Kalmas & Kalmas
[2021] FedCFamC2F 208
•21 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kalmas & Kalmas [2021] FedCFamC2F 208
File number(s): DGC 3157 of 2020 Judgment of: JUDGE BURCHARDT Date of judgment: 21 October 2021 Catchwords: FAMILY LAW – property dispute – relationship of 20 years (husband’s version) or 29 years (wife’s version) – date of separation significant given increases in husband’s superannuation – husband asserting separation under one roof in 2012 but wife asserting separation in 2019 – both parties acting inconsistently with their positions put to the Court – whether foster child coming into the household from 2015 onwards was a joint initiative or that of the wife alone – clearly a joint initiative – court finding separation in 2019 – contributions asserted as equal – ten per cent loading to the wife in respect of future needs – equalisation of superannuation just and equitable Legislation: Evidence Act 1995 (Cth)
Family Law (Superannuation) Regulations 2001 (Cth)
Family Law Act 1975 (Cth)
Cases cited: Bishop & Bishop (2013) FLC 93-553
Bonnici & Bonnici (1992) FLC 92-272
Kennon & Kennon (1997) FLC 92-757
Ogilvie v Adams [1981] VR 1041
Stanford v Stanford [2021] HCA 52
Division: Division 2 Family Law Number of paragraphs: 133 Date of last submission/s: 1 October 2021 Date of hearing: 30 September & 1 October 2021 Place: Dandenong Counsel for the Applicant: Mr Testart Solicitor for the Applicant: Joseph David Lawyers Counsel for the Respondent: Mr Goddard Solicitor for the Respondent: Michael Benjamin And Associates ORDERS
DGC 3157 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR KALMAS
Applicant
AND: MS KALMAS
Respondent
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
21 OCTOBER 2021
THE COURT ORDERS THAT:
1.Within 60 days of the date of this Order (“the date”), the wife pay the husband the sum of $215,494 (“the payment”)
2.Contemporaneously with the payment
(a)The husband do all things necessary to transfer to the wife all of her right, title and interest in the property situate at B Street, Suburb C, Victoria;
(b)The parties do all acts and things and sign all documents necessary for the wife to discharge and refinance the mortgage secured against the real property; and
(c)The wife indemnify the husband against all payments and liability pursuant to the Bank D mortgage and apportionable rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind.
3.In the event the whole of the payment has not been made by the due date then the real property be forthwith sold altogether 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 so much of the payment as it then outstanding together with interest thereon at the rate of 10 per centum per annum adjusted monthly from the due date to the husband;
(c)Thirdly the balance to the wife.
4.Pending the payment or completion of the sale:
(a)The wife have sole right to occupy the real property and that during such right of occupation the wife pay 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 save for the wife applying for finance over the real property to facilitate the payment.
5.Unless otherwise specified in these Orders and save for the purpose of enforcing monies due under these Orders:
(a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders;
(b)Monies standing to the credit of the parties in any joint bank account are to be split equally between the parties;
(c)Each party herby forgo any claim they may have to any superannuation benefits or other employment related benefits belonging to or earning by the other;
(d)Insurance policies remain the sole property of the life assured named therein;
(e)Each party be solely liable for and indemnify the other against any liability;
(f)Encumbering any item of property to which that party is entitled pursuant to these Orders; and joint tenancy of the parties in any real or personal estate is hereby expressly severed.
6.In the event that the husband or wife refuses or neglects to execute a deed and/or instrument in compliance with the provisions of paragraphs of this Order, the Registrar of the Federal Circuit and Family Court of Australia at Melbourne or Dandenong is hereby appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute all deeds and/or instruments in the name of the husband or the wife and do all acts and things to give validity and operation to the deeds and/or instruments.
7.In accordance with section 90XT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable to the husband from his interest in the Super Fund E, the Trustee shall pay the wife an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth), using a base amount of $175,667 and there is to be a corresponding reduction in the entitlement that the husband would have had but for these Orders.
8.Having been accorded procedural fairness in relation to the making of this Order, this Order binds the Trustee of the Super Fund E.
9.This Order has effect from the operative time.
10.The operative time for this Order in four (4) business days after the date of service of a sealed copy of the Order upon the Trustee of the Super Fund E.
11.Liberty to either party or the Trustee of the Super Fund E to apply to implement this Order.
12.Until the happening of any of:
(a)The transfer or “rolling over” into another superannuation fund of the payment split created by this Order; or
(b)The wife satisfies the condition of release and is paid the payment split which was created by this Order.
The husband be and is hereby restrained by himself, his servants or agents from executing a death benefit nomination in favour of any person or doing any other act or thing which would render any part of his interest in the Super Fund E a “non splittable payment” within the meaning of Regulation 12 or 13 of the Family Law (Superannuation) Regulations 2001 and the Trustee of the Super Fund E give effect to this Order.
13.The parties have liberty to apply in respect of implementation of these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Kalmas & Kalmas has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTRODUCTORY
This is a property dispute between a couple who were together for a very long time. Notwithstanding this, however, the length of the relationship is perhaps the most vividly contested matter in dispute. The applicant husband says that the relationship lasted for about 20 years, and the respondent wife says it lasted for about 29 years. This difference of opinion perhaps explains the differences in their positions. The husband’s position is that there should be a property adjustment of non-superannuation assets of approximately 55 per cent to 45 per cent in favour of the wife, together with an equalisation of superannuation as at 2012, when he says separation occurred. The wife says there should be an equalisation of superannuation as at the date in September 2019 when she says separation occurred and that, in effect, she should retain the whole of the non-superannuation property pool.
Each of these parties, as I find, has acted inconsistently with the positions for which they now contend from time to time. But doing the best one can in a situation where the parties’ conduct has been inconsistent, I think separation in a legal sense took place in September 2019.
