JANESE & SALIDA

[2020] FCCA 2361

FEDERAL CIRCUIT COURT OF AUSTRALIA

JANESE & SALIDA [2020] FCCA 2361

Catchwords:
FAMILY LAW – Property – only significant asset being matrimonial home – relationship lasting from 2002 until 2015 – 15 year old autistic son and 10 year old son living with the wife and spending little time with the husband – husband providing substantial deposit on purchase of matrimonial home in 2003 – whether wife squirrelled money away as husband suggested – whether wife’s mother provides substantial assistance as wife asserts – contribution assessed 55/45 in favour of the husband – future needs equal in all the circumstances.

Legislation:

Family Law Act 1975 (Cth), s.75(2)

Cases cited:

Stanford and Stanford (2012) 247 CLR 108

Applicant: MR JANESE

Respondent: MS SALIDA

File Number: DGC 753 of 2018

Judgment of: Judge Burchardt

Hearing dates: 23 & 24 July 2020

Date of Last Submission: 17 August 2020

Delivered at: Dandenong

Delivered on: 4 September 2020

REPRESENTATION

Counsel for the Applicant: Mr Devries

Solicitors for the Applicant: Gigliotti Lawyers

Counsel for the Respondent: Dr O'Brien

Solicitors for the Respondent: Macgregor Solicitors

ORDERS

1. The parties obtain a sworn valuation of the real property situate at and known as B Street, Suburb C in the State of Victoria (the “real property”) with D Real Estate within 14 days of this date with each party paying half of the cost of the valuation.

2. Within 75 days of date hereof (the “date):

   (a)the Wife pay to the Husband 55% of the amount of the valuation less the mortgage in the sum of $152,000 (the “payment”);

   (b)the Wife do all things necessary to have the Husband re-financed out of the liability for the mortgage of the real property; and

3. contemporaneously with compliance by the Wife of Order 2 a and b hereof, the parties do all acts and things necessary and sign all documents as may be required to transfer the real property to the Wife.

4. That in the event that the whole of the payment is not made and the Husband not re-financed out of the mortgage by the date, the real property be forthwith sold together out of Court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:

   (a)Firstly to pay all costs, commissions and expenses of the sale;

   (b)Secondly to discharge the mortgage and any other encumbrance affecting the real property;

   (c)Thirdly so much of the payment as is then outstanding together with interest thereon at the rate of 7.5 per centum per annum adjusted monthly from the date to the wife. 

5. That pending the payment or completion of the sale:

   (a)The Wife have the sole right to occupy the real property and during such right of occupation the Wife pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due.

   (b)The parties hold their respective interests in the real property upon trust pursuant to these orders; and

   (c)Neither party encumber the real property without the consent in writing of the other party.

6. That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders

   (a)Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the property being deemed to be in the possession of the Husband/Wife)

   (b)Monies standing to the credit of the parties in any joint bank account are to become the property of the Husband/Wife.

   (c)Insurance policies remain the sole property of the owner/beneficiary named thereon/in.

   (d)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.

   (e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

7. There be liberty to apply in respect of implementation of these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 753 of 2018

MR JANESE

Applicant

And

MS SALIDA

Respondent

REASONS FOR JUDGMENT

1. This is a property dispute between a couple who were married from 2002 until separation on 15 November 2015.  On 18 November 2019, they entered into final parenting orders by consent.  Pursuant to those orders their two children, X, born in 2004 and, Y, born in 2009, live with the mother.  It appears that although there was a regime of time originally prescribed, it is not by any means entirely adhered to and the children appear to spend only intermittent time with their father.

2. Each of those parties seeks a 70/30 division of their property in their own favour.  This is a startling disparity in a property dispute.  It reflects, in my view, a lack of judgment on the part of both parties.  For the reasons that follow, I am going to order that there be a division of the value of the parties’ matrimonial home 55/45 in favour of the husband, with the wife to retain substantial funds under her effective control.

Agreed or Uncontroversial Matters

1. The husband was born in 1950 in Country E, and left that country to come to live permanently in Australia in 1984.  He married in 1985 and had three children with his then wife, finally divorcing in 2000.  The wife was born in 1972 and is of Country F extraction.  She was living there when she was contacted by the husband online in 2001.  At that time, she was working as a professional. 

2. Between 2001 and early 2002, it appears that the husband visited City G, where the mother was living, no less than three times, and they married, as earlier indicated, in 2002.  They had a brief sojourn in Country F of several weeks following which they returned to Australia.  The wife came to Australia in 2002 with her elder son, Mr H, whose age does not appear to be precisely denoted but he is now, from what the parties say in their affidavits, it would seem, 26 years old and lives independently.  He lived, however, with the parties in Australia for a considerable period of his childhood.

3. As earlier indicated, the two children, X and Y, followed in 2004 and 2009 respectively.

4. In 2003, the husband bought the former matrimonial home in B Street, Suburb C for $178,000, of which $50,000 deposit was his savings.  He has deposed to quite a considerable number of overseas holidays, and that does not appear to be in issue, including Country J, Country K, Country L, Country M, Country N, Country E and Country O.

