Holcombe and Holcombe

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOLCOMBE & HOLCOMBE

[2019] FCCA 2669

Catchwords:
FAMILY LAW – Property settlement – marital relationship – the wife receiving about $890,000 following an injury – the husband receiving about $450,000 following a disability – two and a half year relationship – just and equitable division of combined assets.

Legislation:
Family Law Act 1975, ss.75(2), 79(2), 79(4)

Cases cited:
In the Marriage of Weir, Re 110 FLR 403; 16 Fam LR 154; [1993] FLC 92-338
Kennon v Kennon (1997) 139 FLR 118; (1997) 22 Fam LR 1; (1997) FLC 92-757
Stanford v Stanford (2012) 247 CLR 108; (2012) 87 ALJR 74; (2012) 47 Fam LR 481; (2012) FLC 93-518; (2012) 293 ALR 70; [2012] HCA 52

Applicant:

MS HOLCOMBE

Respondent:

MR HOLCOMBE

File Number:

MLC 7879 of 2017

Judgment of:

Judge Riley

Hearing dates:

2, 3, 10 & 21 May 2019

Date of last submission:

21 May 2019

Delivered at:

Melbourne

Delivered on:

20 September 2019

REPRESENTATION

Counsel for the applicant:

Mr J. Gates

Solicitors for the applicant:

Nevett Ford (Melbourne)

Advocate for the respondent:

In person

Solicitors for the respondent:

None

ORDERS

The respondent husband pay to the applicant wife within 30 days the sum of $4,027.80.
The funds held by Mills Oakley on behalf of the parties be released to the applicant wife within seven days.
The funds held on behalf of the parties by Nevett Ford (Melbourne) be released to the applicant wife within seven days.
Unless otherwise specified in these orders (and except for the purpose of enforcing the payment of any monies due under these or any subsequent orders):
(a)each party be solely entitled (to the exclusion of the other) to the legal and beneficial ownership of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects in the possession or control of that party as at the date of these orders;
(b)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(c)any joint tenancy of the husband and wife in any real or personal property be expressly severed.

DIRECTION

The registrar refer this matter to the Commonwealth Department of Human Services (“the Department”) to investigate whether the husband has fraudulently obtained a disability support pension.
The registrar be permitted to give the Department a copy of these orders and the reasons for judgment and any other documents the Department may seek from the court file in relation to this matter.

NOTATIONS

(A)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7879 of 2017

MS HOLCOMBE

Applicant

And

MR HOLCOMBE

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for property adjustment under s.79 of the Family Law Act 1975 (“the Act”). Final orders were made by consent in this matter on 13 December 2017. However, those orders were set aside by consent on 19 March 2018 pursuant to s.79A of the Act.
The applicant wife was represented for most of the proceedings, including when the final orders were made by consent on 13 December 2017, when those orders were set aside by consent on 19 March 2018 and for the final hearing. The respondent husband has been unrepresented for most of the proceeding. He was represented when the final orders were made by consent but not when they were set aside and he was not represented for the final hearing.
Following the final hearing, and while this judgment was reserved, the wife has filed a number of applications. The first was an application to reopen the case to include some opals in the property pool. That application was dismissed by consent. The second was a contravention application which a registrar dismissed. The third was an application in a case asking that the husband be dealt with for contempt of court. The fourth was an application that the husband has breached s.121 of the Act. The third and fourth applications are listed for hearing on 24 September 2019. I have not had regard to those applications, or the evidence in support of them, for the purposes of this judgment as they were not associated with an application to reopen.

Background

The wife was born on … 1977 and is now aged 42 years. The husband was born on … 1979 and is now aged 39 years. On … 2014, the parties commenced cohabitation. They were married on … 2015. They finally separated on 14 November 2016. Their cohabitation lasted about two and a half years.
There are no children of the relationship. The husband has a son from an earlier relationship, X, who was born on … 2006. X is now 13 years old. He was eight years old when the parties commenced cohabitation. X did not live with the parties, but spent about one weekend a month with them.
Both parties are now on disability pensions. However, previously, they both worked as labourers. Prior to the commencement of their relationship, both parties were injured at work. The wife received payments for her injury totalling about $890,000. About $562,000 of that money was received prior to the parties commencing cohabitation, and about $327,000 was received during the period of the cohabitation.
In the last year of the relationship, the husband received about $446,000 by way of a total and permanent disability superannuation payout. Of that sum, the husband received about $90,000 in … 2016, and about $356,000 in … 2016. The husband took legal proceedings in the Administrative Appeals Tribunal (“the AAT”) to obtain further compensation for his injury. The non-disclosure of those proceedings was the major reason for the consent orders being set aside. However, between the consent orders being set aside and the final hearing, the husband’s application for further compensation was dismissed by the AAT.
The parties bought various pieces of real estate in rural locations. They also bought a number of cars, motorbikes, caravans, trailers, boats, watches, items of jewellery, household chattels and other items. The wife alleged that the husband bought most of these items with her money. However, notably, the wife conceded that she bought a second hand Motor Vehicle T, a second hand Motor Vehicle U, a motor bike, and a business called Business A. Much of the property bought by the parties has now been disposed of, in some cases at a loss.
There were allegations of violence, mostly by the wife against the husband, but he also alleged violence on the wife’s part, most notably against his mother. There were a number of intervention orders, at least one of which was withdrawn by the wife. However, as the matter stands, the wife has a five year intervention order against the husband which expires on 6 August 2023. As neither party advanced an argument under Kennon v Kennon (1997) 139 FLR 118; (1997) 22 Fam LR 1; (1997) FLC 92-757, I will not dwell on the family violence.
On the first day of the parties’ honeymoon, when the parties had boarded a cruise ship at the Port, the wife went onto a balcony to have a cigarette, a fight ensued between the wife and another woman and between the husband and the woman’s husband, the parties to this proceeding were required to leave the cruise (which, fortunately, had not left the dock) and the husband was banned for life from that cruise line. It was not suggested that the other couple were required to leave the cruise.
The wife submitted that the parties’ assets should be divided 71% in her favour. The husband initially submitted that the parties’ assets should be divided equally. However, in closing submissions, he conceded that the wife would be entitled to 65% of the pool. That meant that, after four days of hearing, the parties were 6% apart in percentage terms, although there were also issues about the value of the pool.
The wife submitted that she had made the greater financial contributions, and that, following separation, the husband had disposed of assets contrary to court orders. The wife also submitted that the husband had not properly disclosed his assets or his income from a farm and from buying and selling cars and other items online. She said her future needs were greater than the husband’s because she would always be in receipt of Centrelink benefits whereas the husband could work.
The husband submitted that he was a fair man who would help anybody out. He said he had made substantial contributions to the wife’s properties, including painting, removing wallpaper and cleaning gutters, even though he was on a disability pension and needed a carer.

The legislation

Section 79 of the Act gives the court power to alter the interests of the parties to a marriage in the property of the parties to that marriage. Sub-section 79(2) of the Act provides that:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Section 79(4) of the Act sets out the matters the court must take into account when considering what orders, if any, should be made for the alteration of the interests of the parties in property. Those matters are:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The matters to be taken into account under s.75(2) of the Act are as follows:
(a)the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party’s role as a parent; and
(m)if either party is cohabiting with another person — the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

The approach to applications under s.79

In Stanford v Stanford (2012) 247 CLR 108; (2012) 293 ALR 70; (2012) 47 Fam LR 481; (2012) FLC 93-518; (2012) 87 ALJR 74; [2012] HCA 52, the High Court explained the proper approach to an application under s.79 of the Act as follows:
37.First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. … The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
38.Secondly, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth, Dixon CJ observed that a power to make such order with respect to property and costs “as [the judge] thinks fit”, in any question between husband and wife as to the title to or possession of property, is a power which “rests upon the law and not upon judicial discretion”. …
39.Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is “just and equitable” to make the order is not to be answered by assuming that the parties’ rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that “[c]ommunity of ownership arising from marriage has no place in the common law”. Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be “decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses”. The question presented by s 79 is whether those rights and interests should be altered.
40.Thirdly, whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”. To conclude that making an order is “just and equitable" only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
…
42.In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
(emphasis added)(footnotes omitted)
Stanford requires the following matters to be determined in applications brought under s.79 of the Act:
a)whether the parties have separated;
b)the assets and liabilities of each party;
c)the contributions of each party;
d)the future needs of each party;
e)bearing in mind all of the foregoing matters, whether it is just and equitable to make any orders altering the interests of the parties in their property; and
f)what orders, if any, are just and equitable in all the circumstances of the case.

