property.

15. It appears from the applicant’s affidavit[1] that there was initially some prospect of reconciliation, which probably explains why for about the next six months the applicant’s pension kept going into the joint account from which the mortgage was paid. However after six months the parties did not reconcile and the applicant ceased contributing to the mortgage payments. 

    [1] Paragraph 116

16. The respondent has lived on Property O since separation and has made the mortgage payments since the respondent stopped contributing to the joint account. The applicant is living in rented accommodation in (omitted). 

The assets and liabilities

1. The assets are as follows:

ASSETS	Ownership	VALUE
Property O	Wife	250,000.00
Equipment – tractor (13,500) slasher (1500), post hole digger (600) Carryall tractor attachment (200)	Joint	15,800.00
(omitted) Horses	Joint	6,775.00
(omitted) Motorcycle	Husband	6,000.00
TOTAL ASSETS	278,575.00

1. The Property O property is registered in the respondent’s name, the equipment I have put down as joint and the horses as joint and the (omitted) Motorcycle is the applicant’s.

2. The applicant said in his affidavit that there were (omitted) horses on the property when the parties separated and there are only (omitted) now.  The respondent said there were (omitted) when the parties separated. No explanation was given by anyone for what happened to the rest of the horses and there was no cross-examination on the issue. All I can do is put in the existing (omitted) horses.   

3. At some point the applicant also had a Holden (omitted) utility. He alleged that it was damaged when it was returned to him after separation.  Nobody suggested that it should be included in the list. 

4. Both parties declared some household contents. The applicant said that his were worth $500.00. The respondent said that hers were worth $1,000.00. There was no evidence of value and nobody suggested they should be included. 

5. The liability which is relevant is the joint mortgage worth $129,937.00, because the mortgage is joint even though the property is in the respondent’s name.

6. The applicant said that he owed about $5,000.00 to (omitted) Super being an overpayment of superannuation and that he was repaying it and I think the rate at which he was repaying it was $100.00 a fortnight. I do not intend to include that as a liability. It temporarily reduces the applicant’s income and I intend to treat it as an s. 90SF (3) matter.

7. There was evidence of a possible debt to the Australian Taxation Office but the applicant said that it did not exist. The respondent was concerned that although it might have been written off it might be clawed back if some money came into view.  In the end nobody suggested that it be included as a liability and I have not included it.

8. The respondent said that she owed money to an accountant who did some work investigating that debt but she provided no evidence in support of that claim and I cannot include it. 

9. There was reference in the applicant’s affidavit to a debt owed to Ms C and Mr D but it was not suggested at trial that it was still owed.

10. The respondent has superannuation with (omitted) which is worth $2,000.00. It may have come from her recent employment although the amount is not congruent with what the respondent has been earning but there are numerous issues like that in this case. 

11. The respondent said that she had acquired some superannuation when she worked in the early 2000s but that it had all been eaten up by fees and no longer existed. 

12. In his financial statement the applicant declared that he had $24,000.00 in superannuation. He did not say what fund it was in.  At trial he said that this was not correct and that he had no superannuation.

13. That is not correct either and is another error in his financial statement because it emerged during the hearing when he was required to go and investigate it that he had (omitted) superannuation worth about $400.00 which he had acquired through working as a (occupation omitted). 

14. The applicant may have other superannuation, I do not know.  He clearly had not made any inquiries about it and perhaps had hoped no one would notice.

15. I am not going to include the (omitted) superannuation, which is post-separation, in the pool. The failure to disclose it is a credit issue as much as anything else.

16. The respondent’s counsel suggested that the applicant might still have a residual (omitted) Super entitlement. However the applicant denied it and there was no evidence that this was the case and I cannot do anything with that supposition or suggestion. The respondent could have sent a Form 6 to (omitted) Super seeking information about superannuation. She did not do so and the evidence is as it is.

1. As I observed during the hearing I hope the husband has not inadvertently failed to disclose superannuation worth $24,000.00 because given the size of the pool that could almost justify an s. 79A application. However there is no evidence of that at present.

2. The pool consists of non-superannuation assets of net $148,638.00 and superannuation of $2,000.00, a total of $150,638.00. 

The applicable law

1. The parties lived in New South Wales throughout their relationship, separated after March 2009 and were together for more than two years and I am satisfied that I have the jurisdiction to deal with the application. 