5. The husband has a one tenth or one seventh (he used different figures in his affidavits) share of a property in City P, Country E, but it does not appear to be controversial that he is unlikely to be able to realise his share in that family property in any foreseeable timeframe.

6. The matrimonial home was valued at $520,000 in February 2017, but has been the subject of a recent kerbside valuation obtained by the wife in the range of $400,000 to $420,000. 

7. The husband worked in his own business, Q Pty Ltd from about 2003 until that company was eventually deregistered.  He has been in receipt of the aged pension since 2018 and lives in rental property with his new partner who is, it would appear, also an aged pensioner.  The husband has what is accepted to be an outstanding liability to a friend, Mr R, in the sum of $25,000 in respect of a loan taken out in 2015.

8. The wife took Australian citizenship in 2007 and, according to her first affidavit filed 24 May 2018, studied English at TAFE for one year and then obtained work as a admin assistant. She undertook an Advanced Diploma for two years and obtained a degree from S University in 2009. Her mother, the maternal grandmother, came to live in Australia in 2009 and continues to live in the matrimonial home.

9. The elder child, X, was diagnosed in 2011 as having pervasive developmental disorder not otherwise specified, but, from a re-assessment in October 2016, he is now diagnosed as having mild to moderate autism, and I note that he becomes anxious at any change.

10. The wife has continued to pay the mortgage on the matrimonial home since the husband moved out in 2015. It would appear from tendered bank statements that she pays $1200 per month towards the mortgage which presently stands at $157,000.

The Parties’ Affidavits

1. I have, of course, read carefully the parties’ affidavit material and had due regard to all of it. Much of it is paraphrased in the agreed or uncontroversial matters above. The following additional points may be of note.

2. In the husband’s first affidavit he outlined the parties’ relationship and many of the matters already described. He deposed that the wife had commenced her own business, “T”, in 2014.

3. In her first affidavit, filed 24 May 2018, the wife deposed to the difficulties with X, and I note that she deposed that when her mother came to Australia in 2009, she paid about $45,000 to cover the costs of her migration. I note that at paragraph 15 the grandmother is self-funded and not eligible to apply for Centrelink benefits, was then aged 85 years of age and “has an income of approximately $6000 per year, being the interest from her term deposits and shares. I provide a home for her and I supplement her income as necessary.”

4. The wife deposed to an assertion that the husband had frequently been paid cash in hand and that she had paid the mortgage since 24 August 2017. She deposed to having $21,745 in superannuation, and that she had herself paid for the full cost of holidays in Country L, Country K and Country U.

5. The husband’s next and final affidavit, filed 25 June 2020, relevantly deposed that the wife had extracted $140,000 from the parties’ joint bank account. Annexed as Annexure “-3”, is a table of withdrawals and deposits from that joint account. These purport to show total withdrawals in significant sums (some as low as two to three hundred dollars) of $315,580. The vast bulk of those withdrawals has gone to what is clear now are the wife’s the V Bank and W Bank accounts.  I note that a total of some $23,000 was paid to an account of the wife’s mother between 2011 and 2013. A total of substantial deposits, some of which are plainly attributable to the wife’s mother, is some $235,832. Of that figure $79,000 are, clearly, deposits directly attributable to the wife’s mother.

6. The husband deposed to having savings of about $50,000 at the start of the relationship, and he deposed to the fashion in which he spent effectively all of this on bringing the wife and her son to Australia and associated migration agent and visa fees, the cost of the wedding, trips to Country F and the purchase of a car for the wife. He also deposed to having $25,000 worth in superannuation at the time of the start of the relationship. He deposed to alleged fulltime employment on the part of the wife between 2005 and 2014. He deposed to withdrawing his superannuation of approximately $50,000 in 2013 and its expenditure on reducing the mortgage and household expenses. He further deposed that the wife was now in a new relationship with Mr Z, formerly a friend of his own.

7. The wife’s final affidavit, filed 23 July 2020, sets out her desire to retain the family home. At paragraph 8:

   My wish is to remain living in the matrimonial home with the children and my elderly mother. I feel Mr Janese and his solicitors are unreasonably forcing the sale of the matrimonial home without any thought to the reality that myself and the children, along with my elderly mother, will be evicted unexpectedly with no other home to go to.

8. She went on to say at paragraph 11 that she was in the process of approving her mortgage loan application. “-1” is an annexure from Mr AA of BB Finance. It is actually addressed to Mr Z at cc.com.au and to “T”. It, relevantly, asserts:

   This email is to confirm that Ms Salida has engaged my services to obtain a mortgage for her family home.  The purpose is to refinance the home into her name and payout an amount agreed upon. 

   We are in the process of finding a solution for her requirements and objectives. 

   If and when a solution is found a final amount agreed upon will be required to process the application.

9. The wife went on to depose working as an accountant between 2006 to 2013 and to the establishment of “T” in 2014. She is in receipt of Centrelink benefits because “T” makes very little money.