AGREED OR UNCONTROVERSIAL MATTERS
The husband was born in 1968 and the wife was born in 1970. From their affidavit materials, it appears they commenced dating in 1989 (when, of course, they were both very young). The wife says cohabitation started in 1990, and the husband says 1992. The wife’s affidavit material appears to be more cogent, but Counsel for the husband was correct to say that that difference is of little moment now. The parties married in 1996.
The parties were, despite strenuous efforts to do so, unable to have children. There was a lengthy series of interventions which must have been heart wrenching for them both, and I note that in one of her affidavits the wife deposes that the husband was supportive throughout the many endeavours by way of IVF and further in her difficulties in conception more generally.
In 1997, the parties bought the matrimonial home, where the wife still lives, at B Street, Suburb C. The purchase price appears to be $135,000, although there is a dispute as to who provided the deposit and as to its amount.
The husband worked long hours throughout the relationship. He has deposed to working from 5.30 am to 6.30 pm and many weeks six days per week. Although the wife takes issue with the amount of Saturday work, she conceded in her evidence that he was always a hard worker.
In about June 2010, the wife, who was then working and had worked for some years for Employer F, was the subject of a sexual assault by a co-worker while in Perth, Western Australia. She was subsequently paid $131,250 as compensation from the pain and suffering arising from the assault (the deed of release was exhibit C1 and is dated 14 April 2010). She must have had some legal expenses arising out of the various proceedings referred to in that deed. The net figure was applied to the parties’ mortgage, but it seems to be common cause that within the next two years, sums not dissimilar at the very least to the amount paid to the wife by way of settlement were run up again against the mortgage so that it was back to, essentially, the same figure it was before. Each party accuses the other for being responsible for these increases in payment.
In 2011, the wife had a back operation/spinal fusion. She moved into the back room of the matrimonial home upon her return from hospital. Although there is a dispute as to why this occurred, the parties never, in fact, regularly slept together thereafter if at all. The husband has asserted that sexual intimacy between them had ceased in 2010, before the time of the relocation of the bedroom. The wife says sexual intimacy continued until 2016.
From 2011 onwards, the husband took over the payment of monthly bills. There is dispute as to whether the amount he extracted from the wife’s pay (a matter to which I shall shortly return) was commensurate with the expenditure actually incurred.
The wife has continued to receive regular monthly payments of wages from Employer F. The circumstance of these payments is not by any means entirely clear. As discussed with the parties during the currency of the trial, it seems more probable to me than otherwise that Employer F, as a self-insurer, and no longer being in production in Australia, may well have decided simply to continue those payments indefinitely for so long as the wife is incapacitated. The wife’s evidence that she continues to attend upon her psychiatrist and that of Employer F persuades me that she is still unable to work as a result of the incident in 2010. It seems more probable than otherwise that that payment will continue effectively indefinitely, given the length of time in which they have subsisted.
The parties also, from at least 2016 onwards, had in their care a young child, X. X was born in 2012 and has lived full-time with the husband and wife until final separation. There is an issue between the parties as to the extent to which the initiative of taking over the care of X was a joint one or not, but this is in effect bound up in the dispute as to the date of separation. Since shortly after separation, the husband has eschewed contact with X, apparently on the advice of his solicitor.
The wife, in addition to the other health difficulties already referred to, suffers from a number of other matters deposed to in her affidavit material (see paragraph 3 of the trial affidavit). As indicated, albeit that this is a matter to be considered under future needs, it seems reasonably likely that she will not work again
THE PARTIES’ AFFIDAVITS
Much of what the parties say in their affidavits, stripped of comment and exaggeration, is contained in the agreed or uncontroversial matters above. I have, of course, read the parties’ affidavits carefully and have regard to them. Much of the materials filed are directed to the endeavours by each of the parties to persuade the Court that it was the other who wasted funds. Similarly, much of it goes to the question of the date of separation. The tenor of the husband’s affidavit material is that the relationship came to an end in 2012 and that thereafter they remained living in the same house as friends. The tenor of the wife’s evidence to the contrary is that while they may no longer have been intimate, they remained a husband and wife.
It is perhaps appropriate to at least traverse some of the materials annexed to the wife’s trial affidavit. 1 is a series of documents from the Department of Health and Human Services. The first page is an instrument of authorisation dated 2 February 2017 whereby M Kalmas and Mr Kalmas received into their care pursuant to a Care by Secretary Order X (date of birth 2012). On the second page of that documentation (and the second and third pages appear to be continuous, so to speak), which from its context must have been 2020, it is asserted, “Ms Kalmas and Mr Kalmas’ relationship ended last year and Mr Kalmas no longer lives at the placement. However, Mr Kalmas still as a warm and loving relationship with X and X, with Ms Kalmas catch up with Mr Kalmas frequently”.
The extract continues, “X is currently on a Care by Secretary Order which will expire on 4th August 2018”. That is clearly some sort of error or anomaly, because the text of the document not only refers to events such as being in court on 9 September 2019 in the past tense and on the same pager refers to X as being 8 years old. The report noted that X was settled in the full-time care of her carer, Ms Kalmas, and on the third page it is asserted, “Even though carers Ms Kalmas and Mr Kalmas’ relationship has ended, Mr Kalmas prioritises his relationship with X, seeing her frequently”.
Exhibit 4 is a series of photographs allegedly taken upon the occasion of an assault by the husband on the wife. However they may have been caused, to my mind they show a badly grazed left knee and some injuries to a hand.
Exhibit 5 is photographs taken of the parties in 2012 and 2015, one of them being from a holiday where the parties were together in City G. Exhibit 6 is a series of joint invitations to the parties to attend events in periods following the husband’s asserted separation date in 2012. Exhibit 7 are various cards and greetings sent by the wife to the husband. They are not entirely unequivocal. The first page has a handwritten annotation, “To my husband Mr Kalmas (and yes, as far as I am concerned, you are still my hubby)”. It is not dated.