2. Pursuant to s. 90SM (3) of the Family Law Act I have to consider whether it is just and equitable to make property settlement orders but given the fact that the parties acquired property over a fairly lengthy relationship and cannot continue to share it, it is the kind of case in which Stanford & Stanford[2] makes clear that it is just and equitable for the Court to consider making property settlement orders.

   [2] Stanford & Stanford (2012) HCA 52

3. I will take the usual steps to resolve which orders are appropriate namely to consider the contributions each party has made to the acquisition, conservation and improvement of the assets; to consider the matters in s. 90SF (3) and to consider whether they require an adjustment to a percentage finding about contributions and finally to consider whether the overall outcome is just and equitable – a step-back exercise at the end.

Contributions

1. I am satisfied based on Mr C’s evidence and the husband’s concession that the respondent made an initial contribution of $220,000.00 and that she also had a car and furniture.

2. The applicant alleged that he had savings at the beginning; that is what he said in his affidavit. There was no evidence of it and it was denied by the respondent. The applicant was not an especially truthful witness and I cannot rely on his recollection or be satisfied on the balance of probabilities that he remembers having any savings. 

3. The applicant wants the court to accept that he remembers that but he stonewalled all questions about his employment around this time with a series of “don’t remembers”.  I do not accept that he accurately remembers having savings.

4. The respondent used $20,000.00 of her cash as a deposit on Property O. It must have come from her because there is no evidence that applicant had any cash at the time.

5. I also accept the respondent’s evidence that some of her money was used to make improvements to Property O. The applicant conceded this in his affidavit although he said that he paid for some of the improvements as well.

6. It is very difficult to make findings about exactly who paid for what improvements at Property O. The respondent was the one who had the cash at the beginning but she did not give any direct evidence herself about amounts paid or exactly what she paid for.  The applicant gave evidence about some things he paid for but left gaps because there were other things which obviously must have been paid for which he did not claim to have paid for.

7. The applicant gave some evidence about work he did on the buildings. He said that he built the shed but he then said the parties jointly applied for an owner builder’s permit to build a cottage. He agreed that the respondent’s brother did some of the electrical. The respondent said that her family largely built the cottage.  I cannot make any findings about exactly where the truth lies about all of this. Neither party was a particularly credible witness. I am satisfied both parties had some input, both monetarily and in terms of work on the construction of the buildings on the property.

8. One of the problems in the matter which I will refer to a little bit later on – and it applies to both the applicant’s lump sum and perhaps more particularly, the respondent’s lump sum – is that there is just no evidence of where quite large amounts of money that the parties had at one time went to.

9. The parties received a lump sum when the (business omitted) was sold in 2005. Best I can tell it was used up on living costs after that when they started the (omitted) business.

10. The (omitted) business was not a financial success. The parties may have enjoyed it but it was not a success financially.

11. Later in the relationship the applicant brought in some lump sums; this was around the time that he qualified for his (employer omitted) pension.

12. The applicant received $31,458.72 on 11 July 2008. He said that he bought a Holden (omitted) for $7,500.00 but did not account for what happened to the other $24,000. 00.

13. On 13 July 2009 the applicant received $19,787.56 and $148,253.00. I am not sure if he received both amounts on the same day but it does not really matter. He said that out of that money he paid $35,000.00 to discharge debts arising out of ownership of the (business omitted), $21,000.00 for a tractor and slasher and $9,000.00 for a (omitted) motor vehicle and that he spent $11,100.00 on equipment and a box trailer. Some horses were also apparently purchased although the applicant did not give any names or amounts. 

14. In total the applicant accounted for $71,100.00 out of a total of nearly $160,000.00.

15. The applicant also said that $50,000.00 was lost to a bad investment. 

16. So $71,000.00 was accounted for, $50,000.00 was lost and $40,000.00 was not accounted for.  

17. In 2008 the applicant began receiving the (employer omitted) pension of $1,400.00 per fortnight.

18. In mid-2012 the respondent went back to work. She commenced working at a local (employer omitted) and she is still in that same job. 

19. Both parties made non-financial contributions during the relationship. The applicant gave evidence about specific building tasks and tasks with the horses which he carried out.

20. I agree with the submission by the applicant’s solicitor that the respondent’s evidence about her non-financial contributions is scant, but there is some, for example in paragraph 19(c) of her affidavit. Also the applicant’s affidavit is silent about some things such as who did the cleaning and cooking. There are a lot of tasks which he did not claim to have done and which must have been done and the only person who could have done them was the respondent. 

