Jennings and Reeves (No.2)
[2018] FCCA 3601
•5 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JENNINGS & REEVES (No.2) | [2018] FCCA 3601 |
| Catchwords: FAMILY LAW – Property. |
| Legislation: Family Law Act 1975 pt.VIIIAB, ss.4AA, 44(6), 75(2), 90SF, 90SM, 106B Evidence Act 1995 s.50 |
| Cases cited: Re F Litigants in Person in Person Guidelines (2001) FLC 93-072 Allesch v Maunz [2000] HCA 40 Stanford v Stanford [2012] HCA 52 |
| Applicant: | MR JENNINGS |
| Respondent: | MS REEVES |
| File Number: | PAC 767 of 2014 |
| Judgment of: | Judge Harman |
| Hearing date: | 5 November 2018 |
| Date of Last Submission: | 5 November 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 5 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Oliak of Counsel |
| No appearance by or on behalf of the Respondent. |
ORDERS
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena or pursuant to section 69ZW of the Family Law Act 1975 be returned to the person or organisation who produced same or securely destroyed.
IT IS NOTED that publication of this judgment under the pseudonym Jennings & Reeves (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 767 of 2014
| MR JENNINGS |
Applicant
And
| MS REEVES |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to issues of property adjustment between the parties under Part VIIIAB of the Family Law Act 1975.
The parties to the proceedings are Mr Jennings, the Applicant, and Ms Reeves, the Respondent.
There is no controversy that the parties lived together in a de facto relationship as defined in section 4AA of the Family Law Act 1975 for a period of time. There is some controversy as to when the relationship ended. However, that controversy need not trouble the Court at this point.
The matter is undefended, an issue to which I will return shortly.
The relationship is agreed to have commenced on or about [date] 2006. The Applicant submits that the relationship concluded on 26 February 2012. The Respondent alleges an earlier date, by some months.
By reference to the above dates, it may appear to the casual observer that the proceedings must be outside of the court’s jurisdiction. One would think that if the relationship is alleged to have concluded 26 February 2012, the latest of the two dates alleged, that the matter must be out of time when these proceedings are now dealt with in November 2018. Alas, that is not so. The proceedings were commenced by an Application Initiating Proceedings filed on 21 February 2014, and thus, on the Applicant’s allegation, which I accept, the proceedings are in time having been filed within 2 years of the date of separation.
Any doubt in that regard is obviated, in any event, by Orders made by another Judge of the Court on 10 June 2016. The Orders made that day purported to grant leave, pursuant to section 44(6) of the Act, to commence proceedings out of time. It is unclear whether a finding was made accepting the earlier date of separation and necessitating the granting of leave. If such a finding had been made, the Court would be bound by it. In the absence of evidence that such a finding was made I do not intend to infer or presume that it was. That is not a criticism of the Judge who had granted leave. It may be that it was granted as a precaution, based on the reality that a date alleged by the Respondent might ultimately be accepted.
The Respondent does not appear today. Accordingly, the matter is pressed on an undefended basis, subject to what has now developed as an Application for adjournment made at 11.40 am.
In determining whether it is appropriate to proceed with the matter at all or on an undefended basis, if only for the purpose of adjournment, I must be satisfied that justice and equity is served. As the High Court of Australia discussed in Allesch v Maunz [2000] HCA 40, what is required to afford due process to a party is a matter to be determined by the facts and circumstances of any given case.
In this case, Ms Reeves has, at different points in time, participated in the proceedings. Whether that participation was effective or helpful is a different matter, but participate she most assuredly has.
The hearing dates allocated to this matter were fixed by Order made 11 May 2018. At that time, the Respondent and a proposed second Respondent, the husband or at least partner of Ms Reeves, were present and both participated in person. The applicant was also present, represented by Counsel who appeared by telephone. Accordingly, I am satisfied that, in all probability, the Respondent is and should be aware of today’s listing. Certain directions were made as to the filing of material. I am satisfied that the Respondent, having been present when those Orders were made, has been afforded a more than reasonable opportunity to participate and file material.
The Court is required to determine whether due process has been afforded by reference to the facts and circumstances of each case and by satisfaction that adequate notice has been given and a reasonable opportunity has passed. One most assuredly has.
These proceedings have been on foot for a period of four years and eight months, or slightly in excess thereof, the matter having first come before the Court on 31 March 2018, a full four and a half years ago. The matter has occupied the time of various Judges of this Court, at least four, as well as Registrars, in the conduct of not less than two conciliation conferences. Neither of those conferences, of course, were successful, as the parties do not have a common substratum of agreed facts to which they can point in these proceedings, nor do they have the ability to take the first step, as discussed by the High Court in Stanford v Stanford [2012] HCA 52, of identifying their present legal and equitable interests in property. That is not intended to suggest that one party is more culpable than the other and certainly not to suggest that the Applicant is responsible for deficiencies in knowledge as to the Respondent’s financial circumstances. It is a simple reality, however.
I am satisfied that the Respondent is aware of the proceedings. The Respondent is, I am satisfied, aware of that which is required of her to participate in the proceedings. The Respondent has, at various times in these proceedings, filed documents of some length. This includes, for example, an Affidavit filed shortly after the first return date of the proceedings, (28 April 2014), which, whilst not paginated, (as is required by the Federal Circuit Court Rules 2001), appears to comprise something approaching a ream of paper or 500 pages. It is marked as “filed under insistence of the respondent”. From a cursory scan of the Affidavit itself, the Affidavit does not appear to relate to anything relevant to these proceedings. However, I make clear that the Respondent’s material is not read for the purpose of this determination as the trial directions that were made have been contumeliously disregarded.
The Court is not aware of any reason why the Respondent is not present and does not appear. In those circumstances, I am satisfied that the matter can and should proceed on an undefended basis, as regards the Respondent.
That also leaves the issue of the proposed second Respondent, Mr G, the husband or partner of Ms Reeves. It is suggested that Mr G was the partner of Ms Reeves prior to the relationship between Ms Reeves and Mr Jennings and that he is her partner postdating the de facto relationship between Mr Jennings and Ms Reeves.