Exhibit 8 is a series of further photographs of the parties taken at family gatherings in 2013 and 2015 and 2016. All appear to show the husband and the wife in close and affectionate proximity.
Exhibit 9 is correspondence from the wife in the context of an accident compensation claim by the husband writing purportedly on his behalf in February 2019. Exhibit 12 relates to a loan refinancing in respect of the matrimonial home in the sum of $200,000 in January 2018, which was plainly taken out in joint names.
Exhibit 18 is a deed of family arrangement entered into between the wife as executor of her father’s estate and his former partner, Ms H and various other beneficiaries under her father’s will. It appears that the wife’s father died on 12 June 2018. The net effect of the deed of arrangement is that Ms H, who I note was born in 1940, has a life interest in the property and would live in it for her lifetime, following which it devolves to the remainder persons, of whom there are five, including the wife. The property was valued at $585,000 at the time.
In concentrating upon these particular annexures, I would not want it to be thought that I have overlooked or ignored any others. But these are the ones that strike me as being of particular significance.
THE EXHIBITS
I have already referred to exhibit C1, being the deed of release by which the wife was paid out by Employer F.
Exhibit A1 is a document showing that the husband sold 5,621 shares in Company J on 10 September 2019. These appear to have been purchases of shares by the husband as an employee, which were matched by identical contributions made by the employer between September 2008 and July 2018.
Exhibit R1 is a letter from the husband’s former solicitor to the wife. Inter alia, this asserts that the parties started living together in or around 1990, separated on 1 July 2012, and remained under one roof until about September 2019. The letter asserts also, “There are no children of the relationship. However, you and your client care for a foster child, X, by arrangement with the Department of Health and Human Services (DHHS). Since our client recently moved out of the home, X has continued to live with you and spends time with our client by agreement between you both”.
THE EVIDENCE GIVEN AND SUBMISSIONS MADE AT COURT
What follows is taken from my notes.
The Opening and Evidence of the Husband
Counsel commenced with an overview of the parties’ age and the date of the commencement of the relationship, noting that the husband said 1992 and the wife 1990. The parties had no assets. They married in 1996. The husband says separation was in 2012, whereas the wife says 2019 when the husband left the home. There are no children, but the parties devoted a lot of energy, time and money to fertility but with no success. The wife had a serious workplace harassment issue in 2010 and received $132,000 in compensation. She is still out of work, but there is no independent evidence as to her injuries. She earns about $80,000, but it is not known from whom. There is no prognosis as to her illnesses. The wife had superannuation in 2012 of $120,000, and that is still the same figure. She has total permanent disability benefit available to her from Super Fund K in the sum of $508,000, but it is not known if this has been claimed. The Department of Fairness, Families and Housing gives the wife money which is applied to X, but it is not known if this is a reimbursement or not.
Each party asserts wastage. The wife says the husband had a problem taking money from PayPal for gambling and drinking. The husband says the wife is wasteful and is gambling. The cohabitation was not less than 20 years, and the wife says it is 29 years. Post-separation contributions are disputed. The wife seeks to add back shares sold in 2019 for $40,000. The husband says that what should be taken into consideration is the sale price of $21,000. At separation in 2012, the husband had 1474 Company J shares and had got another 530 shares each year up until 2018. All have been sold.
The husband traversed the wife’s application to add back a considerable sum of money for a motorbike bought in 2004. As I understand the matter, this aspect of the dispute eventually dissipated, and it is accepted that the motorbike should simply be valued at $9,000 in the husband’s possession.
Counsel traversed the wife’s inheritance. The grandfather’s home has an agreed value, and there are six beneficiaries. There was a deed of family arrangement and perhaps the grandfather’s de facto has a life interest. The other five are the remainders. Counsel referred to the affidavit of Mr L, who is an actuary.
Counsel put the pool as constituting the matrimonial home with a value of $740,000, the wife’s inheritance at $81,740, per Mr L. Counsel accepted that the two cars that the parties own had no meaningful value because if sold, each would have simply to buy another. The mortgage is now just under $160,000 and the net pool was just under $700,000. The husband’s superannuation is now $375,000 but was $145,422 at separation. The husband seeks that $283,000 be paid to him, together with his cars and his motorbike. This would be 42 per cent of the pool excluding superannuation. He seeks an equalisation of superannuation as at separation in the sum of $10,000, which would represent a 54 to 55 per cent total to the wife. Counsel noting that the wife seeks significant add backs and then seeks a 70-30 division.
The husband was called and adopted his trial affidavit as true and correct. By leave, evidence was led in chief to respond to matters included in the wife’s trial affidavit filed the day before the trial itself.
First of all, there was evidence in some detail about the purchase of the motorbike. It is not necessary to traverse that, given the way that has transpired. Were it necessary to do so, I shall say that I would have found that the husband’s version of this being at least sufficiently a joint initiative, let alone one so many years ago, as to be now of no significance.
The husband responded to the wife’s assertions as to purchases of sex toys and underwear. He said this occurred in about 2019 when they were still living under the same roof. He spent $100 at the most.
The husband admitted taking over payment of bills in 2011, but denied shouting at the wife and banging the table in this regard. He had taken over in 2011 because they kept getting warning notices and things were not getting paid on time. The wife had to pay him half the bills. She had got her teeth done, which cost about $25,000-$30,000, during the very early stages of doing half the bills. This was about 2013 to 2014. It involved a couple of years of repayments and involved replacement of the wife’s top teeth. This was done at M Dentists. The $2,800 per month from her included $1,500 per month for her teeth. There were also IOUs. She borrowed $200 or so until her next pay. These were recorded in a pad was written down and placed on top of the computer.