Stanford does not require these matters to be addressed in any particular order. In most cases, it would seem rational to consider them in the order set out above.

The wife’s proposal

The wife proposed that she receive 71% of the asset pool. The final property orders she proposed in her amended outline of case filed on 2 April 2019 are as follows:
1.That the Respondent pay to the Applicant days (sic) the sum of $231,364.71 as follows:
(a)As to $40,364.71 being the funds held by Mills Oakley Lawyers on behalf of the parties;
(b)The balance of $191,000 within 90 days.
2.That the funds held on behalf of the parties by Nevett Ford Lawyers Melbourne be released to the Applicant.
3.That should the Respondent fail to make payment to the Applicant in full in accordance with Order 1 herein, the property at B Street, Suburb C, in the State of South Australia (“the Suburb C property”) be sold and:
(c)the property shall be listed for sale in such manner as advised by a real estate agent as agreed between the parties and failing agreement as nominated by the President of the Real Estate Institute of South Australia from time to time;
(d)the Applicant have the conduct of the sale to the exclusion of the Respondent;
(e)upon completion of the sale, the proceeds of the sale be applied in the following order:
(i)     first, to pay all costs, commissions and expenses of the sale;
(ii)     second, to discharge any mortgage encumbering the property;
(iii)   third, to pay to the Applicant sum as is outstanding to her pursuant to Order 1 herein, along with interest at a rate as set by the Family Law Rules; and,
(iv)    to pay the balance to the Respondent.
4.That unless otherwise specified in these Orders (and except for the purpose of enforcing the payment of any monies under these or subsequent Orders):
(a)Each party is solely entitled (to the exclusion of the other) to be (sic) the legal and beneficial ownership of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects in the possession or control of each of them respectively as at the date of these Orders;
(b)Each party be solely liable for and indemnifies the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
(c)Any joint tenancy of the husband and wife in any real or personal estate is hereby expressly severed.
5.That the parties have liberty to apply to the Federal Circuit Court of Australia at Melbourne in respect of matters relating to enforcement or interpretation of these Orders upon giving seven (7) days’ notice in writing to the other party.
6.That the parties execute all deeds or instruments and do all acts and things necessary to give validity and operation to the deed or instrument to give effect to these Orders.
7.That pursuant to section 106A of the Family Law Act 1975 if either party shall refuse or neglect to sign any document or do any such thing as may be reasonably required to give effect to these Orders within fourteen (14) days of the service of a demand upon him or her to execute such document or to do such thing, the Registrar or Deputy Registrar of the Federal Circuit Court at Melbourne is empowered to sign such document and to direct such things to be done in the name of the party in default.
8.That the Respondent pay the Applicant’s costs of and incidental to these proceedings including costs reserved over the course of the proceedings.

The husband’s proposal

The husband said at the commencement of the trial that the pool should be split 50:50. However, at the conclusion of the final hearing, the husband amended his proposal to say that the wife should receive 65% of the property pool. In any event, the proposed final property orders as set out in the husband’s response filed on 12 June 2018 are as follows:
1.That the Total Property Pool Be Split 50-50 in its Value of Appox 1.2 million dollar 50- $600 Kea
2.That the $100,000 dollars presentley in trust from the sale proceeds of my Home and held by Ms Holcombe's Lawyers Mills Oakley be realesed in full with any Intrest to myself immediately to my bank account. So I can Pay my Forced legal Fees and Mortake out.
3.That the Applicant refrain from searching seeking or Joining any FB info and Leave Him Alone.
4.Each Party Pay there own Legal Cost Fees. as I represented my self as to costs.
(as above) the propert pool be split 50-50 as we have no kids and 1 Hae1
2.An order for Mills Oakely to release my $100,000 from the Sale of My Home in Suburb D that they tied up be released to me immediatley as well any Intres.
3.Each Party pay there own cost as I did not take Ms Holcombe to Court I said 50-50 from the Start and I could Not Afford a Lawyer and Cost as I am a dad with kids so had no option that to represent myself.
(errors in original)

Material relied upon

In her case outline, the wife said she relied on:
a)her affidavit affirmed on 7 March 2019;
b)her financial statement filed on 6 March 2019;
c)her amended initiating application filed on 6 March 2019; and
d)the affidavit sworn by Dr E on 11 June 2018.
However, the husband objected to Dr E’s evidence on the basis that he was the husband’s psychiatrist as well. The husband said there was a conflict of interest. In any event, the wife’s counsel said that the purpose of Dr E’s affidavit was to show that the wife was incapable of working in the future. The husband accepted that, so it was unnecessary for the wife to rely on Dr E’s affidavit.
In his oral evidence, the husband said he relied on all of his material including:
a)his response filed on 12 June 2018;
b)his affidavits sworn or affirmed on:
i)6 November 2017;
ii)31 March 2018 (two);
iii)22 June 2018
iv)7 December 2018; and
v)27 March 2019; and
c)his financial statements sworn or affirmed on:
i)6 November 2017; and
ii)12 June 2018.