21. The applicant’s solicitor referred to the paucity of evidence about the respondent’s contributions in support of an argument that the court should find that the applicant contributed more but I do not accept that this is a valid argument. There is some evidence in the respondent’s affidavit about contributions, although scant and general, and the applicant conceded some things and was silent about others.

22. Before making a final assessment of contributions I need to consider post-separation matters. 

23. The respondent has lived on the Property O property since separation. She has paid the mortgage for most of that time and has reduced the balance somewhat but she does not get credit for that because she has had the benefit of living on the property. 

24. There was evidence that early on the applicant was couch-surfing so he did not have accommodation costs but that was early on.  He is currently paying rent and he was when the proceedings commenced in 2015. 

25. The respondent continued to contribute to the mortgage for the first six months after separation because his pension went into the joint account but this was when it also seems that (a) there was thought of reconciliation and (b) he was couch-surfing and I am not satisfied that he should get any special credit for making contributions to payment of the mortgage in the first six months after separation. 

26. I must make an overall assessment of contributions and what I have is some fairly sketchy evidence – more by the respondent but also by the applicant – considerable concern about reliability of evidence and a strong suspicion that there has been a good deal of reconstruction and perhaps even reinvention of the past. 

27. Both parties brought in large lump sums at different times and they have, to be frank, very little to show for it. They lost money in the joint venture on the (business omitted). The applicant cannot account for what happened to all his money and neither can the respondent.  The valuation of the land which was attached to one of the affidavits said that the habitable dwelling on the land only added $50,000.00 to the value of the property so the parties do not have a lot to show for the large lump sums they each had at various times. 

28. The applicant’s solicitor submitted that the applicant’s contribution should be assessed as exceeding the respondent’s.

29. I do not accept the argument he put forward that this is justified by the fact that there was not much evidence about contributions by the respondent.

30. His other submission was that the applicant’s contributions should be assessed as exceeding the respondent’s because from July 2008 he had his pension of $1,400.00 a fortnight and the respondent was either not working or when she started working in 2012 her wages did not equal that but I do not accept that submission either.

31. It is not an appropriate way to look at the matter and it is an unfortunate way to look at it because it may have led the parties into spending a good deal of money on a two-day trial. 

32. The parties were together for 14 years. Assessing contributions is not an arithmetical exercise. I cannot break the relationship down into segments and make findings about different proportions of contribution at different times. During the period from 2008 to separation the applicant was bringing in more income than the respondent but the respondent was not sitting at home not working. She was out earning the best income that she was able to earn. When the (business omitted) was in operation, when the respondent took up the slack for six months because the applicant did not feel equal to working in the business. These are just the swings and roundabouts of a relationship. 

33. The parties threw in their lot together. They were together for 14 years.  At various times things waxed and waned in terms of their efforts and the amount of their contributions but I am satisfied that overall contributions during that relationship should be assessed as equal and that means that each party is entitled to $75,319.00 of the pool. 

The s. 90SF (3) matters

1. I then have to consider the matters in s. 90SF (3) of the Family Law Act which are the equivalent of the s. 75(2) matters in a case where people are married.

2. The applicant is 53. I accept that he suffers from post-traumatic stress disorder. He currently receives $1,606.00 per fortnight or $803.00 per week by way of a (employer omitted) pension. 

3. According to his financial statement he is paying no income tax on that and it is a pension for life and is unaffected by any other employment so he can do whatever he likes and earn however much he likes and he will still continue to receive that pension. It is the equivalent of $41,756.00 per annum but it is much more valuable than that if no income tax is being paid on it. 

4. The applicant currently has to repay $5,000.00 but if that is being repaid at $100.00 per fortnight it will reduce his income for a period of time but not for a very long period into the future.

5. The evidence at paragraph 174 of the applicant’s affidavit sworn on 27 January 2017 is concerningly inaccurate. He said as follows:  

   Since separation I have carried out some work as a (occupation omitted) and also doing (omitted) work. However I currently do not feel well enough to carry out any work.

6. That is extremely misleading because there was evidence that the applicant earned $13,381.45 in the financial year to 19 February 2017 and I have to presume that is gross because I was not told otherwise. It equates to $21,161.77 per annum so the applicant was certainly not frank about his income-earning capacity and if that is added to his pension it takes his income to $62,700.00 per annum two-thirds of which is not taxed. 

7. I accept that the applicant has post-traumatic stress disorder but he has worked extensively since he left the (employer omitted) 20 years ago and he certainly has an income-earning capacity on top of his pension. 