In response to paragraph 20 of the last trial affidavit, the husband said he was not abusive. He agreed the wife lost a lot of weight in 2012 but was not sure if it was medication, stress or diet. He said he had never called her a dumb slut, a useless piece of shit or good for nothing. He had not accused her of cheating. He was at work 12 hours a day.
In response to paragraph 21 of the wife’s trial affidavit, he denied calling the wife a drug addict and indeed denied all allegations put against him. When asked what his attitude was to the wife’s mental health, the husband said he was concerned whether she was taking drugs to the right levels. He was not sure if she was abusing them. He saw mood swings. She would just go off without notice. She would be yelling and he would walk out of the room and she would calm down in five minutes. He was surprised she was taking 16 pills per day. He asked her, but she would get very aggressive and he would leave the room.
In response to paragraph 22 of the wife’s affidavit, the husband disagreed. He had a good relationship with the wife’s nephews who called him Uncle Mr Kalmas. When asked how many events he had attended after 2012, he said he attended special occasions. He stopped going in 2017 to 2018. When asked about an alleged assault of the wife’s mother, he said he had never raised a fist in front of the wife or the grandmother. He roundly denied the allegations of assault that the grandmother made against him. He said he had a great relationship with his mother-in-law and there was no anger or anything like that.
The husband was asked about paragraph 23 of the wife’s trial affidavit. He denied all allegations of assault. The wife slipped over because it was a wet floor. He had no contact with her. He was washing his car. He has seen the photographs annexed as 4 to the wife’s trial affidavit but knew nothing about them. She had just hopped back up and went inside. The photos were news to him. When asked if he had received a text message contained in 4, he said not that he could recall.
The husband was asked about the wife’s assertion that sexual relations continued until 2016, notwithstanding they slept in different rooms after her spinal surgery. He denied this and said sex stopped in about 2010. She moved into the back room in 2011 and separation was in 2012. He said they fell apart. They were friends, not lovers. They did their own thing. They had a good relationship as friends. DHS knew they were separating.
When asked about paragraph 25(d), the husband said that this was incorrect. He had met another woman he had known 30 years ago and they started dating. Counsel traversed the wife’s assertion that he had had three affairs. The husband said this was never three. He had no sex outside marriage before 2012. After 2012, he had been intimate with a former girlfriend, but this was in late 2019. He had no sexual activity between 2012 and 2019. The wife boxed up a lot of his stuff in about July to August 2019. He now lives on his own and intends to secure a rental property. He still has a garage full of stuff, but he said that once he was out, he was out. He still has a garage full of stuff to collect.
When asked about paragraph 44 and X, the husband said X loved him. She calls him daddy. He was left out of decisions. X had previously been with her auntie and needed somewhere else. Ms Kalmas organised X to come. There were DHS police checks. The case manager did not talk to him. Ms Kalmas gets the money for her. When asked what his attitude was to X, he said she was a lovely little girl. He would play with her. He said he is sad she was not in his life. She does not know the full story. X has some anger that he does not know if it was him. He calls her poohead, which makes her laugh, so he uses it.
When asked about paragraph 49 of the wife’s affidavit and his hours of work, the husband did not agree. They got married in 1996 and were in love. This continued until 2010. Following the incident at Employer F and medication taken by the wife, they separated. It grew into something different. They were closer than as husband and wife. Then there was paperwork because of various problems (my note of this is incomplete). In 2018 and 2019, it was toxic. He thought he had better get out. He did not think it would be so ugly. It had taken him time to get a rental.
Counsel put paragraph 58 of the wife’s affidavit to him, in which it was alleged that he would drink too much at family events and get into arguments. He denied this. He said he still has beer in the fridge from Christmas. He does not drink much.
The Husband Under Cross-Examination
The husband said, when questioned, that he had no legal or medical responsibility or moral responsibilities towards X. It was all the wife’s idea, and he was not consulted. He confirmed that X came to them in 2015 when she was three years old. It was every second weekend for four to five months and then every weekend. Counsel put it that X was with her great uncle and aunt, and the husband confirmed that she was with Ms N and Mr O. He agreed that X moved in permanently in April 2016. It was correct that X started primary school in 2017. There was a movie night, and he went with the wife. He had been to a father’s day breakfast. He appeared in a photograph in a school magazine. There was time between his mother and X. X had a good relationship with his nephew P. They went on trips as a family to Town Q and Town R. He had played in the park with X. They had remote controlled cars. They went to the basketball together. X called him dad, and he called himself daddy. He disagreed that they were a family until 2019.
Counsel traversed annexure 20, being texts passing between him and X. He had seen them in the affidavit. It could have been X. He has seen the message saying mum’s property, and he could hear the wife yelling in the background. He had sent a message, “Good morning, pumpkin”. The, “Hello sweetheart” message was December 2020. When it was put that he had a close relationship with X, the husband said of course. She was under the same roof as him. She had also called Mr O daddy previously.
He had seen the solicitor’s letter from Mr S dated 25 November 2019. He conceded that this said they were living together in 1990. When it was put that the third paragraph about X was true, he said, “I suppose so. We cared for her. The process is still going through the courts.”
Counsel cross-examined him about 1, showing carers as Ms Kalmas and Mr Kalmas. The husband said, “Maybe. I have read it. DHS spoke to me”. It was put that the DHS report suggested that the relationship ended in 2019, but he did not agree. He had met X and Ms Kalmas after separation. He had dealt with Ms T at DHS. He agreed there was an interview process in 2017. There were police checks. They were interviewed separately. He had not told DHS that he and the wife were separated.