Assessment of the parties’ credibility

Both parties were cross examined. Neither of them presented as entirely truthful witnesses.
The wife said in paragraph 30(d) of her affidavit sworn or affirmed on 3 August 2017 that she had $20,000 in her Commonwealth Bank of Australia (“CBA”) bank account at the date of separation, which was 14 November 2016. However, in cross examination, it was put to her that she had $75,000 in her CBA account at that time. The wife said that she misinterpreted what her lawyers had asked for, and the $20,000 mentioned in her affidavit was the amount she had at the time she saw her lawyers. I do not accept that explanation. The affidavit says that:
When Mr Holcombe and I separated on 14 November 2016 I believe we had a combined net assets of approximately $1,000,000 comprising:
…
d.Cash held by me in a personal Commonwealth Bank of Australia bank account of approximately $20,000[.]
The wife was then asked whether she was saying that she did in fact have $75,000 in the bank at the time of separation. She said, no, it was about $60,000. When shown a page of a bank statement, showing the $75,000 in the account as at 4 November 2016 and 22 November 2016, with no other entry in between, the wife said that the page did not show that it was her account, as it did not have her name on it. She was then shown the previous page of the bank statement, which had her name on it and the corresponding account number. She then conceded that it was her bank statement.
The wife’s unwillingness to make a reasonable concession about this matter, and her completely implausible claim that she did not understand that her lawyers were asking her about the amount she had in the bank at the time of separation, cast considerable doubt on her credibility.
The wife was then asked about her gambling at the Town A Club. She conceded that she had withdrawn amounts totalling $5,000 from an auto bank at the Town A Club, and conceded that she had gambled there. However, when asked whether she had spent $5,000 gambling at the Town A Club, she said:
Well, I can’t see anything in front of me …
By that, the wife was saying that she would not concede that she had spent $5,000 on gambling at Town A Club because she had not been shown a document that proved it. When asked again whether she had spent $5,000 gambling at the Town A Club, she said that, just because she had withdrawn $5,000 at the Town A Club, it did not mean that she had spent $5,000 on gambling at that venue. When asked the question again, she finally admitted that she had spent $5,000 gambling at the Town A Club.
The wife was then asked about the period during which she had spent $5,000 gambling at the Town A Club. It was put to her that she had spent $5,000 gambling at Town A Club between October 2017 and January 2018. The wife denied that, saying she might have spent some of the $5,000 on other things. However, eventually, and after further prevarication, the wife said that she might have spent $5,000 gambling at the Town A Club over the period that had been discussed. That period was described in questioning as a period of five months, but it was actually a period of four months.
The wife then conceded that, from the date of separation, which was 14 November 2016, she gambled every month. She said she gambled $50, $100, or $200 per month. When it was pointed out that she had just agreed that she had gambled $5,000 in five months, which works out to $1,000 per month, she said that she was confused. She then said sometimes she did not gamble for six or eight months, even though she had said a minute earlier that she had gambled every month. She said that she had not gambled since late 2017, even though her bank statements showed that she withdrew substantial amounts from the auto bank at the Town A Club in … 2018. The wife said that some of those withdrawals were simply to have some cash.
The wife was asked if she gambled at the Suburb F Club. She evaded the question, and said she had been there many times. When asked again if she gambled there, she said, possibly. She later agreed that she would have gambled there in 2017.
The wife’s prevarication about her gambling, and her unwillingness to make reasonable admissions unless shown a document proving the point cast doubt on her credibility as a witness.
The wife said in an agreed list of assets and liabilities that she had superannuation with the ANZ of $700. She was shown a document from Super Fund BB, showing that she had superannuation with that entity of $1,268.13 as at 30 June 2016. The wife agreed that the $700 was in addition to the $1,268.13. However, she then claimed that the $1,268.13 would have been reduced by fees. When it was pointed out that interest would have increased the balance, she said she had no idea. The wife said she had just seen the statement from Super Fund BB, otherwise she would have disclosed it. When it was pointed out that Super Fund BB was part of Colonial Mutual, the wife said that the $1,268.13 could have been her ANZ fund. That is not correct. Colonial Mutual is part of the CBA, not the ANZ.
The wife’s non-disclosure of her Super Fund BB superannuation, her claim that the figure from 2016 would have been reduced by fees rather than increased by interest, and her claim that the $1,268.13 was actually her ANZ superannuation suggests that the wife was not an entirely honest witness, and would say whatever she could think of to bolster her position, regardless of its truth.
The wife said in her affidavit and in her case outline that the husband received about $400,000 as a payout of his superannuation because he was totally and permanently disabled. In cross-examination, the wife conceded, when shown the documents, that he had actually received about $446,000. In the context of this case, the $46,000 difference is a significant understatement on the wife’s part. This is also reflective of the wife being less than honest with the court.
The wife was asked whether she sent the husband some particularly intimate text messages after separation, including about 63 messages in one day, with the messages continuing for months. In the messages, the wife basically begged the husband to return to her bed.
The wife conceded that she had sent the messages but was most resistant to conceding that she sent them after separation. She said that there was no date on the messages as exhibited to the husband’s affidavit, so she said her concession that she had sent them did not mean that she sent them after separation. When pressed about the timing, she said that there were no dates on the texts and she did not recall sending them. When pressed again, she said that she would have to look at each message, and implied that looking at each message was an impossible task.
After being given time to look at the messages, the wife said twice that she had sent them before separation, and reiterated that there were no dates on the messages. The husband then produced his mobile telephone, which showed the dates when the messages were sent. After being shown the telephone, the wife eventually conceded that she had sent the messages after separation.
In this exchange, the wife was not concerned to tell the court the truth. She was trying to say what she believed would better assist her case or cast her in a better light. The exchange casts serious doubt on the wife’s credibility.
It was also put to the wife that, on a particular occasion shortly after separation, she went to the husband’s house in Suburb D and had to be removed by the police. She said that she was not removed. She said that the police made it clear that one of them had to leave because of previous violence, so she left. The wife did concede that the police were in attendance.
I consider that, in all probability, the police persuaded the wife to leave. In that sense, the police did remove the wife from the husband’s property, although they did not have to physically restrain her to do so. Again, the wife was not entirely frank with the court, and tailored her evidence to appear in a better light.
Having said that, the wife did concede that she went to the husband’s property in Suburb D numerous times after separation, without the benefit of a court order, to collect her things. She also conceded that, on those occasions, things got heated.
It was also put to the wife that she had falsely said on her marriage certificate that her father was unknown. She said to the court explicitly that she did not know her father. However, she later conceded that he had lived with her mother and herself until she was two years old, and that she knew his name was Mr G or Mr G. She said that she had not been sure which version of his name was correct, so the priest just wrote down “unknown” on the marriage certificate. Basically, the wife was trying to blame the priest for not having her father’s name on her marriage certificate. There is a world of difference between “unknown” and “Mr G”, even if his actual given name was Mr G or Mr G. I consider this was another example of the wife being economical with the truth.
All in all, I consider that the wife was not an entirely honest witness. However, I consider that she was significantly less dishonest than the husband, for the reasons which follow.
The husband was selective in the evidence that he gave the court. For example, he provided a copy of an intervention order, showing that it had been withdrawn by the wife. However, he failed to provide a copy of the intervention order that was made against him for five years, even though he conceded that he had a copy of it when he swore the relevant affidavit. In doing so, the husband sought to give a false impression to the court.
The husband also said in an affidavit that he had been on a disability support pension for seven years, that is, since 2012. However, he conceded in cross-examination that was not true, and he was in fact on Newstart at the commencement of the relationship in 2014. I consider that the husband gave that false evidence to make him appear less physically capable than he actually is.
The husband also said that he was majorly disadvantaged by the wife in his AAT case and basically blamed her for losing that case. He said that she attended the hearing, and had to be removed by security because she was behaving badly. The wife said she attended to take notes for the present proceeding, but the Tribunal member was concerned about the intervention order between the parties. The parties agreed that security was called, and the wife did leave the hearing. The husband eventually conceded that she left on the first day of a four day hearing.
Contrary to the husband’s claim that the wife was significantly responsible for him losing the AAT case, the AAT explained its reasons for the husband losing the case in a decision produced by the wife. Those reasons included that:
a)the husband contradicted aspects of his own evidence;
b)other witnesses contradicted his evidence;
c)the applicant’s demeanour in the witness box was characterised by a reluctance to make reasonable concessions;
d)he was deliberately evasive in answer to questions;
e)aspects of his evidence were implausible;
f)overall, he was an unreliable witness;
g)expert evidence was to the effect that an accident which the husband said injured his eye could not have happened as the husband alleged; and
h)expert evidence was to the effect that the husband’s eye problem was congenital rather than the result of the alleged accident.
In my view, the husband was dishonest with this court when claiming that he was majorly disadvantaged by the wife in his AAT case. The AAT had ample reasons to dismiss his case without any contribution by the wife. He appears to have made a fraudulent claim to the AAT for compensation.
It was also put to the husband that he lied to the court about the stock that was left over from Business A when the wife relinquished that business. It was put that he had said that all of the stock went to the wife in Business A and none of it went to his house in Suburb D. I have been unable to find that in the transcript. The topic was discussed at page 18, line 44 of the transcript of 2 May 2019, but the husband did not say at that point that he had never had any stock at Suburb D. However, the husband said in an affidavit that:
When it was closed the stock left was $20,000, Ms Holcombe’s has all the stock from her business, it was placed in the front bedroom. Ms Holcombe picked up all the sock that was in my property in Suburb D. The police were present when she picked it up.
(errors in original)
Clearly, the husband acknowledged in his affidavit that some of the stock was for a period of time at his house in Suburb D, but he claimed that the wife collected it, so, ultimately, she had all the stock. I am not persuaded that the husband lied to the court by saying none of the stock was ever at his house in Suburb D. However, as discussed below, I do consider that he kept some of the stock from the business and sold it for his living expenses.
It was also put to the husband that he had lied in an affidavit where he said he paid $66,000 for a Motor Vehicle H with the registration …. He said that the price in his affidavit was a typographical error and he had actually paid $56,000 for the car. When the husband claimed he had traded in a Motor Vehicle V, for which he received $33,500, it was put to the husband that the invoice for the car did not mention a trade-in. However, the husband produced the contract, which showed a trade-in of $33,500, leaving a balance payable of $25,250. Consequently, I accept that the husband told the truth about the trade-in. I also accept that his original claim that he paid $66,000 for the car was a typographical error.