An Application has been made, by a Further Amended Initiating Application, to join Mr G and/or a company now solely controlled by him, [Company Pty Ltd], as a party to the proceedings. That joinder has not occurred at this point.
Mr G has filed material in response to the Application for joinder. Mr G resists that joinder. The difficulty with that material – again, not considered for the purpose of any determination of substantive issues, but for the purpose of seeking to understand that which is involved in the proceedings – is the clear inaccuracy of the evidence filed by him.
Mr G suggests that he is and has been, at all relevant times, the sole director of the company [Company Pty Ltd]. Material that is contained within the Applicant’s case, indeed, freshly tendered, comprising part of exhibit A in the proceedings, makes clear that this is simply untrue. The balance of Mr G’s Affidavit, if one were to apply the rules of evidence, even in a cursory fashion, would be excluded.
The further Amended Application seeks relief in the following terms:
a.Within a period of 14 days from the date of these Orders, the Respondent pay to the Applicant the sum of $165,000;
b.Simultaneous with the payment referred to above, the Applicant shall relinquish any right to title or interest in any property of the Respondent. It is to be observed that the Applicant does not presently hold any right, title or interest in property of the Respondent, legally or equitably, which could be relinquished. Indeed, the Applicant does not hold right, title or interest in any property of substance;
c.Pursuant to section 106B of the Family Law Act 1975, the wife’s disposition of her shareholding interest in the company [Company Pty Ltd], be set aside;
d.That [Company Pty Ltd] be joined as a party to the proceedings, and thereafter, named as the second Respondent.
The latter Applications cannot be dealt with on the evidence that is filed. It is unclear whether the joinder is necessary. That is far from atypical of the issues in the proceedings.
To the extent that it is relevant, I am satisfied that the matter can and should proceed in the absence of the Respondent, who has done nothing required of her by way of disclosure, discovery, filing of material or attendance for the purpose of this hearing.
That then leaves the issue of adjournment.
The Applicant now seeks adjournment to enable him to, as it were, put his house in order.
The material that is filed under the heading and style “Trial Affidavit” has been observed by me to fall short of establishing or supporting the claim for relief that is made in the Further Amended Application. Accordingly, the Applicant seeks an opportunity or further opportunity to remedy his evidence, to be able to place further material before the Court which, he asserts, will assist in establishing his claim as just and equitable.
In dealing with the Application for adjournment, I am conscious of that which has fallen from the High Court of Australia on a number of occasions, most notably in Aon Risk Services & Australian National University [2009] HCA 27.[1] I incorporate the relevant portions thereof as regarding the Court’s obligation to efficiently use its resources as regards not only the parties to the proceedings but all litigants who come before the Court:
[1] The joint Judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ at paragraphs 92-100.
92. The purposes stated in r 21 reflect principles of case management by the courts. Such management is now an accepted aspect of the system of civil justice administered by courts in Australia. It was recognised some time ago, by courts here and elsewhere in the common law world, that a different approach was required to tackle the problems of delay and cost in the litigation process In its report in 2000, Managing Justice: A review of the federal civil justice system, the Australian Law Reform Commission noted that: "Over the last ten years Australian courts have become more active in monitoring and managing the conduct and progress of cases before them, from the time a matter is lodged to finalisation".
93. Rule 21(2)(b) indicates that the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants. In Sali v SPC Ltd (1993) 67 ALJR 841 Toohey and Gaudron JJ explained that case management reflected:
"[t]he view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard ...".
94. It will be recalled that in Queensland v J L Holdings [1997] HCA 1 the plurality said that nothing in Sali v SPC suggested that principles of case management might be employed "except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable". Their Honours said that case management was not to be seen as an end to itself and that the ultimate aim of the court remained the attainment of justice, even in changing times. In Gale v Superdrug Stores Plc[1996] 1 WLR 1089 Millett LJ expressed a similar concern, regarding the need to ensure that justice is not sacrificed. Waller LJ, delivering the judgment of the Court of Appeal in Worldwide Corporation Ltd v GPT Ltd [1998] EWCA Civ 1894, said that such a concern did not pay sufficient regard to the fact that the courts are concerned to do justice to all litigants. Where a party had had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants.
95. The statement of Waller LJ identifies a fundamental premise of case management. What may be just, when amendment is sought, requires account to be taken of other litigants, not just the parties to the proceedings in question. The statement is consistent with what was said in Sali v SPC, which reflected a proper understanding of case management. The statements in J L Holdings do not reflect such an understanding and are not consistent with what was said in Sali v SPC. To say that case management principles should only be applied "in extreme circumstances" to refuse an amendment implies that considerations such as delay and costs can never be as important as the raising of an arguable case; and it denies the wider effects of delay upon others.
96. An important aspect of the approach taken by the plurality in J L Holdings was that it proceeded upon an assumption that a party should be permitted to amend to raise an arguable issue subject to the payment of costs occasioned by the amendment. So stated it suggests that a party has something approaching a right to an amendment. That is not the case. The "right" spoken of in Cropper v Smith needs to be understood in the context of that case and the Rule, which required amendment to permit the determination of a matter already in issue. It is more accurate to say that parties have the right to invoke the jurisdiction and the powers of the court in order to seek a resolution of their dispute. Subject to any rights to amend without leave given to the parties by the rules of court, the question of further amendment of a party's claim is dependent upon the exercise of the court's discretionary power.
97. The objectives of case management are now expressly stated in r 21 of the Court Procedures Rules. It cannot be overlooked that later rules, such as r 21, are likely to have been written with the decision in J L Holdings in mind. The purposes stated in r 21 cannot be ignored. The Court Procedures Rules make plain that the Rules are to be applied having regard to the stated objectives of the timely disposal of the proceedings at an affordable cost. There can be no doubt about the importance of those matters in litigation in the courts of the Australian Capital Territory.
98. Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account [emphasis added]. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.
99. In the past it has more readily been assumed that an order for the costs occasioned by the amendment would overcome injustice to the amending party's opponent. In Cropper v Smith (1884) 26 Ch D 700 Bowen LJ described an order for costs as a panacea that heals all. Such a view may largely explain the decision of this Court in Shannon v Lee Chun (1912) 15 CLR 257 which upheld a decision allowing the plaintiff to raise a new case at the second trial, but which imposed a condition as to costs. The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment. In the present case it is difficult to see that such an order could be sufficient compensation, given that Aon would be required to again defend litigation which was, effectively, to be commenced afresh.