When Counsel cross-examined about his assertion in paragraph 47 of his trial affidavit that the wife had unilaterally decided to undertake foster care, he said he did not know what unilaterally meant. The wife organised for X to stay with them. She was under the same roof every night. He stuck by his assertion that X coming into their care was entirely the wife’s initiative. X came to live with them in Ms Kalmas’ care. Counsel put it that time with X stopped when the Court case started. The husband said he was told not to go there by his previous lawyer. It was put that X still tries to contact him, but he does not answer. He agreed. He returned a call recently. She calls him daddy and will do so until she gets another figure in her life.
When it was put that he had given her a Christmas present in 2019, he said he supposed so. When it was put that he had sent a birthday present in 2020, he said that he could not remember. He stuck by the assertion that separation occurred on 1 July 2012. That was when they filed the documents with the Court and filled out their separation paperwork. He said the documents were completed on 1 July 2012. This was to state what date they separated. It was on the divorce application. It was filled out in 2012 and submitted in 2016. The divorce papers were filled out on 1 July 2012. They had a breakdown in their marriage and agreed this was the best way to do it. This would have been done in the kitchen, but he did not remember it. He was adamant that this was done on 1 July 2012.
Counsel then took the husband to the divorce application, which was annexure 5 to his trial affidavit. At paragraph 16(b), it was asserted that they had lived apart from 1 July 2012 to 13 October 2015. The husband did not know how they got this date. He then said, in an answer all-too-obviously made up on the run, that Ms Kalmas put in the date of 2015. He said they had just become good friends after that time. He did not move out for seven years. He still worked. He now earns $96,000 a year with overtime, and it has always been similar. There was no need to move out earlier because they were getting on well. He had given the documents to her to sign them, and they went missing. There was no need to move.
The husband said that the wife was abusive. The house was messy. Sometimes he had to walk on eggshells. She gambled and wasted money. When asked why he had not moved out, he said it was his house as well. They had good relations in one room to another. It became toxic towards the end. He did a lot of barbequing. He denied that the wife did the cooking. He said at times they rotated. They ate together sometimes but he did not eat regularly with the wife and X. She did the fancy cooking but he sometimes cooked for her. When it was put that the wife did the shopping, he said not much. She did not do all the cleaning. He could not clean the house when he was at work. Her family did come to visit. He had no idea what they did in the day. He used to come home and do the chores.
The husband agreed that the wife got $132,000 for the assault in April 2010. He said she wasted it in two years. It was from the joint account. He was at work if you looked at the times the withdrawals were made. Counsel put to the husband paragraph 51(a)(i) of the wife’s trial affidavit. He admitted he was concreting at that time. She organised the money, and it could have been $5,000. Counsel cross-examined about the renovations to the kitchen. The husband said Mr U came around. There were three family members, and the whole kitchen was done. He agreed that the wife had purchased a new motor vehicle, and when cross-examined about subparagraph (a)(iv), the husband said some of these took place after 2012 and after the money had gone.
Counsel cross-examined about paragraph 51(b) and the PayPal expenses. He said it was her account. They had one each. It was not his account. He uses his account to pay everything. She would use his account and have to pay him back. It was put that the joint account continued after July 2012. He said money would be paid into that but then transferred to her account. Counsel put it that the wife ceased access to the mortgage account soon after 2012 and got her own. The husband said he took charge of family finances. He got the bills back in order. They were entered in the book which was on the computer. The husband stuck by his assertion that the wife had spent $20,000 from 2017 onwards in gambling. He said he was a casual smoker. He denied being a member of the V Club. It would cost $5 for a card for a cheaper meal. He left the home in December 2019.
He agreed he had transferred $33,600 in August. The $6,000 cash he had withdrawn in September was for a bond. He agreed he had received $21,000 on 1 October 2019 and given $19,000 to his mum. That was the shares. The shares were bought in 2008 and were worth $21,000 when sold. The company matched him dollar for dollar and he had bought more shares. He paid his mother in cash. This had been given to them to buy a house. He agreed he had spent $7,500 between August and October 2019. He said he walked out of the house with nothing.
Counsel cross-examined about the alleged assault near the car. He said he was washing the car in 2018. She ran inside and was upset. She just had one of her tantrums and he had not assaulted her. When it was put that he had gone back to spend time with X, he said he called in on the way back from work.
In re-examination, Counsel tendered the share plan as exhibit A1.
The Evidence of Ms W
Ms W (as she prefers to be called) is retired and adopted her affidavit as true and correct.
Under cross-examination, she confirmed that she had spent time with Ms W. X had spent time with P and they got along well. She said she had a close relationship with Ms Kalmas and loved her dearly. She was a member of the Y Sports Club and there were reunions. And there were other reunions also so that she saw them. Ms Kalmas and Mr Kalmas visited her in Town Z. She moved to Suburb AA four years ago. There was every second Christmas in Town Z until 2017, which involved 19 people. They came for Easter as well. She stopped Christmas as there were too many people. This was seven years ago. The husband and wife would still come. X did not come often. Mr Kalmas and Ms Kalmas visited her in Suburb AA and X too. Her last visit to Suburb C was when the husband moved out. He had given her $19,000 in cash. She gave them $15,000 for the house. Mr Kalmas gave her $20,000 so that she can visit her twin brothers, who are 85. The $15,000 is so that she can visit them when they die. She had a hard life on her own in Australia.
The house cost $149,500. They had asked her to see it. She denied signing the statutory declaration annexed to the wife’s affidavit. She was not sure she had signed a statutory declaration. It was her money on deposit. She gave them a cash cheque. Counsel cross-examined about 27, being a Christmas card sent to Ms Kalmas by Ms W and her partner. She said it would have been Mr Kalmas and Ms Kalmas. It was just to keep the peace while they were living under the same roof. In later years, it wasn’t very pleasant. They argued in front of her. Mr Kalmas was up at 4.00 am for work. Things went wrong when she had the medication. Her family should have stepped in and dried her out.