The husband agreed in cross-examination that he advertised his business, Business J, for sale, and said in the advertisement that it had a turnover of over $100,000 per year. However, he said in cross-examination that, when he ran Business J, it never had a turnover at that level, but that if it had been well run, it hopefully would have. He said his father told him to put that turnover figure in the advertisement. He denied that the advertisement was misleading and deceptive. I consider that the advertisement was misleading and deceptive, and tends to suggest that the husband was a dishonest businessman, and, quite possibly, a dishonest witness.
The husband exhibited a receipt saying that he had received $11,000 for the sale of Business J on … 2018. He agreed that he had no further financial obligations in relation to Business J after that date. However, on 12 June 2018, the husband filed a financial statement indicating that he was paying $700 per week rent for Business J. The husband said that the financial statement was sworn on 31 March 2018, and it was accurate when he swore it. He conceded that it was not accurate when he filed it on 12 June 2018. By filing a financial statement that was not accurate at the time of filing, the husband attempted to mislead the court.
The husband conceded in cross-examination that he had sold a watch on … 2017 for $8,000. However, the sale was not disclosed in Part M of his financial statement filed on 6 November 2017, which asked him to identify any property disposed of since separation. When asked about this, the husband said that his then lawyer had not disclosed the sale. This is a wholly inadequate excuse. The husband was the one who swore the financial statement. It was his obligation to ensure the accuracy of it before swearing it. His failure to do so, and his attempt to blame his lawyer for it, reflects poorly on his credibility.
The husband also agreed in cross-examination that he had omitted from that financial statement the fact that, since separation, he had sold a caravan for $4,500. He said he omitted it because the wife already knew about it, and later said he had omitted it because it was a small item compared with other items, and later said, since separation, he was a free man. These explanations are wholly inadequate, and indicate that the husband did not tell the court the truth about what items he had sold since separation. This suggests that the husband was disinclined to tell the court the truth generally.
The husband was asked in cross-examination if he had ever had an interest in a shop in Country W. He categorically said no. He later said that he had paid for some products in Country W, and had given the salespeople about $400, as they had become friends, and acted as his tour guides. When asked if he had been a half-owner in a business in Country W, he said, not officially. However, the wife produced a Facebook post, which the husband conceded he had posted, in which he said:
So it’s official…! [Three wink emojis.] I’m now ½ owner of a business in Country W. also a owner of a business here too… so let fun begin.
(errors in original)
The husband said that post was a joke. The husband was asked about another Facebook post in which he said:
I hired a shop manager to overlook everything and I’ll be setting up CCTV so I can see all on me phone when I’m home….
The husband accepted that he had posted that message. He also agreed that he had posted a message saying that he was putting up pictures at the shop. However, he said it was “for them”. The husband was also asked about a post saying:
… It cost me around 8K up to now. That’s a year[’s] rent the reno all the stuff et cetera. …
The husband reiterated that the whole thing was a joke. He conceded that he put a post on Facebook saying:
Who’s the rat telling my ex-wife what’s on [Facebook]?
The husband’s claim that his Facebook posts about buying an interest in a business in Country W were a joke is completely implausible. I consider that the husband did pay $8,000 for an interest in a business in Country W, and that he lied to the court when he said he did not. I consider that the husband lied about that fact to conceal the true state of his expenditure and assets.
When asked whether his partner, Ms K, had sold things online on his behalf, the husband initially said no, but when pressed said she had sold two or three things on his behalf. When asked whether Ms K had bought things online on his behalf, he initially said no, but later admitted that he had used her eBay account to buy things, including a tractor for $8,000. Again, the husband seemed to only tell the truth about matters which might have undermined his case when he was pressed very hard in cross-examination.
When presented with a list of vehicles his partner had sold on eBay under the name Ms K, the husband said that only three vehicles on that list were his, and the others belonged to his friends and relations. The husband said that a Motor Vehicle Z had been stolen from him by his uncle in 2017 and the uncle had then disappeared with the car. (This was an uncle who had previously been accommodated by the husband when the uncle needed a home after getting out of jail.) However, the husband then conceded that he had tried to sell the Motor Vehicle Z in 2018, and a person had agreed to buy it, but reneged on the sale when he looked at the car and found that the roof would not open. The husband’s claims that other people owned the cars and his uncle stole the Motor Vehicle Z and never returned it, particularly in the context of the husband’s demonstrated dishonesty to the court, are completely unbelievable.
In an affidavit sworn on 6 December 2017, the husband said that his new partner bought a tractor for him. However, in cross-examination, he agreed that was not true, and, in fact, he had bought the tractor for himself using his partner’s eBay account with money from his own bank account. Again, the husband was revealed to have made a false statement to the court, to further his own interests.
The wife provided to the court hundreds of pages of advertisements for the sale of vehicles and other items which she said had been posted for or on behalf of the husband. The husband, after being pressed, agreed that he had advertised goods under various names, or his associates had on his behalf. It was put to him that he had sold over 50 vehicles since separation. He denied that, saying some of the items actually belonged to other associates, and some he still had. He said that, since separation, he bought and sold about six vehicles.
I do not accept the husband’s evidence about the purchase and sale of vehicles. He is obviously very slippery. It seems to me to be much more likely that the husband did buy and sell about 50 vehicles after separation. However, unfortunately, it was not put to the husband that he had made any particular amount of profit from those sales, or that he had hidden a quantity of money somewhere. The husband maintained that any items he bought and sold were just for ordinary living expenses. I am inclined to believe that is true, and consider that he was probably supplementing his disability pension with the buying and selling of goods. How much he made cannot be assessed with any confidence or precision on the evidence before me.
The husband initially said that he spent about $20 per week on gambling, but later said he might have spent $100 per week on gambling at the end of 2016. However, his bank statement shows withdrawals of $800 on one day, being … 2016, in four withdrawals of $200. I consider that the husband greatly understated the level of his gambling.
The husband cried poor, but admitted in cross examination that he had a motor bike worth $17,000 that he was not allowed to drive on public roads because his eyesight is so poor. He said a friend was allowed to ride a motor bike on a private raceway three times a year and he had invited the husband to join him. He then claimed, contrary to what he had said 30 seconds earlier, that he was allowed to ride the motor bike on public roads although he was 47% blind. I do not accept that. I prefer the husband’s original evidence that he is not allowed to ride a motor bike on a public road.
The $17,000 value that the husband placed on the motorbike in his oral evidence is more than the amount the parties agreed it was worth. However, even if the motorbike was only worth $10,000, it is inconceivable that a person who is struggling financially, as the husband claimed to be, would retain a motor bike worth $10,000 so he could possibly ride it three times a year on a private track. Even if the husband could ride the motor bike on public roads, a $10,000 motor bike is an extravagance for someone who has a car, and who claims to be in a parlous financial situation. I consider that the likelihood is that the husband is making a reasonable amount of money from his buying and selling of cars and other items on the internet and from his farm, which he sometimes described as a veggie patch.
The husband claimed that he was so disabled that the wife, and now his new partner, is entitled to a carer’s allowance to look after him and that he is entitled to a disability pension. However, he also claimed that he climbed on the rooves of the wife’s properties to clean the gutters, did house painting, stripped wallpaper and so on. I accept that the husband did that work. However, it begs the question of whether he was actually entitled to a disability pension at any time.
All in all, I consider that the husband was not a witness of truth. He also failed to disclose his online purchases and sales, notwithstanding an order requiring full disclosure. This will be taken into account in determining the eventual settlement.