8. Not only does the applicant have an income-earning capacity he is currently accruing superannuation.  He said that he had $400.00 in (omitted). That is incongruent with his earnings if the superannuation guarantee levy amount is being paid but I cannot take that any further.

9. I am troubled by the applicant’s failure to disclose his superannuation and his income in his financial statement and I am troubled that he may be hiding information about his income-earning capacity and his superannuation.

10. Under the -+ the applicant can commute his pension at age 55 or 60. He did not refer to this in his affidavit. However no valuation of the pension was provided so I cannot safely reflect on what a commutation might be worth. The applicant was also not asked in cross-examination about whether he intended to commute so I really cannot take that into account in trying to work out what might be a just and equitable settlement and of course commutation would affect his income.

11. The applicant is sharing accommodation with Ms D and has been for some time. She has attended court events with him and she sat in court on the first day of the hearing. She and the applicant went to (country omitted) together. They share household expenses.  Ms D is not in any other relationship.

12. The applicant denied that he was in a de facto relationship with Ms D.  I have considerable scepticism about that but I am not necessarily convinced that it is a major factor in determining a property settlement outcome in this particular matter.

13. The applicant said in his financial statement that he had unpaid legal costs of $12,000.00. It is difficult to understand why his legal costs are unpaid given his income and the fact that he had $4,500.00 in the bank when he prepared his financial statement but there it is. 

14. The respondent is 61. She is a (occupation omitted) at the (employer omitted) and has been it would appear for about 10 years. That is what she said in her financial statement. That does not entirely fit with the information that she went back to work in 2012.

15. If the respondent has been there for that length of time her employment is as secure as it can be given her age. 

16. The respondent said that she earned between $450.00 and $860.00 per week depending on seasonality. It is difficult for me to work out exactly what her income is but on that it would be somewhere between $23,000.00 and $44,872.00 per annum but she is paying tax on that.

17. There was no evidence that the respondent intended to cease working. However while the husband has a pension which is guaranteed for life and on which he is not paying any tax, the respondent is earning less than the applicant is receiving by way of a pension let alone the amount he receives on top of that for working. That is corroborated by the applicant’s solicitor’s submission that between 2012 and separation in 2014 when the respondent was working she was earning less than the applicant was getting from his pension and if that was so then it is likely to continue to be so now. 

18. So in terms of their income-earning capacities the respondent’s is far less and she is eight years older. The applicant has his pension and the income he is able to earn from personal exertion. 

19. The respondent has paid legal fees of $12,000.00. She may well owe that amount again but I cannot completely understand the letter her solicitor provided about her unpaid legal fees. 

20. The respondent’s mother Ms G lives on Property O.  She receives an age pension.  The respondent is not contributing to her support as far as I know other than providing land for her caravan. There was no evidence the respondent needed to support her mother and people can live on the age pension so I do not consider that a relevant matter.

21. Pursuant to s. 90SF(r) I must take into account any other matter which the justice of the case requires the Court to take into account.

22. The applicant’s solicitor made an issue of the fact that the respondent’s mother, daughter and daughter’s husband or partner lived on the Property O property for some time but I do not consider that relevant. The applicant acquiesced in it. There was no evidence that these people had caused damage to the property and no evidence that they cost the applicant or respondent significant sums of money.

Conclusion about s. 90SF (3) matters

1. The applicant’s solicitor submitted that there should be no s. 90SF (3) adjustment because the relationship had not affected the respondent’s income-earning capacity, there were no children and the applicant was better off because of a pension which was an incipient entitlement he brought into the relationship.

2. However I have to consider all of the s. 90SF (3) matters in order to arrive at a conclusion about whether there should be an adjustment and they include the income-earning capacity of the parties and where parties are separated or divorced a standard of living which is reasonable in all the circumstances and I must also consider any other relevant matter which the justice of the case requires me to take into account.

3. This case involves a very meagre asset pool. There is little enough to assist either party to secure housing or have some capital for the future but the respondent’s position is much more difficult than that of the applicant. 

4. The respondent is 61, eight years older than him. Her income-earning capacity is considerably less and she does not have a secure income stream for life because one of the things I can take into account under s. 90SF (3) is whether people are entitled to superannuation or a pension.

5. The applicant is presently bringing in something like $60,000.00 per annum which is worth more because of the tax situation. He has a pension for life which entitles him to $40,000.00 per annum without tax so even if he is affected by ill health or failure to obtain employment he has a secure income stream to rely on.