The Exhibits

1. Exhibit R2 is a series of reports on X. As earlier noted, in 2011 he was not assessed as meeting autistic criteria, but, in 2016, has now been assessed as doing so. 

2. The financial reports and tax returns of Q Pty Ltd are exhibit R1. I note that in 2011 to 2012 the company had a total income of $30,000 of which $15,400 was described as salaries and wages.  From the husband’s tax return for the same year it is clear that all of that went to him. The previous year the figure for wages was $40,000 but subsequent wages were, on any view of the matter, more modest.

3. Exhibit A2 is the mortgage statements showing a mortgage of just over $157,000.

4. Exhibit A1 is the husband’s tax returns showing income in the main between 2012 and 2015 of about $20,000 per year.

5. Exhibit R3 is the bank account records of Q Pty Ltd. I note that most of the payments into that account came from a company called DD Company, and that the last payment from that company was in May 2016.

6. Exhibit R5 are Christmas cards sent to the father allegedly opened by the children from EE Pty Ltd wishing the husband well for the season and looking forward to the next year.

7. Exhibit R4 is the husband’s bank account records with FF Bank which do indeed show a withdrawal on 4 January 2013 of $50,000 superannuation paid into that account. I note that by 30 December 2015 the sum was down to $3481.

The Submissions Made and Evidence Given at Court

1. What follows is from my notes.

2. Following an earlier discussion about the wife’s application for an adjournment, which for reasons then given I declined, counsel opened his case. It was asserted that the most recent mortgage statement showed an amount of $153,450. He then adopted his outline of case, the husband was called and adopted his trial affidavit and financial statement as true and correct.

3. Under cross-examination, the husband asserted that he had spent $40,000 bringing the wife to Australia. It was put to him that she had paid for one airfare but he said she did not. $25,000 was airfares and other expenses. They went to a resort and travelled outside City G.  There were restaurants and a hotel.  He denied that he was courting his wife at the time and said he had not exaggerated his expenses. He said $25,000 was spent on all of the trips. There were two trips to Country F.  The wife had no savings at the start and it was her chance to leave Country F.  She was working as a tour guide at the time. She had a better life here.  She did not have any money to bring over.

4. He had started Q Pty Ltd in about 2003. He had left Employer GG by that time. He had $25,000 in superannuation from Employer GG, and $50,000 as a property settlement from his first wife. He used the $50,000 to buy the matrimonial home.

5. The husband said the wife spoke good English when she came to Australia but not at a high level. She had been used as a tour guide in City G. She started studying English for one year and did not contribute to the home. The property was bought in his sole name. He considered joint names in the future depending on how the relationship went. He did not transfer the wife into joint names because of facts which happened afterwards. He confirmed the children were born in 2004 and 2009 and the wife became a citizen in 2007. The children were a good thing for them. They are loving kids. But the wife had withdrawn and not had a close relationship with him. She never declared her love for him.  They were together for 10 years. He thought he should rethink about joint names on the property after her behavioural problems and some issues as to loyalty. 

6. The husband said he was the sole director of Q Pty Ltd. He is a professional and he was designing goods on a contract basis. Deposits from a company into the Q Pty Ltd account were from a customer as well as DD Company.

7. He was taxed with the balance of the account in April 2016 being about $3,000 and said he would have to see the statement.  But he went on to say, and I thought the concession did him credit, that if it was in the statement it was correct. Income of about $3,000 per month was probably correct. He was paying rent for his factory of about $2,000 a month, but also had to pay rates and electricity and other expenses. The business was not making a lot of money. When taxed again with his accounts of Q Pty Ltd in 2013 showing a total salary of $5,190 and income of $17,600 he said that if it was in the statements that it was correct. He was not making a profit and was not receiving money in cash. Q Pty Ltd was deregistered in 2017 just before he went onto the pension. He had been with Q Pty Ltd for a few months and intended to design heaters but did not get the chance to do so. He thought he stopped in about March to May 2017. Mr HH took over the company who was a friend of his.  He was trying to get a project for himself but it never took off and he did not have the knowledge to keep it going.

8. He confirmed that the deposit of $50,802 in January 2013 was his superannuation put in to the FF Bank account. He was paying mortgages of about $1,400 at the time.

9. All his superannuation was spent on payments and house payments and everyday expenses. The kitchen was done in 2005 and there was $25,000 spent for extensions in 2005.

10. The husband was not sure if the wife had done a diploma in 2004 to 2005. She had done a second degree. She worked at Employer JJ. She stopped work for a year after the birth of the first child and then went back. She was a professional from 2009 to 2012 but was not making any financial contribution.  He paid all the expenses and all the outgoings and shopping. He did manage to still pay.  It was not much but it was enough.  His credit card was used for ongoing expenses.

11. When cross-examined about “-3” the husband said he never got any statements from W Bank. When it was put to him that the W Bank belonged to the wife’s mother he said he was not aware where the W Bank comes from. It was put to him that entries in the bank accounts from KK Company were salaries for the mother but he said he had no knowledge of her having a salary because she never bought anything for the house.  She stayed at home by herself.