100. The views expressed by Lord Griffiths in Ketteman v Hansel Properties Ltd [1987] AC 189, that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants, are also now generally accepted. In Bomanite Pty Ltd v Slatex Corp Aust [1991] FCA 536 French J said of Bowen LJ's statements in Cropper v Smith:
"... That may well have been so at one time, but it is no longer true today ... Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary."
Today, these proceedings occupy their nineteenth Court event over a space of four years and eight months. Adjournment of the proceedings would see the matter then celebrate, for want of better description, its fifth anniversary before the Court[2] – all of that with respect to a claim for relief which, on its face, is difficult to reconcile with the evidence led.
[2] A period equivalent to the length of the relationship between these parties.
I have already today had to deal with notices of objection in relation to subpoena. It is worth recording the reasons for the disposal of those objections, as those reasons, to some extent, speak to the adjournment Application that is made.
Subpoena for the production of documents were issued to three specific entities, a bank and two firms of accountants. The subpoena were issued in June of 2017. On 30 June 2017, notices of objection were filed by the Respondent in relation to each of those subpoena.
Today represents the first occasion when a call has been made upon those subpoena, leave sought to inspect the material produced or to deal with the objections. That is some 16 months after material was returned to the Court in response to the subpoena. Leaving that issue aside, the objections clearly could not be maintained.
It is suggested that the subpoena “breach court orders”. They do not. There is no Order restraining the parties from issuing subpoena or properly and efficiently conducting their litigation. Perhaps Orders to require the parties to have done so may have assisted, as clearly the parties have not properly and efficiently conducted their litigation.
It is suggested that the subpoena is addressed to a person or entity that is not a party to the proceedings. Indeed, that is the nature of many subpoena. As authorities indicate, the provision of documents by parties should not be addressed by subpoena but by disclosure and discovery. Inter parties subpoena are predominantly reserved to cases of egregious failure to comply with obligations of discovery and disclosure to non-parties.
It is suggested by the objection that the documents that are sought are oppressive and sent to the wrong addresses. As to whether the subpoenas have been sent to the wrong addresses, there are Affidavits of service with respect to each of the subpoena. The address at which service has been affected would not appear to have affected compliance, as material has been produced by each of the recipients.
It may well be that the Respondent is complaining that material has been sent to the wrong address for her for the purpose of giving notice under the Federal Circuit Court Rules 2001. However, the Respondent has failed to provide an address for service. She has complained stridently and voluminously, in various of the documents that she has filed, as to how information is to be communicated to her and the like. The Respondent was clearly made aware of the subpoenas, whether sent to an address of her liking or not, as she has been able to identify to whom the subpoenas were issued and to have filed objections.
That leaves the issue of the subpoenas being oppressive, perhaps also inferring a suggested irrelevance. The documents relate to the financial affairs of the Respondent. Accordingly, they must, on their face, be provisionally relevant. On that basis, the subpoena establish a forensic purpose and a proper basis for issue. On that basis, and whilst no attempt has been made to deal with the objections prior to today, I am satisfied (and was so satisfied) that the objections should be dismissed. Leave has already been granted to inspect that material.
In returning to the issue of adjournment, I am conscious of the significant deficiencies of the Applicant’s evidence. The Applicant has, throughout these proceedings, been self-represented. The Applicant has, at various points in the proceedings, retained Counsel on a direct brief to represent his affairs, and at other times has appeared in person.
The rules of evidence and procedure addressing, for example, preparation, the requirement to provide disclosure and discovery and to file material as directed by the Court, are identical whether a party is legally represented or not. The Court does have an obligation to take certain steps above and beyond that which would occur when parties are legally represented, such as those set out in Re F Litigants in Person in Person Guidelines (2001) FLC 93-072. However, if a party conducts their litigation by themselves, then so be it.
In this circumstance, I am particularly conscious of the gravamen of the Applicant’s case. That can be substantially, although I do not suggest solely, found at paragraphs 59 and 60 of his trial Affidavit, being that filed on 26 June 2017, (that being shortly prior to the dates that had initially been fixed for hearing for these proceedings in July 2017). On that occasion, the matter was to have been heard by a visiting Judge and was regrettably, due to over-listing, marked not reached and returned to the pool of cases to be heard. Arrangements were made to transfer the matter between Judges within the Registry to bring the matter on as quickly as possible, although, regrettably, that has not been as quickly as might have been desirable, either from the perspective of the parties or the Court.
At the identified paragraphs above, the Applicant asserts that he has performed “around 8600 hours of unpaid work for the respondent, personally, and for the company [Company Pty Ltd], which I understood she controlled as a joint director and shareholder”. The Respondent did have an interest in that private company at times during the relationship between the parties. That is so notwithstanding Mr G’s strident assertion that Ms Reeves has not ever held an interest in the company and that it has always been his company. That assertion is manifestly untrue by reference to the historical searches undertaken. Hence, at paragraph 2, when Mr G asserts, “This company has no dealings with Ms Reeves and I control this company fully since its inception”, he is seriously wrong. Whether that supports the claim for relief by the Applicant or not is a separate matter.
In returning to the Applicant’s evidence, however, he is chronologically clear as to the work that he says he has performed in assisting the Respondent. That is then broken up as including:
a.3,000 hours of [work] in [omitted] matters, the Respondent having had workers’ compensation proceedings with the [company];
b.1,100 hours between 2006 and 2011 [work] in matters relating to her previous employment. They were proceedings before the [Court] [country omitted];
c.3,500 hours in managing litigation, discovery and support relating to a previous investment and employment matter that went to the District Court and, later, bankruptcy proceedings;
d.1,000 hours in general matters involving her, the Respondent’s properties BAS and tax returns, insurance matters, land tax matters and other smaller projects.