6. The respondent is in nowhere near a similar position and will be much more heavily impacted on adversely by the end of the 14-year de facto relationship. 

7. In my view there should be an adjustment in the respondent’s favour for s. 90SF (3) matters and I consider that a 10% adjustment is appropriate.

8. I acknowledge that this will result in a $30,000.00 differential between the parties’ entitlements but this is half one year’s current income for the respondent. He is eight years younger than the applicant and I am satisfied that it is an appropriate s. 90SF (3) adjustment.

9. That means that the applicant will be entitled to $60,255.20 from the pool. He has his motorcycle worth $6,000.00 and that would mean that if the respondent kept the Property O property and the remaining assets the applicant would be entitled to $54,255.20 from the respondent.

10. I then have to consider what to do with the property because both parties said that they wanted to keep it.

11. As far as I can see from looking at the material the respondent has always wanted to keep the property and the horses and equipment and for a very long time the applicant agreed that she should be able to. He has recently changed his position however and he now says that he should be given first bite at trying to keep the property. 

12. The applicant’s solicitor suggested that in the face of this dispute about who should retain the property the Court should order its sale. He said that the parties could then each bid at the auction, and if they bid each other up the one who did not get the property would get a little bit of extra cash, so what harm? 

13. I cannot understand the logic of this and I cannot understand why a court would do something like this to these parties. The parties would then incur costs of sale. It is simply not appropriate. If the situation facing the Court is that two parties want to keep a property then the Court has to make a decision about which of them should be given first option to do so. It may be appropriate to order sale in the rare case where it is impossible to fix a value but not if the dispute is simply about who should have first option to keep the property.

1. The applicant’s solicitor suggested that the respondent had not put forward any reason why she should get first option. I do not accept that. I can have regard to the fact that it was her money from her previous property settlement which went into the purchase in the first place which makes her wish to keep it completely understandable, that she has lived on the property for three years and two months since separation, that she has an interest in horses and finally that she wishes to keep it. In my view those are good enough reasons to give her the opportunity to keep it although I also have to weigh up the respondent’s reasons and see if one outweighs the other. 

2. The applicant’s solicitor said that I should have regard to the fact that the respondent had put forward no evidence that she could refinance whereas the applicant had evidence was that he could and he also referred to the evidence that the applicant was a (omitted) man and the land was identified as (omitted) land by the (omitted) people. 

3. I do not accept that the last point is relevant. There was no evidence that this was something which caused the parties to purchase the land in the first place and until recently the applicant was happy for the respondent to retain the land. The issue of it being (omitted) land has been brought up at the last moment.

4. I do have to consider the fact that the respondent may not be able to refinance the loan and it is true that she did not put forward any evidence that she could. However she has been paying the mortgage to date and three years have passed since separation. 

5. There will be no prejudice to the applicant if the respondent is given 60 days to explore the issue of whether she can refinance. The parties have been separated for a lengthy period and the applicant has a roof over his head.

6. Given that the respondent has lived on the property for three years since separation, that her property settlement money went into it in the first place and that until recently it was the applicant’s position that she should be allowed to retain it I am going to give the respondent first opportunity to retain the property, but if she cannot do so then the respondent will have the opportunity to retain it and if neither of the parties can refinance the mortgage and pay the other out, which seems unlikely, but if neither can, then the property will have to be sold. 

7. The applicant proposed that if he kept the property the respondent should be ordered to leave behind certain specific items of furniture and household contents but there was no cross-examination about whether those items still existed and I do not know how anyone would be able adjudicate on what phrases like “the crockery purchased by the applicant” or “the saucepans purchased by the applicant” meant if an enforcement application was brought.   

8. The applicant also proposed that if he retained the property the respondent could keep the tractor and the horses. However if the land goes out of the respondent’s possession I do not know whether she is going to want the tractor and the horses. 

9. I propose to order that if the applicant keeps the property the respondent can still have the items in the house because she has been living there for three years. She can take them and go; I am not going to sit down and work out who gets bits of crockery and saucepans. 

10. After hearing further submissions I propose to order that if the applicant retains the property the horses and equipment which are part of the pool be sold and be divided between the parties.

11. I am satisfied given the very small pool that the outcome is just and equitable. The respondent will end up with more capital but she is older, she has at far less secure future income and the relationship was of 14 years duration.

I certify that the preceding one hundred and forty one (141) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:       3 April 2017