12. When it was put that the wife did all the housework and took X to his medical appointments, the husband said he had done all the cooking.  Her mother did some from time to time, but the mother never cooked.  He had the children very often. He used to put them in bed but the mother would not allow him to do this anymore. He went to parent teacher nights.

13. The father confirmed that he did not believe that X was autistic.  The level of autism depends upon the assessment and he did not believe that X had been fully assessed. He asserted that X was very good socially and popular.  There is some level of autism but he is a normal child for him. He is not aware that X is under the care of a general practitioner. He had never observed that X becomes stressed through change. The Intervention Order means that he has no access to the school and he never gets reports about X.  He is committed to selling the house.

14. When it was put to him that selling the house would have an effect on X, he said he was renting a house. X can live with him if he wants to. He gives him self-assurance. It would not be easy for him to come his house. He accused the wife of denigrating him to the children.  There was some cross-examination about an incident at the Suburb LL Sports Club but I confess I found this hard to follow and it does not seem to be of any great moment. The father said that X would be happy to be with him all the time. The wife got an Intervention Order on false statements. He denied controlling the wife. He said she did what she liked. He denied raping her. The wife was not committed to the relationship. She made no financial contribution during the relationship.  She was saving money. She had squirrelled money away. He said that he had done the washing sometimes but it was shared. He then said (contrary to his earlier answer) that the wife did cook sometimes. He took the children to school every day but pick up was shared.

1. The husband said he knew that the wife could not pay him out. He would prefer the house is sold. He would accept a payment out if there was an agreed market price. When it was put to him that the wife had not repartnered, the husband said he could see from where he was that the wife had a partner (there was a person with the wife during the transmission save for the wife’s evidence who it appears is, indeed, Mr Z). The husband confirmed that he has repartnered with Ms MM.  He lives with her.  She is also retired. They do not have much in financial resources. They are on a pension. Hers is a foreign pension from overseas. 

The Opening and Evidence of the Wife

1. Counsel was content to rely on the outline of case and emphasised the wife seeks to retain the home. She seeks a 70/30 division in her favour and the pool as in her outline. She has used the $420,000 kerbside valuation.

2. The wife was called and confirmed her affidavits as true and correct.

3. Under cross-examination, the wife confirmed that when she met the husband she had been a professional for eight years.  Her son, Mr H, was born in 1994 and was eight when she came to Australia.  He lived with the husband and wife until he moved out when he was 22 or 23, and in any event after separation. Mr H had gone to NN School in secondary education. Mr H works as a professional for Employer OO.  He has a double degree.  She has not received any support from Mr H’s father.

4. The wife denied that the husband paid for her and Mr H to come to Australia. She said she paid for three sets of train tickets to City PP, Country F and the costs of living in City PP, Country F which she said was one of the most expensive cities in the world. Her mother stayed with them for two to three times before she immigrated. These may have been one month visits but her mother was working fulltime and they were not more than a few weeks. The grandmother does not speak good English and has just basic expressions.  She has Alzheimer’s. She used to be able to do some simple shopping but was not able to go to the bank. She had helped her mother set her bank account up. She operated her FF Bank account for her and then other banks. She closed the other banks and there is now only W Bank and V Bank. These are in her name alone.  The wife operates them and she still has them.

5. Her mother came to Australia in 2009 and lived with them. It was put to her that the husband paid $45,000 in immigration costs. The wife said that her mother transferred money from her account in Country F. She said that it was many years ago but they both contributed. She had tried to obtain bank records but it was too long ago. Her mother is self-funded and does not receive Centrelink. Her income was then about $6000 per year in 2018. That is not the case now. She appeared to suggest that her mother had sold an apartment in Country F, then seemed to me to say that she had not. She said $88,000 was received from the sale of her mother’s home in 2008. She invested it for her.  It was many years ago. The interest rate was quite high.  Together in the W Bank and V Bank accounts there is about $140,000. She decided not to touch this $140,000 because they were alright with their expenses. She did not want to touch her mother’s money. It was put to her that her grandmother had been with them from 2009 until separation and the wife agreed. She said the mother paid for her own mobile phone and had paid for her two or three visits to Australia. It was put to her that the joint account was hers and that the husband had not received joint statements. The wife said she did receive joint statements and they were on the kitchen table for months.

6. She confirmed that she had done an English course for three months perhaps fulltime. She did not do two degrees but undertook further studies.  She first did an Advanced Diploma in at TAFE and then did further studies at S University. The TAFE course was three years fulltime and S University was three years part time.  She enjoyed study.  It was hard work. She was working fulltime when at S University. Between 2005 and 2014 she worked except when she had the children. When it was put that she was well paid she said she earned $42,000 per year not $100,000. She has not got tax returns. 