In viewing preparation and its adequacy and now the plea for adjournment to permit further time to address the deficiencies identified by the Court, I am conscious of that evidence. It is suggested that the work undertaken by the Applicant in assisting the Respondent has been fundamentally important to her conduct of litigation. Why such attention to detail could not have been afforded to the Applicant’s preparation of his own case in these proceedings is unclear. Certainly, he is dramatically impeded by the Respondent’s refusal to engage appropriately in these proceedings. Indeed, a significant aspect of that potentially arises from the one statement of financial circumstances that the Respondent has filed in these proceedings, having been filed on 28 April 2014.
As is observed in numerous bench sheets of both Judges and Registrars, that document is largely blank. It suggests, under the heading “Property Owned By You, Part I” that the Respondent owns not a single thing – no interest in real estate, corporations, superannuation or otherwise. There is reference to a mortgage in the joint names of Ms Reeves and Mr G, although no detail provided, including the suggested balance owing. The document is, as was observed in various bench sheets, entirely defective. That is consistent with the complaint by the Applicant that the Respondent has been anything but candid and complete in her disclosure in these proceedings. Yet there has been four years and eight months to address those matters through the issue of further subpoena and the like if that is what is considered necessary. But it has not occurred. Its absence is not explained.
It is not for the Court, at the hearing of a matter, to identify the deficiencies of the evidence filed by a party, to provide a checklist to an Applicant so that the Applicant might then go and fix those evidential shortcomings. Even assuming that those deficiencies are capable of being fixed it remains unclear as to how deficiencies would be addressed. That is especially so as this is not the first time that the matter has been listed for hearing.
I do not propose to adjourn the proceedings. The matter has been on foot for a significant period of time, vastly longer than many matters before this Court, indeed, the vast majority of matters before this Court. That is not to suggest that the Applicant has been responsible for all of the delay or all of the adjournments. It is not my intention to suggest that it is so.
There have been a number of adjournments that arose as a consequence of retirement of the judicial officer then seized with the matter. There have then been further adjournments after the matter was transferred to the docket of a fresh Judge, some of which related to determination of an Application for summary dismissal, an Application for leave to apply out of time, and further Orders made with respect to disclosure which would appear, at least on the Respondent’s part, to have been ignored.
There was then, of course, the false start at hearing in July 2017, when the matter could not be reached. But that is a simple reality of litigation before the Court. The Court over-lists to accommodate for circumstances beyond the Court’s control, such as settlement, (although welcome), or parties failing to comply with directions and preparing their case promptly and efficiently or illness. The matter has been allocated time to be heard today. However, the matter is not, as must be apparent from the Application for adjournment, ready to proceed.
I am not satisfied that the Court’s resources are best used by further adjournment. This is particularly so having regard to the deficiencies in the evidence and what would appear to be, from the evidence filed to date, (although accepting there may be further evidence which could be placed before the Court but as to which I am satisfied there has already been a more than abundant opportunity for it to be placed before the Court), a manifest misconception, based on the relief that is sought, of the basis for property adjustment Orders.
Accordingly, adjournment is formally refused.
In turning to the merit of the case, I have had regard to each of the documents identified as trial documents by the Applicant, being:
a.His trial Affidavit already identified, filed 26 June 2017;
b.The further Amended Initiating Application filed 4 May 2017;
c.The material that is tendered, exhibit A, certain corporate and real estate searches.
I have also had the benefit of submissions by Counsel, although those submissions are somewhat hampered by the material that is available, submissions being responsive to and based upon the evidence that is led.
I do not propose to recite the entirety of the Applicant’s evidence, although that would not take any significant time, it being an Affidavit of some nine pages. I do note that is not a criticism; if only all litigants were so erudite. But there is a balance to be struck between erudition and the provision of relevant and admissible evidence that supports the cause that is pressed.
I accept that the Applicant’s evidence should be treated as more probably correct than not. It is unchallenged. There has been an abundant opportunity for it to be challenged. Accordingly, to the extent that the Applicant’s evidence complies with admissibility and the provisions of the Evidence Act 1995 and common law rules of evidence, it is considered on that basis. There are aspects of the evidence that do not so comply. Those aspects cannot be given any weight.
Paragraphs 8 to 10 of the Applicant’s trial Affidavit sets out a history of the accommodation of the parties. From [date] 2006 to [date] 2007 the parties lived in rental accommodation at Suburb A. From [date] 2007 to [date] 2012 the parties lived in rental accommodation at Suburb B. During that later period, the rent for those premises was paid by the Applicant, approximately $350 per week or a little over $18,000 a year.
Paragraphs 12 to 15 set out the history of the undertaking of washing and ironing between the parties. Paragraph 16 gives the history of allocation of dishwashing responsibilities between the parties. Paragraph 17 details general household planning, paragraphs 18 and 19 set out the history of garden maintenance, paragraph 21 shopping, paragraph 22 cooking and paragraphs 24 to 33 detail certain social engagements and holidays of the parties which the Applicant asserts he predominantly, if not solely, met the expenses for.
Discussion of the litigation in which the Respondent was engaged with the [Company] commences at paragraph 35.
At paragraph 39, the Applicant sets out the assets available to the parties at separation. The material does not set out anything as to the assets of the parties at the commencement of cohabitation. I do not suggest that that this is a fundamental flaw. However, it is readily apparent from the evidence that is filed, that at the commencement of the relationship the Respondent owned four parcels of real estate or interests therein as well as an interest in the company already identified, which company would seem to own three parcels of real estate.
The Applicant does not assert that he owned any asset of any value at the commencement of the relationship save for his interest in a private corporation, [Company B]. There were certain dealings with respect to the shareholding in that company, but at present, it has returned to the Applicant being the sole shareholder.
The Applicant’s Affidavit and Financial Statement otherwise make clear that the assets which he presently holds in his name comprise modest funds in a bank account, ($20, at least at the date of swearing), the business [Company B], (which is apportioned a value of $50,177, although I take that value as indicative rather than as proof of value as it is, at best, an admission against interest, and the basis upon which it is asserted or calculated is not known). Otherwise, the Applicant has items of furniture and contents suggested to be worth $2,500 and superannuation suggested to have a value $1. There are a number of debts in the Applicant’s name, a [finance company] debt, a credit card debt, and a suggested loan from [omitted] Super Fund, together with a further personal loan from a private lender and a Bank 1 account.