Ms W conceded in 2010 she was in BB Hospital and Ms Kalmas came and got her. She had told her, “Mum, you will be sleeping down the back in my bed”. The wife went upstairs to the pool room. Mr Kalmas or Ms Kalmas had not told her that they were separated.
Counsel cross-examined about the assertion she had provided $30,000 for the parties’ wedding. She said she had sold her home. She was so happy to see them happy. She explained the expenditure in some detail.
There was no re-examination.
The Opening and Evidence of the Wife
Counsel indicated that he was content to rely on his case outline but that the aide memoir he had provided to the Court as to the pool superseded it. There was an add back sought of the $19,000 that the husband had given to his mother shortly after separation from the sale of shares. The husband’s superannuation is $473,000. So far as the wife’s inheritance is concerned, the wife says she has a one-sixth interest. The inheritance was late in the relationship in 2018, and should be treated separately and only considered under section 75(2). Separation was in September 2019. The wife had made significant contributions as a homemaker and in respect of the care of X. The wife receives some money from the DFFH and wants to keep the home. The husband earns $96,000, has superannuation and has re-partnered. The wife has $80,000 per annum and has the care of X. Both sides made allegations of wastage and the wife denies. The husband was profligate. The husband also spent a lot of cash around the time of separation. The wife’s settlement was received in 2010 and applied to the mortgage.
The wife was called and adopted her trial affidavit as true and correct. She did, however, correct that in paragraph 15 the assault took place in 2008 and the payment was in 2010. She also confirmed in paragraph 17 that the husband’s injury was before her payout. She also adopted her financial statement as true and correct.
Cross-examination started with what might be described as traditional endeavours to shut the gate. The wife confirmed that she believed she was truthful and said there were no exaggerations in her affidavit. None at all. Having established these benchmarks, Counsel unsurprisingly took the wife to some of the hyperbole in her trial affidavit. He cross-examined about paragraph 20, in which the wife had deposed that she was accused every day of cheating and insulted. The wife said that this is absolutely true. It was every single day. When she lost weight was when there were accusations of cheating every day. This was cheating with another man. The husband was always a jealous man. Being called a dumb slut was when she did something he did not like – for example, doing the concreting. This was not every day. She then modified her position and said the insults were not every day.
Her back operation was in early 2011. Then she started losing weight. She had spinal fusion. There was no nerve damage, and ultimately she made a full recovery. She felt she needed to lose weight. The doctor gave tablets, Duromine. This was an appetite suppressant. She lost one kilo in three months. Then she was given metamine, which was stronger. Then she lost weight. Also, she was on antidepressants. She had been through eight or nine. The harassment in 2008 has had a very significant effect. She still cannot work. It would affect anyone. When it was put that there were no medical reports, the wife said she sees a psychiatrist every four to six weeks. It is difficult to talk about.
She has been prescribed drugs, but initially they did not work well. She lost 27 kilos in one and a-half years. This was through exercise too. Once she started losing weight, after nine months, the tablets were stopped. She moved to a separate bedroom after her back operation in 2011. It was a better bed. She asked the husband to move in, but he liked his own bed. He went to bed at 9.30 to 10.00 pm and got up at 4.30 to 5.00 am and left for work at 5.30 am. He did not always work on Saturdays. He would do overtime. He was a good worker. She was not denying that. His elbow injury was real.
When he drank he was violent. This was not all the time. Sometimes he was a happy drunk. He has to get what he wants and gets upset if not. She said she did love him. They were together for 30 years. She was made to feel worthless. She was made to feel she could not get anyone else, but she loved him anyway. It’s hard to explain. She was made to feel there was nothing else out there, so she might as well stay. She defended him to her family, but now she feels like a fool. She put on weight. That made him happy. She did not feel good. That’s why she lost weight. He was violent towards members of her family, but she still wanted a relationship with him. He had formed a new relationship with Ms CC in 2019. She had dealings with her. She sent her an email in about May 2019. There was friction with Ms CC because she was sleeping with her husband. One part of the email was not true.
When taken to page 64 of the husband’s trial affidavit, the wife said it was not true that they were not together. She was upset and angry. The husband had told her she had called it off. The wife then gave a somewhat self-serving explanation of the message. She said there was no way she would take him back. It was his third infidelity. She had dropped him at a party and he met Ms CC. She went back and saw them together and became jealous. She had known for two weeks. The wife said that as a result of stress, she has illnesses now.
She has conceded that Mr Kalmas had been very supportive about the sexual assault. He had not taken her to appointments as he worked fulltime. He had never done any housework. Her family and friends did the housework. She did fly off the handle. This was natural. She could not say it was all bad just because of Mr Kalmas.
Counsel traversed the divorce papers. The wife admitted signing on 2 November 2016. They had not been prepared in 2012. It was put that the assertion in the divorce papers that they were separated between 1 July 2012 and 13 October 2015 was correct. The wife said it is but – and was at this point cut off by Counsel. She could not recall who prepared the documentation. The documents were never filed. It was never intended to file in Court. He knew she did not want a divorce. It was his way of getting what he wanted. In response to a question from the Court, she clarified that this was a form of control over her. He had not put pressure on her at all. He was at the pub. She went to pick him up and heard him say to two women, “I’m single”. Mr Kalmas was single to himself, but had not told anyone else. She was angry and drove to the police station and signed the divorce documents.