7. The wife was cross-examined about her endeavours to obtain loan funding to pay the husband out. She said while paragraph 9 of her affidavit was true at the time it was not correct now.  She has a friend who will give her a loan. If I understood her answer correctly, she said her friend has decided to help her. She said her friend was not on affidavit and was not her partner. He was her partner. She was speaking to the Court from his office and he had been with her the previous day. She had borrowed from her mother for legal costs. She is her only relative in Australia. She denied getting mortgage statements. The mortgage statements were sent to a PO Box. She is applying for a loan.

8. When cross-examined about annexure “-1” from Mr AA, the wife conceded it was also addressed to Mr Z. They are going to get a mortgage together and have applied together.  Getting a loan might take up to three months. She started two months ago but has only recently got the broker. 

9. The wife went on to say that her mother had broken her leg on Sunday and been operated on Tuesday (before the hearing on Thursday). She explained, understandably in my view, that this had caused considerable difficulty.

10. The wife was cross-examined about requests for material about “T”. She was asked how much she had earned from the last two years.  She said whatever she earned she put back into her hobby.  It was no more than a few hundred dollars in the last few years.

11. The wife was cross-examined about what was said (I could not access it) to be a sophisticated website. The wife conceded that it was sophisticated but said it did not cost a lot of money. It cost a few hundred dollars and it was not expensive to do it. The wife was cross-examined in considerable detail about entries on the website. The wife’s answers were not easy to follow given that I did not have access to the website, but she appeared to suggest that it was not an expensive website to create.  She complained that she is looking after her son with disabilities which is a big job. She confirmed that she has a number of products. She had previously attended various markets but this stopped in April with the COVID emergency. She appeared to say that she was able to store goods in a fridge owned by a friend. She said she did not have much in stock because it was a hobby. 

12. I would interpolate and say that although I had no idea how much money the wife makes from this business, I gained the very clear impression that her activities were far more extensive than she was prepared to admit.

13. The wife was then asked about how she would borrow money and said she would borrow money from her mother. Her mother was prepared to lend her $100,000 and she had discussed this with her. Her mother was very distressed at the prospect of moving.  There was around $100,000, maybe more.  She said this had been agreed on Sunday morning but the mother broke her leg on Sunday evening which was very distressing.  She denied making up this aspect of her evidence on the run, but I would interpolate again and say that this was obviously the case.

14. There was no affidavit from her mother nor from Mr Z.  Mr Z has a successful business.  She believed that Mr Z makes a substantial income.

15. The wife was cross-examined about her assertion at paragraph 30 of her most recent affidavit that the husband is still earning a substantial income.  She believes that he is and that although he has been on the age pension for a couple of years, it is means tested and he has not been truthful.  He receives these Christmas cards every year and her children open every card.  She indicated that a substantial income would be $500 per month.  She thought he was still working for cash.  He had always been secretive about his job.

16. The wife confirmed that an interim Intervention Order was resolved by an undertaking.  She denied being still in possession of the car formerly owned by the parties.  She did not know what had happened to it. 

17. The wife was cross-examined about “-3”.  She was taken to a withdrawal to W Bank in 2011 of $20,000.  She said this was her mother’s money.  She moved it across because the term deposit had finished.  It went through their account to the mother’s account.  She now has around about $140,000 and this is still her mother’s money.  Until 2016, her mother would go to Country F and get money from her rent.

18. The wife said her own salary was not great.  They spent a lot of money on private schools.  Funds deposited in 2011 (Court Book 121) and $7,700 transferred in 2011 at Court Book 123 were her mother’s money.

19. Further funds in 2011 in the sum of $6,500 was also her mother’s money. The wife was further cross-examined about these bank records and I have to confess that some of the answers were not altogether easy to follow.  When cross-examined about Court Book 134 (part of exhibit A3), the wife said first that she had never had a term deposit in her name, but then went on to say that she had one but it was her mother’s money.  It was just a transitional moment. (Once again, this had all appearance of being made up on the run.) V Bank is a branch of the NAB.  She opened her NAB account in 2015.  The QQ Bank account referred to at Court Book 136 is her mother’s bank account.

20. When it was put to her that a total of $315,580 had been paid from the joint account to her mother’s account, the wife said it was only in their joint account for two days before being transferred. 

21. I interpolate this is plainly not the case. An examination of the transfer of funds does not show routine transfers in and out in any proximity to one another.

22. The wife denied that the amount received from her mother amounted to $235,832. She had arrived with $90,000 and every year she went to Country F.

23. When it was put to her that she had transferred $80,000 to her mother over five years, the wife said that her mother accumulated money in Country F.  Rent and retirement benefits in Country F amounted to about $8000 per year.

24. In re-examination, the wife confirmed that her son, Mr H, met the husband in Country F in 2000. The husband knew she had a child from the beginning because it was in her profile.

25. When asked what her mother had done while living with them, the wife said that she helped with the child born in 2009. Both of the parents were working, so her mother looked after the children.