The Respondent, on the other hand, owned, directly or through her shareholding, the seven parcels of real estate that as indicated. What is unusual in relation to those assets is that there is no suggestion in the evidence of any intermingling of funds at any point in time with respect to those properties. That is not to suggest that a party must demonstrate a direct financial contribution towards the acquisition, maintenance or improvement of an asset. It is but one of the many types of contribution that can be alleged and found a claim. However, the parties would appear, irrespective of the suggested assistance provided by the Applicant, (which, even taking it on its face and at its highest, could not go towards financial contribution towards those assets, that these parties have), to have maintained entirely separate finances during their relationship.
The parties have never operated a joint bank account, never purchased property together, indeed, would not appear to have ever shared any significant level of financial information each with the other, save and except to the extent that the Respondent might be inferred to have provided both information and authority for its access and use regarding the various claims and litigations in which she has been involved.
The parties would appear to have spent a significant period of their relationship together embroiled in litigation of one sort or another, whether with each other or with others.
At paragraph 59, as already recited, is a detailed estimate of the work that is suggested by the Applicant to have been undertaken in assisting the Respondent with her affairs, litigation and management of real estate.
What is entirely absent from the Applicant’s evidence is any reference to the Respondent’s real estate holdings or any reference to the ultimate sale prices, one of the four parcels having been sold, or tenancy of those properties or any income produced by them. One can only infer that income must have been produced, as annexed to the Applicant’s material, annexure L, is a schedule, purportedly dated 27 April 2005, significantly prior to the relationship of the parties, but reportedly prepared by the Applicant, which sets out significant mortgages encumbering those various parcels of real estate. Those loans, on a rough calculation, approach $2 million. One can only infer that the properties to which they relate and which they encumber had some value of or at least approximating those amounts.
In relation to the sale of one of the four parcels, a property at Property C, the best that can be understood is by reference to annexure B, a schedule presumably prepared pursuant to section 50 of the Evidence Act 1995, although not explicitly referred to as such, (and the source documents relied upon in its preparation are neither identified or available, and thus, the document is somewhat unhelpful, if not inadmissible), which refers to the sale of Property C in 2009 for $660,000. The schedule suggests that that property had a mortgage of $439,664.47, and thus, unless the mortgage had increased prior to sale, although there is no evidence that it had, the property had equity well in excess of the mortgage.
That is particularly curious, as one of the contributions asserted by the Applicant, albeit in inadmissible form, at paragraph 86 of his Affidavit, is that it was his understanding that if, upon sale of that property, the Respondent had been required to pay all land tax which had accrued with respect to the property, $63,319.45, that she would have defaulted on all of her mortgages. It is entirely unclear how that would have been so. There would have been more than sufficient funds available from sale to have discharged that debt, with profit remaining.
Continuing on with the Affidavit, there is then further recitation as to that allegedly undertaken with respect to the wife’s workers’ compensation dispute with the [Company], a chose in action that would appear to have been introduced into the relationship, and which ultimately, (paragraph 65), resulted in a Judgment and payment to the Respondent of $30,000. This payment is in addition to any other funds which had earlier been received, (although the earlier funds are not specified.
There was assistance suggested with respect to litigation before the [Court] of [country omitted] as well as proceedings before the District Court of New South Wales, (paragraphs 66 to 73). In the [Court] in [country omitted] proceedings, a Judgment of $250,000 was entered in the Respondent’s favour, although it is suggested that, at the date of separation, only $31,445 of that had been received. It is unclear whether any of the balance has been received subsequently. The New South Wales District Court proceedings ultimately resulted in a modest amount being recovered as a “refund”, the dispute apparently having been between the Respondent and a former legal representative.
Commencing at paragraph 74, there is discussion of the assistance allegedly provided to the Respondent by assisting her to manage her tax affairs, whether State or Federal, and general cash flow and budgeting in relation to the parcels of real estate, which the Respondent owned, either in her personal name or through the company. Mr G casts some doubt on this proposition, but as he is not here to prosecute the issue, I disregard his evidence beyond observations as to its relative inaccuracy in other respects.
One would envisage that the Respondent might have had some success in management of her financial affairs without the Applicant’s assistance, on the basis that she had accumulated significant assets and wealth prior to meeting the Applicant. Again, little turns upon that. What is stark and in contradistinction, however, is the absence of assertion by the Applicant that, at the commencement of the relationship, he owned any asset other than his interest in the private business. That has some importance as the submission is put on behalf of the Applicant that he forwent the accumulation of wealth and the conduct of his own affairs for the purpose of lending to the Respondent the assistance that he details at paragraphs 59 and 60 of his Affidavit. Even without those distractions, it would not seem that the Applicant had been significantly successful in accumulating wealth prior to the relationship, although that is entirely unexplained.
Evidence of the administration of taxes continues on at paragraphs 82 to 92, and then, commencing at paragraph 93 to the completion of the Affidavit at paragraph 99, matters are set out which would speak to section 90SF.
It is submitted that if the Respondent was participating, some of the gaps in evidence might have been filled by the Respondent during cross-examination, save, of course, that nothing that has been ordered by the Court to date has been successful in procuring the Respondent’s participation or frank and complete disclosure of assets or any other material, bearing in mind the significant number of Orders and directions that have been made in that regard, without any substantial success. Further, the Respondent could not be compelled to answer. The best that could be done would be to draw inferences negative to the Respondent, should she fail to participate in the proceedings, or fail to answer questions when put to her. There would still need to be a basis for the inference to be drawn based upon evidence that is led by the Applicant that would suggest that either the Applicant’s position should be accepted without challenge or that the material presented contradicts the Respondent’s evidence. It is that evidence which is missing.
I accept the Applicant’s evidence, as already indicated, on its face as more probably correct than not. It is, accordingly, submitted on the Applicant’s part that the Applicant has made what might be broadly described as homemaker and parent contributions or contributions to the relationship through cooking, cleaning, washing, ironing, et cetera. It is submitted that there have been indirect financial contributions by the Applicant through the work that he has performed in assisting the Respondent through [employment omitted], as it is styled at paragraph 60 of the Affidavit, and through “[employment omitted] matters”, or more generally in relation to managing the affairs of the properties owned by the Respondent.