The wife confirmed that although she had asserted her mother was injured by the husband in her trial affidavit, there was no affidavit from that person. This was so even though she was in the same place the wife was during the trial. She had heard the husband denied the assault and said this was not true. He knows he did it. She could not remember the date or event. Her nephew and his wife were there and so was her brother. When the husband gets upset, he gets a look on his face. It is rage. Her mother stood in front and he grabbed her and she hit the ground. It happened between 2012 and 2019. She was angry at the time, but she did love him. She does not like him. She does not want him to get anything from the property settlement. When asked why she had not sought police help, she said there was a reason for this. She would have X taken away from her, and X is her life. I interpose and say that this answer was clearly made up on the run and was not in her affidavit and I find it is untrue.
The wife said that both of them wanted to foster X. She came to their home in 2015. The husband called her names, but not in front of X. Things were good when X was there. The husband had not assaulted X. She took to him like her own father. It was a joint decision about X. Towards the end, he was winner takes all. It was great for a while until he found other interests. He was a very good parent to her.
Counsel cross-examined about annexure 4 to the husband’s trial affidavit, being photographs of the matrimonial home in considerable disorder. The wife said that this was the room where she was living after 2012. She said this was the spare room. She was spring cleaning. She spring cleans once a year. The photograph at page 32 of the husband’s trial affidavit was X’s room. X slept with her and they used her room as storage. There were only two bathrooms. The bathroom at page 32 of the husband’s trial affidavit had only been like this for a couple of days.
The wife confirmed that she has an income from Employer F. She is on Work Cover. Employer F is self-insured. She sees her psychiatrist and their psychiatrist as requested. She is paid 80 per cent of her pre-injury wage. The $130,000 was for pain and suffering. When it was put that her superannuation scheme has a TBD payment of over $500,000, the wife said she understood this but was not aware of it. She was unaware it existed. She agreed that the $130,000 in 2010 was put to the mortgage. It was put that there were withdrawals of $63,000 between May and August 2010, but the wife said this was not believable to her. She confirmed that the withdrawal for the concreting of $10,000 was in cash. She gave $10,000 to one of her nephews. There was one invoice for the concrete pumping of $800. There were no invoices for the $15,000 produced in respect of the kitchen. These were at home. With the Triton, she had taken $20,000 and got a loan of $30,000 that she paid off. She has never had a PayPal account. He spent money drinking and gambling. He had an RDO every second Monday and would drink Friday, Saturday and Sunday.
Counsel cross-examined about 1 and the wife confirmed that the first page named her and Mr Kalmas as carers. When asked about the alleged statutory declaration from Ms W, being 2 there did not appear to be a clear answer. But the wife did say that Ms W would not deliberately lie.
In re-examination, Counsel asked about the photographs of the house showing a mess. She did not know when those were taken. It was because they were renovating the closet and everything came out. The wife confirmed that pages 3 and 4 of 1 were dated 2 April 2020.
Final Submissions by Counsel for the Wife
Counsel submitted that the husband asserts that X is not his responsibility, but the wife strongly disagrees. This is relevant to the separation date and relevant to the issue of contributions and relevant to credit. Separation was 2019. The evidence about X was clear. They were father and daughter and mother and daughter and clearly a family. The solicitor’s letter from the husband’s solicitors was clear, as were the DHS documentation. The wife was the primary carer while the husband worked. He has disavowed X for tactical reasons, and this was discreditable.
Counsel turned to the date of separation. The parties were not separated until 2019. They were pooling finances to pay bills. Each of them cooked. The husband’s date of separation was tactical. There are three matters relied on by the husband. The divorce application, the separate beds and the text message to Ms CC. So far as the divorce application was concerned, there was competing evidence, and the Court should accept the wife’s evidence. The application was never filed. The husband said it was filled out in 2012, which was implausible. The wife had signed this in an emotional state, but it was never intended to be filed.
The separate rooms was not determinative. The text message to Ms CC was sent when the wife was very distressed by the new relationship. This was when separation had occurred. The husband has denied infidelity and said that they were even closer after 2012 as friends. There was no evidence of anything occurring on 1 July 2012. Ms W said her son never told her they were separating. The photographs at 5, 8, 6, 7, 12 and 9 were all unchallenged. The Court should accept the wife’s evidence.
The husband was wasteful. He controlled the finances. He was abusive. The wife was not asserting a Kennon & Kennon (1997) FLC 92-757 case, but the abuse was relevant. There was a gift of $19,000 to the grandmother. There was also $33,000 withdrawn. There was also $6,000 spent on rent and bond and $7,000 on other matters.
Counsel referred to the authority of Bishop & Bishop (2013) FLC 93-553 and Bonnici & Bonnici (1992) FLC 92-272 in relation to the inheritance. Bonnici dealt with when the inheritance was received late in the relationship. The wife had a remainder interest only. The Court in Bishop had applied Bonnici at [47].
Counsel referred to superannuation. It was submitted that the equalisation proposed by the husband of $10,000 was not worth it. The assets should be assessed as at the date of trial. The wife wants to live in the house. The outcome she seeks will reflect her contribution of $135,000. The inheritance should be considered separately and the wife should retain it. It should be considered under section 75(2) but given very little weight, because it is a one-sixth interest. The $19,000 came from shares sold by the husband. The wedding gift was overtaken by time. The statutory declaration of Ms W should not give rise to a finding one way or the other. The wife’s orders were just and equitable. The husband would keep the add back of $19,000.
Final Submissions by Counsel for the Husband
Counsel said it was uncontroversial that the husband’s superannuation was worth $473,000. The share purchases documentation had been put in by consent. On 1 June 2016, the husband signed the divorce papers. Separation was 1 July 2012. The parties were in separate bedrooms thereafter. It was a very lengthy relationship, whether 2012 or 2019. Counsel conceded the letter from Mr S (the husband’s former solicitor) gave the start of the relationship at 1990, but the husband says 1992. Cohabitation had its ups and downs. The husband acted as if the marriage was separated in 2012 but said it remained amicable throughout. Counsel submitted that the family violence evidence was troubling. The husband gave direct answers and made denials. He had made appropriate concessions. He conceded what he had done for X. He had not, however, accepted being the child’s father into the future in 2015.