Final Submissions by Counsel for the Mother

1. Counsel submitted the motor vehicle 1 may not exist and should be taken out of the schedule of assets.  The transfer of moneys asserted by the husband was denied and the wife had not retained her earnings.  She had not included the loan from Mr R because there was no loan agreement, but if it was a genuine debt, it could be included.  Counsel submitted that the contributions were equal. The husband put $50,000 towards the home and the wife came with nothing, but brought youth, energy and determination to build a family.  She put substantial energy into retraining and committed her income to the family. 

2. The husband’s company had every low earnings and were approximately $20,000 a year from 2013 on. The wife worked from 2005 onwards.  She worked for Employer JJ and Employer RR as an professional, and she then worked in a business. The wife said her income was an average of $42,000 and she was the primary caregiver with little assistance from the husband.

3. Separation occurred in 2015 when the children were about 10 and 6 years old.  The wife did the bulk of the home duties and her mother lived with the family from 2009. The grandmother’s contributions were a further contribution by the wife. The grandmother brought money as well.  The father pays only $32 per month in child support for children 11 and 15 years old and X has special needs.  The mother now looks after her own mother.  The wife has paid the mortgage for the last three years and her key aim is that they go on living in the family home.

4. Counsel dealt with the section 75(2) factors. She had no comment to make about the father’s health. The wife is in good health, but cannot work at the moment. She is building a small business. It is a hobby and just at starting point. The husband is still working for cash. It is possible he could continue to do so. The wife’s work will depend on X and X’s future is uncertain. She is on government subsidies at the moment. There should be a 10 per cent adjustment in favour of the wife for looking after the two children and a further adjustment for X, which may be a lifetime responsibility. The grandmother’s dementia means that she is not now making any contribution. The proposed disposition is just and equitable. The husband withdrew his super and the wife only has $20,000. The children spend very little time with the father, one night or day per week. It is important to the wife to keep the house, and the wife seeks 150 days from judgment to obtain funding.

Final Submissions from Counsel for the Husband

1. Counsel submitted there was no challenge to the fact that the husband bought and paid for the wife to come to Australia.  He agreed that the motor vehicle 1 should be deleted from the asset pool.  The husband’s income is reflected by his tax returns, not the company returns.  Annexure “-3” was all borne out by exhibit A3.  Net $80,000 had been deposited in the wife’s mother’s account.  The husband also contributed to the support of the wife and Mr H.  Mr H was supported throughout the relationship through private secondary school and university.  The husband supported the wife in getting qualifications.  The grandmother was living with the parties for seven and a half to eight years.  She was costing $300 to $500 per month.  The grandmother had helped with childminding and done some cooking.

2. Counsel submitted the grandmother’s account was used for the wife’s benefit.  He did not, however, submit that the wife can use the bank account in the future.  Even if the husband could work, it will be far less than the wife.  Counsel pointed to the wife’s strong determination.  The wife will get back into work.  The wife had done more as a homemaker, but the contributions otherwise were roughly equal.  In the five years of separation, the wife had had the occupation of the home, and although she paid the mortgage, it enabled her to develop her hobby.

3. When looking to the 75(2) factors, it was submitted these favour the husband.  The wife is only 48 years old and her business is doing well.  The husband’s partner has a pension.  The wife has the children, but there is no evidence that X will be a burden after he turns 18.  She still has $22,000 in superannuation, whereas the husband’s went into the joint pool.  The court was required to make final orders.  The wife wants to keep the house, but with a delay till judgment and then five months.  This was highly speculative.  It was simply not the case that X’s needs overruled everything else.  There was no evidence the husband was working and the Christmas cards were not persuasive. 

Findings about the Credit of the Parties and Findings as to Relevant Matters

1. Both of these parties struck me as prone to exaggeration and neither impressed me as being an entirely reliable witness.  In saying this, I am not for a moment suggesting that they were not telling the truth, but a combination of time, and the natural tendency of human beings to reorder their experiences in a fashion favourable to their interests, would cause each of them to, on occasions, overstate or downright fail to acknowledge what seems to me to be obvious.

2. On balance, I found the husband a better witness than the wife.  His answers were, in the main, given with reasonable conviction and he did not seem to be as prone to overstatement as was the wife.  I have already commented on some aspects of her evidence that were plainly being made up on the run, and there was a marked tendency on her part to qualify or change her answers if they appeared to be unhelpful to her.

3. Before coming to the matters of the pool contribution and future needs, it is appropriate to set out my conclusions, albeit at perhaps a somewhat broad brush level, as to what actually happened in this relationship.

4. Both these parties had been previously married and had children.  The husbands have played no part in this proceeding, but what is noteworthy is that following his separation from his first wife, he obtained $50,000.  Noting, as I do, that his income for the 2009/2010 year was in excess of $90,000, it seems probable to me that in historical terms, the husband was quite well paid.

5. The parties met online in what must surely have been, at least in part, something of a marriage of convenience.  I accept that the wife was keen to move to Australia, notwithstanding that she was in what, for Country F, was well established employment as a professional when they first met.  At the time that the relationship commenced, she was 31 years old with a child then seven, and the husband was 51 years old.  Their marriage followed with almost lightning speed after they first met.  Clearly coming to Australia with her son was an attraction to the wife.  Not least because she left behind her family in Country F to do so.