In dealing with the substantive merits of the matter, I am reminded by the High Court’s decision in Stanford v Stanford [2012] HCA 52 of the process that must be followed, (accepting for one moment that, whilst the High Court was dealing with an Application under Part VIII, that the same principles apply identically in relation to Part VIIIAB proceedings. At paragraph 37, their Honours made clear that:
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 Court’s jurisdiction is then reaffirmed as altering interests in property. In this case, there is no jointly owned property at all. That is not fatal to a party obtaining an Order for property adjustment, but the party must demonstrate their contributions or other relevant considerations under section 90SF (or section 75(2) as their Honours dealt with).
At paragraph 39, their Honours make clear:
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 section 79 of the Act must be applied, keeping in mind the “community of ownership arising from marriage has no place in the common law
The Applicant must demonstrate that it is just and equitable for an adjustment to be made.
Their Honours continued:
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 governed the rights of any two persons who are not spouses.
Two observations must be made at that point. Firstly, these parties have never, accepting the Applicant’s evidence on its face as more probably correct than not, enjoyed in common any asset owned by either of them, with the possible exception of a motor vehicle owned by the Applicant or the private company of which he was the sole or majority shareholder during the relationship. The real estate assets of the Respondent, substantial as they would appear to be by reference to title searches, if nothing else, even though their values are not known, have never been intermingled in any fashion by the parties. The parties have never lived in the property. It is not suggested there has been any financial contribution towards shortfalls between rental and mortgage, assuming that the properties have been tenanted, as it is simply not spoken to in the evidence. There is no suggestion that such rental as was received was treated by the parties as joint.
Secondly, it must be observed that the parties have not, during their relationship, intermingled their finances in any way, or at least so the evidence discloses. The parties have not operated a joint bank account, nor is it suggested that there has ever been any joint contribution by the parties to any endeavour. Indeed, the Applicant’s evidence is entirely to the contrary. He asserts that he has met certain expenses in their totality without contribution by or recourse to the Respondent. The Respondent, it is submitted, has done what she has chosen with her income, although there is no evidence to suggest she has received any, although clearly it might be inferred that the Respondent received income as the nearly $2 million of mortgages have been serviced somehow and the Applicant does not suggest he has ever contributed money towards them.
Their Honours also continue at paragraph 40:
Whether the making of 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 section 79(4) [or in this case, section 90SM(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 section 79(4), without a separate consideration of section 79(2), [or, in this case, section 90SM(2)], would be to conflate the statutory requirements and to ignore the principles laid down by the Act.
If one turns to section 90SM, those corresponding provisions can be ascertained. Section 90SM(4) sets out the various contributions which the Court must consider, replicating almost word for word section 79(4). Section 90SM(2) is not particularly relevant in this context, dealing as it does with the death of a party prior to the determination of the proceedings. However, section 90SM(1) sets out the Court’s fundamental jurisdiction to adjust interests in property of the parties by way of Orders for settlement of property and substitution for any interest in that property or Orders requiring certain other steps.
In dealing with the steps which their Honours have identified, I am satisfied that jurisdiction is appropriately established. That much is made clear, for example, by the High Court’s discussion in Stanford commencing at paragraph 42. The parties have clearly separated, do not propose to reconcile their relationship and they each make clear to the other and to the world at large that their relationship has concluded.
I am satisfied that the relationship meets the jurisdictional requirements of the Act. The parties lived together in a relationship for more than two years, and the relationship concluded or terminated no more than two years prior to the commencement of the proceedings, or even if it did, on the Respondent’s claim, leave has already been granted.
I must have regard to the legal and equitable interests of the parties at the date of hearing.
At the commencement of the relationship the Applicant did not have any legal or equitable interest in property, save that identified in his statement of financial circumstances, as already enumerated above. The Respondent’s interests in property are not clearly known. If one were to take her financial statement on its face, the document could not be anything short of the Respondent having sworn a false oath. The portion of the document disclosing property is left blank but sworn to be true. Whether that is intentionally so or not is unclear. But on the basis that the document is sworn as providing a complete snapshot, as it were, of the Respondent’s assets, liabilities and financial resources, at the date of swearing the document clearly does not disclose the true position. The only issue of interest, one of the few paragraphs the Respondent has troubled herself to complete, is in part L, Financial Resources, wherein she states “financial losses of $728,772.13 to be made up”.
I do not intend to be flippant by suggesting that the phrase “made up” might well be an illusion to chicanery or manufacture. Certainly, there is nothing in the document to support any such statement, nor even if such a loss could be demonstrated, could it be compensated. The Court’s jurisdiction under Part VIIIAB, (indeed, under Part VIII), is to adjust interests in property of the parties. It is not to compensate, to enforce contract or anything of that nature.
I accept that the Respondent has interests in property, substantial possibly, although there is no evidence of the value of any of those assets. At best, evidence is given of the likely market appraisal of properties. That, of course, is not evidence.
I must then have regard to the contributions of the parties. Contributions are dealt with by section 90SM(4), which I incorporate herein:
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) 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 de facto relationship 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 de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) 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 de facto relationship or either of them; and
(c) the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, 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 de facto relationship; and
(e) the matters referred to in subsection 90SF(3) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.
Again, for the sake of repetition, I make clear that it is not necessary for a party to establish a direct contribution towards a specific presently-existing asset. That is made clear by an abundant wealth of authority and by section 90SM(4)(b) of the Act. The Court can take into account:
a.Financial contributions, whether direct or indirect, made by or on behalf of a party or a child of a relationship. In this case, there are no contributions alleged by the Applicant to the acquisition, conservation or improvement of property of the parties, either singularly or jointly. It should be observed that it might be argued on the part of the Applicant that there is a contribution made by him by reference to Robb & Robb (1995) FLC 92-555, there being children of the Respondent who at times had spent time, if not lived permanently, with the parties, in their rental accommodation;
b.Contribution founded in direct or indirect contribution to the acquisition, conservation and improvement of property of the parties, whether that property still exists or not;
c.Contributions to the welfare of the family constituted by the parties, including contribution as a homemaker or parent;
d.The Court must have regard to the effect of the Orders upon the earning capacity of either party and each of the matters in section 90SF of the Act, together with matters which, in this case, bear little relevance relating to care arrangements for children and payment of child support.