Whether the parties have separated

The parties agreed that they had separated.

The assets and liabilities

The parties agreed that their joint assets consisted of $40,215.79 held on trust by Mills Oakley from the sale of the husband’s property in Suburb D.
The parties agreed that they had no joint liabilities at the time of trial.
Therefore, the parties’ total joint assets less liabilities at the time of trial amounted to $40,215.79.
The parties agreed that the wife’s individual assets at the time of trial included:
a)a property in Town A, valued at $500,000;
b)a Motor Vehicle AA valued at $8,000;
c)$12,435.52, being the proceeds of the sale of the wife’s property at Town M, which are presently held on trust by Nevett Ford (Melbourne);
d)engagement and wedding rings valued at $2,300;
e)a scooter valued at $300; and
f)a ride-on mower valued at $400.
However, the husband argued that, in addition, the wife has in her possession:
a)a trailer;
b)some of the husband’s tools worth $2,000; and
c)a dirt bike worth $1,000.
The wife said that she sold the trailer for $300 in 2017. It was implicit in the wife’s evidence that she had spent the $300. She denied that she had any of the husband’s tools. She denied that she had the dirt bike. I accept her evidence on these issues.
Therefore, I accept that the wife’s individual assets amounted to $523,435.52 at the time of trial.
The parties agreed that the wife had no liabilities, save for legal fees incurred as a result of these proceedings, which I disregard in accordance with the usual principles.
Therefore, the wife’s total individual assets less liabilities amounted to $523,435.52 at the time of trial.
The parties agreed that the wife’s superannuation, which is with ANZ and Super Fund BB, amounted to $1,968.13.
Therefore, the wife’s total individual assets less liabilities plus superannuation amounted to $525, 403.65.
The parties agreed that the husband’s individual assets at the time of trial included:
a)the property at B Street, Suburb C, South Australia, valued at $190,000;
b)the vacant land at Town CC, Victoria valued at $20,000;
c)a Motor Vehicle H valued at $32,000;
d)a motorbike and scooters valued at $15,000;
e)a boat valued at $7,000;
f)a metal detector valued at $3,000;
g)a gold chain valued at $1,600;
h)diamond earrings valued at $600;
i)a gold bracelet valued at $700;
j)tools valued at $400;
k)a generator valued at $150;
l)a trailer valued at $350;
m)a Motor Vehicle DD valued at $1,500;
n)a Motor Vehicle EE valued at $3,000;
o)a Motor Vehicle N valued at $1,000;
p)a box trailer valued at $300;
q)spotlights valued at $150;
r)nail guns valued at $150;
s)a ride-on mower valued at $2,200;
t)a Motor Vehicle O valued at $9,000;
u)camping equipment valued at $300;
v)a gold fob watch chain valued at $150;
w)a hot box bain marie valued at $500; and
x)cash at bank, consisting of $281.52.
Therefore, the husband’s agreed total individual assets amounted to $289,331.52.
However, the wife said that, in addition, the husband had at the time of trial various items, most of which he had offered for sale online, namely:
a)a Motor Vehicle Z worth $3,500;
b)a Motor Vehicle H worth $1,150;
c)a Motor Vehicle O worth $15,000;
d)other cars worth $48,000;
e)a caravan worth $1,000;
f)a caravan worth $2,500; and
g)stock from the wife’s Business A worth $30,000.
The husband said that:
a)the Motor Vehicle Z is missing with his uncle and, in any event, it is only worth $1,000;
b)the Motor Vehicle H belonged to his step-son, and has been sold;
c)the Motor Vehicle O is his father’s, and the husband is selling it on his father’s behalf;
d)he has no cars other than those in the agreed list set out above;
e)he sold the caravan in … 2016 and it was worth $1,000;
f)he sold the caravan in 2017 or 2018 and it was worth $2,500; and
g)he has no stock from the business as it is all in the wife’s front room.
As discussed earlier, I consider that the husband is not a witness of truth. While the wife was not an ideal witness, I consider that she was considerably more credible than the husband. In addition, it is clear that the husband has not disclosed all of his assets and business dealings. In particular, he failed to comply with an order that required him to disclose the details of his online trading and the proceeds of his farm, which he disingenuously refers to as a veggie patch. The husband’s non-disclosure, on any view, was deliberate. Consequently, the rule in the Full Family Court’s decision in In the Marriage of Weir, Re 110 FLR 403; 16 Fam LR 154; [1993] FLC 92-338 applies.
32.This Court has pointed out in a line of cases leading up to the recent decision of the Full Court in Black and Kellner (1992) FLC 92-287, that it is the duty of a party involved in property proceedings in this jurisdiction to make a full disclosure of their financial affairs. See also Giunti and Giunti [1986] FamCa 1; (1986) FLC 91-757, and Muzzacappa and Muzzacappa [1987] FamCA 20;(1987) 11 FamLR 957. It is clear enough from his Honour's findings in the present case that the husband had not done so and had in fact pocketed the proceeds of a substantial number of cash sales. It is obvious that in most cases of this nature it is difficult enough for the other party to establish that fact let alone establish the quantum of what has been taken.
33.It seems to us that once it has been established that there has been a deliberate non disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
34.It is true that in the case of Monte and Monte (1986) FLC 91-751, the Full Court said that to found jurisdiction under s79 in relation to property other than that which had been identified, the trial judge was obliged to make a finding as to the existence and value of other undisclosed property, even though the unsatisfactory nature of the evidence made it necessary to express that finding in the most general terms both as to identity and value.
35.We confess to some difficulty with this proposition. We should have thought that the Court's jurisdiction to make an order going beyond the identified property arises once there is sufficient evidence to support a finding that the party has not made a full disclosure of his or her assets.
36.The difficulty then arises as to what order should be made. However we are troubled by the proposition which seems to arise from Monte and Monte that if a party is either cunning enough or vague enough to cover his or her tracks sufficiently to prevent a Court making a finding as to the amount that has not been disclosed, then the other party fails. We do not believe this to be the law and insofar as the decision in Monte and Monte supports such a proposition, we do not believe that it should be followed.
…
41.In this case, we think that it is possible for this Court to make an assessment, using Mr Calabro's evidence to set some limit upon the amount removed by the husband.
Applying Weir to the present case, the husband’s non-disclosure permits the court to take a robust approach to the asset pool. Although the evidence does not permit the court to make an assessment of the husband’s assets at the time of trial based on precise evidence, it is open to the court to make its best estimate of the husband’s assets based on its overall assessment of the parties’ credibility and its understanding of how people behave and how people conduct their financial affairs.
On these bases, I consider that:
a)the husband still has the Motor Vehicle Z and that it is worth about $3,500;
b)the husband has sold the Motor Vehicle H for about $1,150 and used the proceeds of sale for living expenses;
c)the husband still has the Motor Vehicle O, which belongs to him, and it is worth about $15,000;
d)the husband sold the caravan for about $1,000 and used the proceeds of sale for living expenses; and
e)the husband sold the caravan for $2,500 and used the proceeds of sale for living expenses.
In relation to the stock from the Business A, I consider that some of it was taken to the husband’s property in Suburb D, and of that stock, some was returned to the wife. However, I consider that the husband retained some of the stock that went to Suburb D, and he has sold it and used the proceeds of sale for living expenses.
In relation to the additional cars that the wife said were worth $48,000, the basis of the wife’s claim was online advertisements posted by or on behalf of the husband. Obviously, the husband was trying to sell them. It is by no means clear that he still has any of them. However, it is in the nature of the husband’s business of the online sale of vehicles that he would have a constant turnover of vehicles, whereby he would buy a vehicle at one price and try to sell it at a higher price. In these circumstances, it is fair to assume that the husband would have an ever changing stock of vehicles, and had such a stock at the time of trial.
There is minimal evidence on which the court could attribute a value to the additional cars. Without doing a thorough audit of the evidence provided by the wife to ascertain which vehicles were on hand at a given time, and without sworn valuations, it is not possible to determine the value of the additional cars at the time of trial. However, doing my best, I would say that the husband had a stock of vehicles worth about $25,000 at the time of trial.