6. The parties bickering about who paid how much of the airfares and the like to come to Australia reflects the sort of exaggeration that I have already referred to.  As I find the husband must have paid most of it because the wife has deposed she had nothing at the time she came.  She may have made some small contribution to living expenses while they were together in Country F but it was of small moment.

7. Nonetheless, there is an element of unattractive parsimony in the husband’s position now.  He was well prepared to pay whatever moneys he did pay to bring the wife to Australia in the hope of the relationship he was doubtless anticipating.  I do not think it counts as much to his credit as counsel sought to emphasise it in submissions.

8. Shortly after arrival in Australia the husband bought the property in B Street, Suburb C. He had the $50,000 deposit which on a total purchase price of some $178,000 was a lot.

9. The wife applied herself with commendable determination to learning English and getting her qualifications and I accept that the husband’s support while she was doing at least a substantial proportion of this is a contribution in his favour.  Likewise, he was at least the predominant earner until at least 2005 and from what little I have seen of the business accounts of Q Pty Ltd it may have done quite well in the first period until about 2010.

10. There is no doubt that the wife earned from 2005 to 2015, apart from periods of maternity leave during which her own mother was the primary caregiver of the children.

11. The husband having worked with his own business for some years, it is clear from the bank records that from about 2011 onwards the amount he was earning was not very substantial.

12. Both these parties, in a sense, sought to advance positions which were internally inconsistent.  On the one hand, the husband said he had little income.  On the other hand, he said he was paying all the bills and the wife was abstracting all her pay to herself.

13. On the wife’s part, she said her income was only modest but in the same breath said she was able to afford to pay for a significant number of overseas holidays.

14. Bearing in mind that the mortgage has gone from presumably about $128,000 to $153,000 over the period from 2003 until 2020, it is obvious that the parties lived beyond their means. It is clear that they had a substantial number of overseas holidays which to the extent that they were not paid for by the parties joint earnings were plainly paid out of increases in the mortgage. I will deal further with the facts in assessing contributions and the section 75(2) factors.

Stanford and Stanford (2012) 247 CLR 108

1. In this case the basis upon which the parties conducted their financial affairs during the relationship has been radically altered by their separation.  Both of the parties seek a property adjustment, albeit in mirror opposite terms.  It is plainly just and equitable that there be a property adjustment.

The property pool

1. The property pool consists, in my opinion, of the following:

   (a)Former matrimonial home in B Street, Suburb C value to be determined by an independent valuation.

   (b)Property in City P, Country E, $14,000 (But probably unrealisable for the foreseeable future).

   (c)Husband’s Motor Vehicle 2, $6,500.

   (d)Husband’s Motor Vehicle 3, $5,500.

   (e)Husband’s motorbike, $5,500.

2. Superannuation, husband, nil.  Wife, $22,000.  Liabilities, mortgage, $153,000.  Loan from Mr R $25,000.

3. The parties have minimal amounts in their bank accounts and I do not propose to include them.

4. Likewise, I do not believe that the wife’s business, “T”, has any realisable value.  It produces more of an income than the wife was prepared to disclose, but it is not, as I find, of any considerable moment.

5. Both parties have included the loan from Mr R but in my opinion, given that the loan was taken out in 2015 and therefore at or about the time of separation, it is difficult to see that it can have been applied save to the benefit of the husband, especially since it is his case that the marital relationship was essentially ended well before that.  If it is to be repaid it should be repaid by the husband alone.

6. There are entries with no figures against them for moneys allegedly retained by the wife from her earnings and from sale of possessions of the husband, but I will deal with that issue when I deal with the question of contribution.

7. I will also now deal with the question of funds transferred into the wife’s mother’s account.

8. The wife’s evidence about what her mother had in Country F varied dramatically from time to time.  At one point it was asserted that she had sold a property in Country F for $80,000 and received a further $6,000 or so a year in rent and other earnings from Country F.  At another point it appeared to be suggested that she was still renting a property in Country F.  From documents forwarded with the wife’s written submissions it seems clear that the $80,000 was indeed forwarded. Nonetheless, I am not able to say how much of the $140,000 in the wife’s mother’s account relates to funds brought from Country F.  What I can say is that I am clear that the wife’s mother’s account is effectively funds entirely at the disposal of the wife.  The husband in final submissions appeared to suggest that she could not access this money, but that was a utilitarian submission designed to suggest that the wife will not be able to pay the husband out.  In truth, it is his position that all those funds are available to the wife to dispose of as she sees fit.

9. Of this $140,000 I think that approximately $80,000 was abstracted from the husband or wife’s joint account and sent to that of the grandmother.  As already indicated, the total sums said to be credited to the grandmother are well short even on the most beneficent view of the amounts transferred out into her account.