The address of these factors were discussed by their Honours, comprising the High Court, eruditely in Stanford & Stanford, identified as the seven considerations.[3]
[3] See paragraph 22 of Stanford.
The contributions which are alleged by the Applicant do not fall within the category of direct financial contribution. At best, some might be described as falling within a category of indirect financial contribution through the provision of assistance, support, nurture or perhaps even more fundamental work, and advocacy, as it is described, in the pursuit of at least two, if not more choses in action or resistance of suit in the case of the bankruptcy proceedings. There is potentially some issue as to whether what is alleged to have been done falls foul of section 14 of the Legal Profession Act 2004, constituting legal work by a person not qualified to do so. It need not be pursued further. I accept what is put, from the bar table, that legal practitioners were engaged. In relation to the costs issue in the [country omitted] [Court] proceedings, that is more explicitly referred to in the material. That support and assistance, however, does not go to the direct creation of the chose in action, nor its crystallisation by verdict. It certainly would suggest an indirect contribution towards maintenance of the litigation, an abundance of which has been undertaken by these parties and each of them.
The contributions that are made by a homemaker or parent through payment of rent and the like, and the provision of support and assistance undertaking washing, extending, it is alleged, at times to including the washing of Ms Reeves’ children or perhaps even Mr G’s washing, could also have a foundation in contribution. But it is a matter of what is just and equitable in determining whether an adjustment is to be made.
The Applicant annexes to his material annexure I, a suggested accounting for various expenses paid throughout the relationship and concluding with total contributions towards those various expenses. The payments made comprise rent, services and utilities, insurance, gardening and cleaning costs, car repairs, insurance and the like, payments calculated as $183,658.79 during the relationship. It is suggested that of that amount that only $1,900 was contributed by the Respondent. The balance of $181,758.79 the Applicant asserts he paid.
The Applicant submits, whether by reference to that schedule or otherwise, that his contribution should, accordingly, be assessed as 20 to 22 per cent. The question is: of what?
In this case, there is no suggestion whatsoever of intermingling of finances of the parties. There is certainly the suggestion of significant unpaid work, at about 30 hours per week, averaged out across the entirety of the relationship, undertaken by the Applicant for the benefit of the Respondent.
The issue then becomes whether that is, of itself, sufficient to establish the contribution that is alleged. I am not satisfied that it is.
As the Full Court observed in Mayne & Mayne [2011] FamCAFC 192 (at paragraph 78):
“It is not the court’s function to conduct an audit of the marriage or the relationship finances. The parties’ remedies for resolving disputes about expenditure whilst they are together are centred on them and them alone.”
That comment is made in the context of claims for what is often referred to as add backs or premature distributions of property adjusted to be adjusted, pursuant to section 75(2)(o), by reference to Baker J’s decision in Kowaliw & Kowaliw (1981) FLC 91-092. That is not the issue in this case.
In this case, the issue is whether it is just and equitable to make an Order for adjustment of interests in property having regard to the Applicant’s evidence, taken at its highest, as establishing a contribution of any substance or significance. As the High Court was clear at paragraphs 39 and 40 of Stanford:
“…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 ….
…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.
In this case, I am not satisfied that the Applicant has made a contribution directly or indirectly to the acquisition, conservation or improvement of real property. Certainly, there may have been some real assistance lent during the relationship to maximising budgeting, which would have been of assistance in minimising expenditure in relation to mortgages. I am not satisfied that that would fall under the umbrella of acquiring, conserving or improving property.
There is no evidence that the Applicant has set foot upon any of these parcels of real estate. Again, that is not fatal to his claim. Contributions are not necessarily confined strictly to a particular asset, existing or otherwise. It is sufficient that contribution is made. But in this case, the parties have, one can only infer, deliberately kept their finances apart.
When it is submitted that the Respondent has retained her income and done with it what she likes, the fundamental flaw is that there is nothing to indicate what that income is or was. There is nothing to indicate how the Applicant has been financially disadvantaged or the Respondent advantaged. There is nothing to indicate that there has been any financial impact upon the Applicant at all, other than his enjoyment of rent. For example, whilst the Applicant claims that there should be some adjustment in his favour for contribution towards payment of $350 per week rent in relation to the Suburb A premises, it is clear from his evidence that they are premises which he also occupied himself, before the Respondent entered into occupation also. Thus, it is an expense he would have had individually, even if he had never met the Respondent. I am not satisfied that such payments could be claimed as a contribution made by him towards the family or otherwise. It is the same contribution he was making towards his own support, maintenance and upkeep. The same would apply, even though the parties moved to a new premises, to the payments made at that point.
The assistance that is provided in might be described as accounting and litigation support is not typified in any specific way by the Applicant, merely that he has performed that work and there should be some recompense as it is his contribution towards the relationship. I accept that it is his “contribution”, but, in returning to the above comments of the Full and High Courts, it is not the Court’s role to conduct an audit of the marriage.
It is not that there must be recompense for every contribution that is made by a party during their relationship. It is not an accounting. Parties provide service and assistance, if it might be so described, each to the other - emotional support and financial support. In relationships where parties have, whether through direct and express explicit agreement between them, organised their affairs so that one is a wage earner and one remains home caring for children of the relationship, the Court does not proceed on the basis of calculating income earnt and an auditing of expenses paid in assessing contribution. It is a broad and global assessment of contributions.
It is what is missing from the evidence in the Applicant’s case that troubles me the greatest. I accept his evidence, on oath, that he has provided substantial assistance and support to the Respondent. Whether that has produced financial benefit or not cannot be told. It may be that the various litigations might have been resolved more successfully without them. I do not indicate that to be in any way offensive or pejorative to the Applicant, but there is simply nothing to suggest what work was undertaken beyond the broad description of “thousands of hours of work in assisting with litigation”. Whether that was holding the Respondent’s hand (and I make clear, the Applicant suggests it was substantially more than that) or whether that was undertaking significant work, sitting up till the small hours of the morning compiling balance sheets, it is what was done in the relationship and in the context of parties’ relationship, a relationship in which the parties have maintained entirely separate financial arrangements.