The wife did not allege that the husband had an interest in the business in Country W at the time of trial, so I will leave that matter to one side.
This means that, in addition to the husband’s agreed assets worth $289,331.52, the husband had at the time of trial a Motor Vehicle Z worth $3,500, a Motor Vehicle O worth $15,000, and additional vehicles worth about $25,000. That means that the husband’s total assets at the time of trial were worth $332,831.52.
The parties agreed that the husband’s individual liabilities at the time of trial were as follows:
a)a mortgage secured over the B Street, Suburb C property of $86,000;
b)outstanding electricity bills of $9,296.53; and
c)outstanding rates and water bills of $629.85.
The husband’s total agreed individual liabilities amounted to $95,926.38.
The husband’s total assets less liabilities amounted to $236,905.14.
The parties agreed that the husband has no superannuation.
Therefore, the parties’ total combined assets less liabilities plus superannuation amounted to $802,524.58.
Consequently, the wife presently holds about 65% of the parties’ combined assets.

Contributions

a. Initial contributions

The husband and wife commenced cohabitation on 1 July 2014. At that time, it was agreed that the wife had received payments in connection with her injury of $562,441. The details are as follows:
a)on … 2013, the wife received a payout from Super Fund FF of $129,453, on account of her work injury;
b)on … 2014, the wife received a payout from Super Fund Q of $286,029, on account of her work injury;
c)on … 2014, the wife received a payout from Super Fund R of $140,844, on account of her work injury;
d)on … 2014, the wife received a back payment from Centrelink of $6,115.
The wife claimed that she had at least $560,000 in the bank at the commencement of cohabitation. The husband said he never saw any evidence that the wife had that amount of money, but he did seem to accept that the wife had at least $500,000 in the bank at the commencement of cohabitation.
The wife exhibited a bank statement as annexure A to her trial affidavit which she said proved that she had $560,000 in the bank as at the date of cohabitation. However, that bank statement does not cover … 2014, as the relevant page, page 6, is missing, as are all the other even numbered pages from statement 34. The last entry on page 5 shows a credit balance of about $7,500, and the first entry on page 7 shows a credit balance of about $4,000. A complete copy of the same bank statement is at annexure C to the wife’s trial affidavit. It shows a credit balance of $5,107.52 on … 2014. Consequently, I am not persuaded that the wife did have at least $560,000 in the bank as at the date of cohabitation.
Indeed, it would be surprising if she did, as she had received the first payment of about $130,000 over a year earlier, and had presumably spent some of it. That seems particularly likely as the back pay she received from Centrelink on … 2014 suggests that she was underpaid by Centrelink in the period prior to cohabitation.
Nevertheless, in view of the husband’s apparent concession that the wife had about $500,000 as at the date of cohabitation, and as that seems plausible, given the amount she had received, I proceed on the basis that the wife had about $500,000 in the bank at the time of cohabitation.
The parties agreed that the husband’s initial contributions consisted of:
a)a house in Town GG which he had sold at the time of the commencement of the cohabitation and from which he received proceeds of sale of $35,000;
b)a car worth $3,000; and
c)a truck worth $1,000.
That makes a total of $39,000 as the husband’s initial contributions and $500,000 as the wife’s initial contributions.
I also note at this point that the husband said that he only discovered that the wife had $500,000 after his relationship with the wife had commenced. I have some doubts about that, but it was not put to the husband that he had a relationship with the wife purely to get her money, so I take that matter no further. However, I do note that, shortly after the wedding, the husband, on his own admission, told the wife that, as they were now married, he was entitled to half of her money and assets.

b. Contributions during the relationship

The parties agreed that, after cohabitation commenced on … 2014, the wife received payments relating to her injury totalling $327,558.73, the detail of which is as follows:
a)on … 2014, the wife received a common law payout for her workplace injury of $267,983.79;
b)on … 2015, the wife received a $33,576.05 refund from Medicare/Centrelink as a result of the common law claim;
c)on … 2015[1], the wife received $20,032 from Super Fund S;
d)on … 2015[2], the wife received $3,854 from Super Fund S, for her workplace injury; and
e)on … 2015, the wife received $2,112.89 from the ATO by way of a refund relating to workplace injury payments.
[1] The parties agreed that this payment was received on … 2014, but, from the wife’s trial affidavit, it seems to have been received on … 2015.
[2] The parties agreed that this payment was received on … 2014, but, from the wife’s trial affidavit, it seems to have been received on … 2015.
In … 2014, the wife bought, unencumbered, the property in Town A. The purchase price was not provided in the evidence before the court, but the Town A property is now agreed to be worth $500,000, so it probably cost about $400,000 in … 2015. The parties lived at the wife’s Town A property for most of their relationship.
In … 2014, the wife purchased a rental property in T Street, Town M, Victoria for $85,000 with a deposit of $20,000 from her own funds and a CBA loan of $65,000. She sold it in … 2016 and received proceeds of sale of $33,000.
In … 2014, the wife purchased another rental property in L Street, Town M, Victoria for $50,000, with $10,000 of her own funds and a CBA loan of $40,000. That property has been sold, and the proceeds of sale, being $12,435.52, are held by the wife’s lawyers, Nevett Ford (Melbourne).
In … 2015, the wife bought a business in Town A for $50,000, on the basis that the business was conducted in a shop owned by someone else, and the business was that person’s tenant. The wife relinquished the business in … 2016. That is, after keeping the business for a little over a year, she was unable to sell it, and essentially lost the $50,000 she had paid for it. Whether the wife made any money week to week from the business is unclear from the evidence, but it seems unlikely. Consequently, the wife’s investment in the business could be regarded as wastage.
The parties agreed that the wife received a carer’s pension of $500 per week for the entirety of the relationship on the basis that she was the husband’s carer.
The wife conceded in cross-examination that the parties bought, for her benefit, a Motor Vehicle AA in … 2016 for $17,000, with the wife contributing $5,000 and the husband contributing $12,000.
The wife claimed, and the husband did not dispute, that she cooked and cleaned for the parties. The wife also claimed that she maintained the properties. The husband disputed that, at least to the extent that he said that he painted the wife’s houses, removed wallpaper, cleaned gutters and so on. I found the husband’s evidence about these matters to be convincing. I do wonder, however, how he could have qualified for a disability pension if he was able to do such work.
The parties agreed that the husband’s contributions during the relationship included:
a)the husband receiving a disability support pension of $690 per fortnight;
b)the husband receiving a superannuation total permanent disability payout of $90,000 in … 2016 and just under $356,000 in … 2016, making a total of $446,000; and
c)in … 2016, the husband buying an unencumbered property in Suburb D for $297,000.
The husband alleged that the wife spent $20,000 on lap band surgery. The wife agreed that she had that surgery, but said the costs were mostly covered by health insurance and she was only $1,800 out of pocket. I accept that evidence.
The husband also alleged that the wife gave her brother two cars worth $4,000 in total and $10,000 cash to enable him to install air conditioning. The wife conceded in cross-examination that she gave her brother, Mr HH, a car worth $500 and later $3,000 to buy another car. She denied that she gave him $10,000 to install air conditioning. I accept the husband’s claims about these matters. The wife’s denial of giving her brother cash is consistent with her denials of anything that was put to her unless hard evidence was presented to her.
The husband also alleged that the wife spent $80,000 on what he described as her wedding. Obviously, it was his wedding as well. The wife said that she spent $65,000 on the wedding, including the dress. I accept the wife’s evidence on this point. The husband seemed to consider that the cost of the wedding was extravagant, and it probably was. However, that was something he should have worked out with the wife at the time. It does not sit well for him to complain about it now.
The husband alleged that he ‘did up’ the Town A property, including by spending at least $10,000 to $15,000 on renovations, painting, building two new sheds, landscaping, and maintenance. The wife denied this and said that she conducted repairs and maintenance and that the husband did not meaningfully improve the property. I prefer the husband’s evidence on this point, except that I do not accept that he spent his own money on the Town A property, due to his general dishonesty.
The husband also claimed that he spent at least $5,000 on the wife’s two houses in Town M. I do not accept that claim for the same reason.
The husband spent $8,000 on a watch. He claims that he has sold it, and put the proceeds into his Suburb C property. I accept that evidence, albeit with some hesitation.
The wife alleged that she contributed to the maintenance and development of the Suburb D property which was solely in the husband’s name. She said that she paid for food, bills and the maintenance of the Suburb D property, as well as for furnishing it. The husband denied that and said that he had paid for it all, and that the wife had only bought dinner occasionally and helped out a bit. The wife conceded that the husband had an invoice in his name for the carpet at the Suburb D property for $1,800. However, the wife said that she paid the husband $1,000 cash for the carpet. She produced no evidence of withdrawing that amount from the bank at that time, or any other explanation of how she would have had $1,000 in cash.
I prefer the husband’s evidence on this issue. The husband moved to the Suburb D property while the parties were temporarily separated. It makes sense that the husband would have furnished it. The wife spent some time at the Suburb D property after the parties temporarily reconciled. However, it seems to me to be unlikely that she would have done much more than buy the occasional dinner. I also note that, as the wife would not concede anything unless documentary evidence was put to her, it is inconsistent of her to expect the court to accept her claims when they are not supported by documentary evidence.
The wife alleged that the husband had access to her money and used it to buy and sell cars, and buy the shop in Country W. The husband denied this, saying that he did not buy a business in Country W and he did not have access to the wife’s bank accounts. However, he said that sometimes the wife would give him her credit card to use for a particular purpose. Inconsistently with her own claims, the wife said in re-examination that the husband used his $90,000 total and permanent disability payment to buy the business in Country W, and cars, and motorbikes, and also used it to gamble.
As discussed above, I accept that the husband did buy a share of a business in Country W. However, I am not persuaded that the husband used the wife’s funds to do so, or to buy cars and so on. At the time of the purchase of the Country W property, the husband had received his own payout, he had funds available after he had bought the Suburb D property, and, on the evidence, it seems more likely that he spent his own money on the business and the other items that he bought. The husband did not claim to still own the business, so I conclude that he lost the money he invested in it. Significantly, the wife conceded that the husband contributed $12,000 of his own money to her Motor Vehicle AA.
The wife gave a good deal of evidence about family violence. However, no Kennon argument was advanced, although the wife was legally represented. Specifically, the wife did not argue that the violence should be taken into account in assessing contributions. In the circumstances, I take the issue of family violence no further.