10. Whether the balance of some $60,000 came from the grandmother’s own earnings or from monies, as it were, squirrelled away as the husband puts it, I am not able to say.  As I have indicated the parties seem to have lived beyond their means and their numerous holidays must have cost a lot of money.  They were, after all, not destinations generally regarded as cheap, including Country U and Country N (the latter of which costs a lot to get to, in any event).

11. Having said this, I think that the sum of $140,000 should not be added back into the pool, but rather treated as it should be as a resource available to the wife pursuant to section 75(2)(o) of the Act. This finding reflects the difficulty I have had and continue to have as to determining the exact proportions, and origin, of the sum itself.

Contribution

1. There is no doubt that there are aspects of this relationship that point to a greater contribution by the husband.  He brought the wife and her son to Australia.  The son has received an excellent education which has doubtless assisted him in his life.  Nonetheless, both parties were contributing to the party’s finances for the bulk of the period of the relationship, i.e. 2005 to 2015.  The husband’s case is that the wife kept all her money for herself, but she must have paid some of it to joint expenses, even if it was only holidays.

2. Furthermore, no bank accounts have been disclosed that show large other sums of money other than those in the grandmother’s account.  And, in my view, it is more probable and otherwise that both of these parties contributed as best they were able to the party’s finances, including any costs associated with the upbringing and education of Mr H.

3. The wife’s mother lived with the parties from 2009 onwards, and whatever she may have cost the parties, the fact is that she was the primary caregiver to the children while both of the parties were working from 2009 onwards and any costs associated with her upkeep are well and truly, in my view, offset by their contribution.

4. The one contribution that seems to be quite unarguable is the husband’s initial contribution in purchasing the only significant asset the parties now have.  This was, of course, now many years ago but it is plain that the only reason the parties have any assets at all is that the husband was able to make that significant first contribution.

5. The wife made a negative contribution to the party’s affairs in as much as she transferred substantial joint funds to an account in the name of her own mother. But, as I have said, this is a matter I propose to consider under section 75(2)(o) of the Act.

6. The wife was a person who applied herself very diligently to getting qualified, although the husband deserves some credit for supporting her while she did so in its early stages.  She then made far more money than the husband but she kept a fair bit of it for herself.

7. In all the circumstances I would calibrate the contributions of the parties as being 55 per cent by the husband and 45 per cent by the wife.

Future needs

1. The husband is almost 70 and the wife is 48.  The husband’s health does not appear to be markedly poor and he lives in a new relationship with a new partner.  They are both on the aged pension.  Their only hope of significant financial improvement lies in the outcome of this case.

2. There is no doubt in my mind that the husband is not working and will not do so again.  The records of Q Pty Ltd show the running down of the business before it’s deregistration at the time the husband went onto the pension.  He may have had some limited involvement for several months thereafter but it is his friend Mr HH who has continued the business.

3. The wife denies being in a new relationship but I do not accept this.  Her new partner, Mr Z, is plainly going to be a joint borrower with her.  The correspondence from the mortgage broker is addressed to them both and I have no doubt that it means what it says.  The wife is at a very preliminary stage of endeavouring to obtain loan approval and she said in her evidence Mr Z is going to help her do this.  This being the case, she plainly has financial resources at her disposal that are not available to the husband.  She will also, in my view, obtain work if she wishes to do so, although her present circumstances must be complicated by the care of her own mother now with Alzheimer’s and in excess of 85 years of age.

4. The parties positions about X are, once again, are the subject of exaggeration.  X has a total IQ score of 75, which is in the borderline range, but not subnormal.  The evidence does, while looking after him must indeed be stressful for the reasons given in the most recent 2016 report, (and I have had nothing but sympathy for the mother and X and, indeed, the whole family in this regard), it is not at all certain to what extent X’s circumstances will inhibit the mother’s employment.  Correspondingly, however, the father’s downplaying of X’s difficulties also involves a measure of self-serving exaggeration.  Plainly the mother will have considerable responsibility for the children for years to come.  They are only 15 and 10 even now.

5. Nonetheless, the wife has the $140,000 to which I have returned. It is a significant asset, even if much of it derives from her own mother.

6. In all the circumstances I would calibrate the parties future needs as being essentially even.

Conclusion: Just and equitable

1. In the particular circumstances of this case, each side’s claim for a 70 per cent division in their favour were, in my view, always grossly exaggerated.  The wife’s case essentially is that she should pay out whatever limited amount that can be ordered that she is able to pay so that she can keep the matrimonial home no matter what.  It is not appropriate that X’s needs, which are not as bad as she says they are, should be elevated to this level.  The court is required to produce a result that is just and equitable to all the parties.  In my view, the wife should pay the husband 55 per cent of the net value of the home. A period of 60 days is the maximum I am prepared to allow for this to occur. Her attempts to obtain finance have been ongoing for some time now and if she can not find the necessary funds in this additional time I have no doubt that she will not be able to do so at all.

2. The wife should also keep her $20,000 superannuation.  There has been no application for a splitting order. The sum the wife retains is in my view offset by the value of the husband’s motor vehicles and his (tenuous) share of the family property in Country E.

I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 4 September 2020