Whilst accepting what was done by the Applicant was, in fact, done, I am not satisfied that they are contributions which would warrant the relief that is sought. That is not to suggest that the Court cannot make any alternate award in favour of a party, but it is a matter of whether it is just and equitable to do so. I am not satisfied in this case that it is.
The parties’ finances were entirely separate. There is nothing to suggest that any of the work performed has done other than assist in ensuring that budgeting has worked smoothly. There is no indication of what income was earnt from the assets the subject of mortgages. All that is known is that small arrears had accrued at the beginning of the relationship and that they were addressed through budgeting and assistance provided by the Applicant in that regard and in taking over paperwork which, on his own estimate, would be about three to three and a half hours per week, of substantial assistance to the Respondent no doubt, possibly even saving her money in not having to pay others to undertake that professional work for her.
Whether it is a contribution that warrants an adjustment in property is a separate step and I am not satisfied that it does. Certainly, I accept that the Applicant has used his income from whatever source it may have been derived, predominantly, it would seem, an aged pension, towards meeting expenses of the parties jointly. But that is what parties to relationships do when they are in relationships with each other. There is nothing to suggest that there has been a squirrelling away of funds by the Respondent which otherwise should have been properly left in the hands of the Applicant. Indeed, the Applicant’s own taxation summary, annexure G to his Affidavit, unpaginated as it might be, suggests that his income was far from large during the relationship. In the last year of the relationship, for example, the Applicant’s income was suggested to be, apportioned to that portion of the financial year in which the relationship subsisted, $12,381. At its highest point during the relationship, the Applicant’s income was a little short of $37,000. These are not parties with substantial income, at least from the perspective of the Applicant’s disclosed income. That was the income that the Applicant had without assets.
The Respondent’s income is entirely unknown, as she has failed to participate in any meaningful way, but nor has anything been tendered which would demonstrate her income. While subpoena had been issued and leave granted only today, nothing is tendered from that material suggesting anything in relation to the Respondent’s affairs.
On the basis that I am not satisfied that there are contributions which can or should warrant an adjustment of interests in property, particularly having regard to the complete quarantining of assets through a lack of intermingling of finances that the parties undertook, even on the Applicant’s evidence, taken on its face as more probably correct than not, then there is little utility in considering section 90SF. However, I propose to do so, lest I am wrong with respect to the above.
It is also possible that, even if a contribution is not established or substantially made out, that section 90SF adjustments could have relevance and warrant an adjustment. Those factors, if considered, do not provide any real assistance to the Applicant in this case.
Certainly, there is a significant age disparity between the parties. The Applicant is somewhat older than the Respondent and experiencing, I accept on his evidence, some health issues that will limit his future income. However, they are matters which had arisen prior to the relationship and purely as a function of age (again, without intending to be in any way offensive to the Applicant). There is no evidence to suggest that there has been any impact upon the Applicant’s ability to earn income or upon his health as a consequence of the relationship. There is no suggestion that the Respondent’s income earning or health have been impacted by the relationship positively or negatively. The relationship was brief.
The income, property and financial resources of the parties clearly weighs in favour of the Respondent, even without her participation. She has the support of Mr G, assuming that the Applicant’s supposition that she has reconciled with him is correct, as well as the assets owned by the company in which they have previously jointly owned shares, although the Respondent transferred her shareholding to the Respondent during the course of these proceedings. There is nothing to be gained, however, by requiring a setting aside of that transaction or attack upon any assets of that corporation, unless it is necessary to meet a Judgment made by the Court. Beyond those issues, however, there is nothing known of the Respondent’s present financial position.
There are no children of the relationship, and the children of the Respondent are now adult and, one would suspect, self-supporting.
The parties do not have commitments to support anyone other than themselves or any other children, again inferring that the Respondent’s now-adult children might be self-supporting.
The Applicant is entitled to receive an aged pension, which he receives at what is described as “the full rate”. It is certainly not a significant sum, but there is nothing to suggest that anything other than age and the effluxion of time has impacted the Applicant’s income. Certainly the evidence does not support a finding that the Applicant’s income has been impacted by the relationship. There is nothing to suggest or support the submission, for example, that the Applicant’s financial position in relation to the conduct of his business has been detrimentally impacted by this relationship, his devotion of his time and efforts to assisting the Respondent or otherwise. That evidence is simply not led.
The standard of living of the parties cannot be assessed, although I do not suggest the Applicant’s standard of living is high. It is no different, perhaps, to the standard of living enjoyed by him prior to the relationship. There is no evidence to suggest the relationship has impacted upon it.
The extent to which a course of education or training would assist is not relevant.
There is no impact upon creditors, save and except that the Applicant has a number of credit cards and personal loans. The Applicant will continue to service those debts from such income as he has. There is nothing on the evidence to suggest any of those liabilities have come about as a consequence of the relationship, intermingling of finances or the provision of funds or assistance to the Respondent.
The extent to which the parties have contributed to the income, earning capacity, property or resources of the other, in light of the findings that I have made above as to absence of contribution, could not be relevant.
I must consider the duration of the relationship and the extent to which it has affected earning capacity. The relationship subsisted for a little over five and a half years. There is no suggestion, on the Applicant’s own evidence, that the relationship has impacted his earning capacity or general financial position at all. There is no evidence the relationship has impacted the Respondent’s earning capacity.
Neither party wishes to fill the role of homemaker and parent. The Respondent may be cohabiting with Mr G, although that is unclear. In any event, the circumstances are not known. It could not, of itself, warrant any adjustment.
Neither party is bankrupt, as best as can be ascertained, nor do they have creditors who will be adversely affected by any Order that is made or not made.
There are no relevant issues with respect to child support, nor am I satisfied, by reference to subsection (r), that there are other facts and circumstances which justice requires be taken into account.
For those reasons, I am not satisfied that the plea for relief is made out. It is discretionary relief. It is relief which, as the High Court has been clear, must be awarded on the basis of justice and equity and by reference to the principles enunciated above.
For all those reasons, I propose to make and make the following Orders.
I certify that the preceding one hundred and twenty six (126) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 6 December 2018
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