c. Contributions post separation

Following separation on 14 November 2016, the wife ceased to receive the carer’s pension, and began to receive Newstart. She received the disability pension instead from April 2019.
Following separation, the wife has maintained the Town A property. The parties agreed that, post separation, the wife spent $12,000 on house maintenance. That was a reasonable expenditure to preserve the value of the asset.
The wife conceded in cross-examination that she had a trip to Country JJ for five weeks in 2017. It was unclear how much the trip cost.
The wife’s bank accounts show that she had $75,000 at separation, which she no longer has. She presumably spent a substantial part of the funds she had at separation on her overseas trip. The husband alleged the wife spent $40,000 on the trip, although there was no evidence of that. I would estimate that she spent $20,000 on the trip.
The wife sold her property in L Street, Town M in February 2019. The wife no longer has the proceeds of sale. The wife said that, until the property was sold, she had received $140 per week rental and paid $120 per week for the mortgage and there were other expenses associated with owning the house so, in effect, she received no income from it. The husband doubted that the wife was paying $120 per week on the mortgage. However, there was no evidence to the contrary and I accept the wife’s claims about this.
The wife conceded in cross-examination that, following separation, she sold her Motor Vehicle U for $14,000. She said she put $13,000 in the bank and spent $1,000. At the time of trial, the wife no longer had the $13,000 in the bank, so she presumably spent that as well, possibly on legal fees.
The wife also conceded in cross-examination that, following separation, she sold her ute. She said that she sold it for $5,000. The husband put that the wife sold the ute at an undervalue, and implied it was worth $13,000. However, there was no evidence of its value, so I accept that the wife sold it for what it was worth. She said that she used the $5,000 for legal fees.
The wife also said that she sold her Motor Vehicle T for $7,000. She said she used some of that money for bills and some for legal fees.
The wife said that she had spent amounts totalling $55,000 on legal fees.
As previously discussed, both parties have spent money post separation on gambling. There is insufficient evidence before the court to properly quantify either party’s level of gambling, though the wife did concede that she spent $5,000 on gambling over a four month period. I consider that each party’s gambling cancels out the other’s.
In mid-2017, the husband sold his unencumbered property in Suburb D for $376,000. The husband said, and I accept, that the proceeds of sale were $348,000, of which he received $248,000 and $100,000 was placed on trust with the wife’s former solicitors, Mills Oakley.
Pursuant to orders made on 6 October 2017, to pay their legal costs, each party was to receive a part property settlement of up to $30,000 upon presentation of a solicitor’s invoice. The wife received her $30,000, but the husband did not receive his, because he did not present a solicitor’s invoice. The orders of 6 October 2017 were discharged by the final consent orders made on 13 December 2017. However, by that time, the wife had already received $30,000. In any event, the final consent orders made on 13 December 2017 provided for the wife to receive $80,000 of the $100,000 held on trust by Mills Oakley, which included the $30,000 she had already received, and the husband to receive $20,000. However, those orders were set aside by consent on 19 March 2018. At that time, the husband had not received the $20,000 but the wife still had the $30,000 she had previously received, meaning there was $70,000 held by Mills Oakley. By orders made on 19 July 2018, each party received $15,000 by way of a part property settlement. There is now $40,000 remaining for the parties on trust with Mills Oakley. That firm claims a lien over the $40,000 for the wife’s legal costs. To this point, the wife has received $45,000 of the $100,000 fund, and the husband has received $15,000.
On … 2017, the husband purchased a block of land in Town CC, Victoria. It now has an agreed value of $20,000.
In … 2017, the husband purchased a property in B Street, Suburb C, South Australia, for $185,000, using his own funds and an $86,000 loan from the CBA. The total cost, including stamp duty and other costs, was $196,000. The husband has also spent $10,000 renovating that property.
On … 2017, the husband bought a Motor Vehicle H with the registration number … for $58,750, with a trade in of his ute for which he was credited $33,500, meaning he was out of pocket $25,250.
On … 2018, the husband purchased Business J in Suburb C, South Australia for $11,000. He sold it about one month later for the same price. The wife said, without any evidence, that the husband had retained the proceeds of the sale. However, it was not included in the agreed assets table, or in the disputed assets table, so I disregard it. I accept the husband’s evidence that used the money for general living expenses.
A large part of the wife’s case was that the husband bought and sold a large number of cars and other items, post separation, from which he derived a substantial income. The wife’s evidence largely consisted of advertisements placed by or on behalf of the husband on online trading forums. The husband had all manner of explanations for his apparent trading, which, overall, I reject.
It is obvious, from the evidence, that the husband has conducted a business of buying and selling goods online. He was ordered to disclose information about his online trading but did not do so. I have no hesitation, in the circumstances, in concluding that the husband has generated a good deal of money from his online trading.
In addition, the husband was required to disclose his income from his farm. I do not consider that he did so. I consider that he has generated a good deal of income from his farming activities, which, again, were undertaken notwithstanding that he is in receipt of a disability pension.
All in all, I consider that the husband, since separation, has not been impecunious and has not been dependent solely or substantially on the disability pension. Evidence in support of that is his purchase of a $58,000 car with the registration number …, albeit with a trade in.

The s.79(4)(d), (e), (f) and (g) and the s.75(2) factors

The wife is 42 years old and the husband is 39 years old. They are both on disability pensions. The husband conceded that the wife will be unable to work for the foreseeable future. The husband has limited eyesight, but the wife maintains that he earns considerably more than he has disclosed.
In his most recent financial statement, filed on 12 June 2018, the husband said that his only income is $330 per week from the disability pension. However, in his earlier financial statement filed on 6 November 2017, when he had a lawyer acting for him, the husband said he received $100 per week from his “home garden vegetable sales”. The husband did not explain why his second financial statement did not disclose any income from the vegetable sales.

In cross-examination, the husband conceded that he has a vegetable garden and fruit trees. He also conceded that he bought a tractor, so it can be understood that his farming activities are on a larger scale than a standard home vegetable patch.
The husband conceded in cross examination that he sold surplus fruit and vegetables. He said that he only received $100 per week from produce when it first came through. However, his first financial statement required him to state average weekly amounts. From that, I understand that he conceded in his first financial statement that he received, on average, $100 per week from the sale of produce, after costs, which works out to be $5,200 per year. I consider that is the minimum that the husband receives from the sale of vegetables.
The husband also conceded that he sold fruit from his trees and conceded that, in season, he might earn $100 per week from that source. He said he sold fruit for $10 for three kilograms. I find it hard to believe that he would only sell 10 bags of fruit a week when it was in season. I think it is more likely to be 100 bags, which would work out to be $1,000 per week for, perhaps, five weeks of the year, which would be another $5,000 of annual income received by the husband. I do not hesitate to make these findings in view of the husband’s serious non-disclosure and general dishonesty.
The wife produced a good deal of evidence, which I accept, that the husband buys and sells cars and other items on the internet. The scale of the husband’s online trading is obviously much greater than is explicable by disposing of surplus items. I have no hesitation in concluding that the husband is in receipt of substantially more income than the $330 per week from the disability pension that he disclosed in his most recent financial statement. I would estimate that his profit from his online trading would be at least $20,000 per year.
I also note the husband’s claim that he contributed substantially to the wife’s assets by painting her houses, removing wallpaper, landscaping, and cleaning gutters. If the husband is able to do that type of physically demanding work, as well as run his farm, I fail to see why he is not capable of obtaining a paying job. I consider that the husband would be well able to obtain unskilled employment whereby he would be able to earn upwards of $40,000 per year. In addition, I daresay he could continue to run his farm and online trading, giving him an income of about $70,000 per year.
As such, there is a substantial discrepancy in the earnings of the parties.
The property of the parties is discussed elsewhere in these reasons. They have no additional financial resources. There were no children of the marriage. The husband has a child, who is now 13 years old, for whom he pays $9 per week child support. The wife lives in an unencumbered property. The husband has a mortgage for which he pays $110 per week. He has a new partner and step-son, who he supports to some extent, though does not have a legal duty to do so. His new partner is also in receipt of social security benefits. A modest standard of living for each of the parties would be reasonable in all the circumstances. The marriage lasted about two and half years. The wife has a substantial debt for legal costs, which she says amounts to about $200,000.

Whether it is just and equitable to alter the parties’ property interests

The parties agreed that it would be just and equitable to alter their property interests in this case. In view of paragraph 42 of Stanford, the fact that the parties are no longer living in a marital relationship and the various findings made above in relation to contributions and future needs, I also consider that it would be just and equitable to alter the parties’ property interests in this case.

What order is just and equitable?

This is a very unfortunate case. The parties have received substantial amounts of money by reason of disability but, overall, have not invested that money wisely. While both parties bought some real estate, which they still have, they have both wasted a lot of money on items such as a second hand Motor Vehicle U, a shop and a watch, not to mention gambling. The wife received about $900,000 in payouts, but now has assets worth about $520,000. The husband received about $446,000 in payouts, but now has assets worth about $236,000. There is also the joint asset of about $40,000 plus interest in Mills Oakley’s trust account.
In any event, in terms of the payouts the parties received by reason of their disabilities, the wife contributed about 65% and the husband about 35% to the parties’ combined assets. The husband also had about $35,000 at the commencement of the relationship from his Town GG property.
The cost of the wedding, although substantial, was for their mutual benefit, so it should not be attributed to either party. The wife’s purchase of the business was unsuccessful. However, I do not consider it should be treated as wastage attributable to her. Both parties were involved in the business and it simply did not work out. Both parties gambled, and I assess the wastage involved in gambling as equal. The husband wasted $8,000 on the shop. The wife gave about $14,000 to her brother. Both parties wasted money on showy cars. The husband contributed $12,000 to the wife’s Motor Vehicle AA.
The wife has spent the $75,000, plus at least another $26,000, from the sale of the Motor Vehicle U, the ute and the Motor Vehicle T, that she had at the time of the parties’ separation. That makes a total of $101,000. She has also received from the $100,000 originally held by Mills Oakley, which was part of the proceeds of sale of the husband’s Suburb D property, sums totalling $45,000, while the husband has received $15,000.
At and following separation, the wife had $141,000. She said that she has spent $55,000 on legal fees, which leaves $86,000. The wife spent, on my estimate, $20,000 on an overseas trip post separation. That leaves about $66,000 which I assume that the wife has spent post separation on ordinary living expenses. The wife also said that she owes about $200,000 for legal expenses.
I consider that the wife did most of the cooking and cleaning, and the husband did some painting, wallpaper removal, landscaping and gutter cleaning during the relationship.
The wife has greater future needs than the husband because she is not able to work, and will be entirely dependent on social security benefits, while the husband is able to supplement his disability support pension with income from online trading and his vegetable farm, or, indeed, get a paying job.
In all these circumstances, I consider that it is just and equitable that the wife receives 71% of the parties’ combined assets including superannuation. The combined value of the parties’ assets plus superannuation is $802,524.58. Seventy-one per cent of that figure is the sum of $569,792.45. The wife already has in her possession items worth $525,403.65, being:
a)the property in Town A, valued at $500,000;
b)the Motor Vehicle AA valued at $8,000;
c)$12,435.52, being the proceeds of the sale of the wife’s property at Town M, which are presently held on trust by Nevett Ford (Melbourne);
d)engagement and wedding rings valued at $2,300;
e)a scooter valued at $300;
f)a ride-on mower valued at $400; and
g)her superannuation in the sum of $1,968.13.
That means the wife needs to receive an extra $44,388.80. To achieve that, the wife should receive the approximately $40,361[3] held by Mills Oakley, plus $4,027.80 from the husband. He will be required to pay that sum within 30 days.
[3] This figure includes interest.
The wife said that she sought 71% of the pool but also sought in her proposed orders a payment of $231,364.71. It was not explained to the court how the wife justified that figure. As indicated above, I do not consider it to be just and equitable that the husband pay the wife that sum.
I will direct the registrar to refer this matter to the Commonwealth Department of Human Services to investigate whether the husband has fraudulently obtained a disability support pension.

I certify that the preceding one hundred and seventy two (172) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 20 September 2019

[2019] FCCA 2669

20 September 2019

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Costs

Remedies

Constructive Trust

Fiduciary Duty