The wife clearly has strong views about the relationship with the husband even after 2012. The wife says the husband has been dominant throughout, but she signed the divorce papers at a police station. She had walked back from her position in her affidavit. Her disclosure had been abysmal. Section 140 of the Evidence Act 1995 (Cth) was relevant to the allegations of assault. There had been no assaults and no abusive language. Counsel referred to the statutory declaration of Ms W. Both the parties worked hard.
The Court should prefer the husband’s version of working six days per week and that he was sometimes home at 6.30 pm. The Court should not hold the husband’s treatment of X against him. The wife had not produced evidence from the DHS. The husband said he just went along with it. There was no Kennon claim and the allegations were not relevant as to credit. They kept a book in respect of paying bills. They had separate beds and no sex. The financial relationship with the wife continued on a businesslike level. Until X came along, each of them contributed. Whether it was as to a marriage or a separation under one roof, the contributions were equal. The wife seeks that she be apportioned as having contributed to the increases in superannuation and shares, but by way of contrast suggests the husband made no contribution to her inheritance.
The marriage ended in 2012. There are post-separation contributions. There had been equal contributions to the mortgage and the husband had brought his shares until 2012. The wife says the husband should get no cash at all. The worst case for the husband was his case outline of about 40 to 45 per cent. The wife should receive no more than 25 per cent of the current superannuation. There would be an equalisation if the separation was found to have occurred in 2019. The wife has over $500,000 available to her as a TPD payment.
SOME BRIEF OBSERVATIONS ABOUT CREDIT OF THE WITNESSES
The husband’s answers were initially direct and responsive to questions put to him in cross-examination. Nonetheless, as cross-examination continued, he became much more defensive. His insistence at first that the divorce papers were filled out in 2012 then led to him quite clearly making up an answer on the run as to the wife putting in the date of 2015. A number of his assertions run contrary to what might be described as objective evidence. His evidence, including his blanket denials of all controlling behaviour, violence and wastage need to be approached with caution.
Ms W was a very precise and clear witness. I have no doubt that she completed the statutory declaration to which reference has been made and has simply forgotten it by virtue of her advanced age. She was not clear as to whether she had ever filled out a statutory declaration. Nonetheless, she came across as a person with a genuine historical affection for the wife, and in the main I accept her evidence.
The wife, like the husband, on occasions made up answers and evidence on the run. It was clear to me that she was reluctant to answer any questions that she felt were antithetical to her interests and became evasive. Her evidence about the text message to Ms CC was entirely unpersuasive and unsatisfactory. She impressed me as being more emotionally labile generally than the husband, and as with him, her answers need to be approached with caution. As I have earlier indicated, I have regarded her answer about the failure to seek police help because of the fear that X would be removed from her as simply untrue. It simply was not in her affidavits and had all the appearance of being made up on the run.
These qualifications to the credibility of the parties, both of whom, as I find, have acted at times and in fashions inconsistent with the positions they now adopt, make the evaluations of the evidence somewhat difficult. I will do the best to set out immediately below what I think the march of events was.
MY FINDINGS ABOUT THE DISPUTED FACTS
These parties started dating in 1989, as they both agree. They commenced cohabitation in 1990. Not only is the wife’s version in her affidavit material more cogent on its face, but that is what the letter from Mr S, then solicitor for the husband, asserted in his letter. The wife, on this occasion, at least, is the better historian. The parties had nothing of any moment by way of assets but were both in employment and it would appear earned roughly the same amount of money. They married in 1996.
Thereafter, on dates not particularly clearly denoted, the parties had the great misfortune to suffer significant fertility problems. The wife had 32 miscarriages, an ectopic pregnancy, and failed to get pregnant despite multiple IVF endeavours. This must have been a harrowing experience for both of them, but of course more particularly for the wife. Nonetheless, I note that the wife concedes that the husband was supportive and caring throughout.
In 1997, the parties bought the matrimonial home for a price, it would appear, of $135,000. However much money Ms W may have contributed to the wedding, something now in my view of no moment, I found her version of the way in which she gave money to the parties to enable them to have the deposit for their home a convincing one. I think that she did provide $15,000 out of funds that were then available to her from the sale of her then-home. What is, however, totally apparent is that even if one takes her evidence at its highest, the question of repayment was put in an entirely aspirational sense. Her evidence rose no higher than was, “Pay me back as and when you can”. There was no term as to payment, and accordingly the debt became statute barred after six years (see Ogilvie v Adams [1981] VR 1041). That the possibility of repayment was wholly aspirational is matched by the march of events. The husband made no endeavour to repay his mother until 2019, after separation and some 22 years after the alleged debt was incurred.
This brings us to the question of the separation. In 2008, the wife had the great misfortune to be sexually assaulted at work while she was in Perth. This then gave rise to several legal proceedings and culminated in the deed of release in April 2010. She was paid $131,250, and this was applied to the parties’ mortgage. But within a couple of years, it had been drawn back down again. As I have indicated already, the figure must have been slightly reduced at the very least by legal fees. The wife has retained payments at 80 per cent of her former salary, which I presume must have been index linked. And as earlier indicated, these payments seem likely to continue effectively indefinitely.
The wife had the further misfortune to undergo spinal fusion surgery in 2011, and upon return from hospital moved into the spare room which was better attuned to her back condition. It is said by the husband that separation then occurred on 1 July 2012.
The narratives of both parties, in my view, present difficulties. There is no doubt that in 2016, first the husband and then some five months later the wife filled out the divorce application. The husband is clearly wrong to suggest that it was filled out in July 2012, because the reference to 2015 is otherwise nonsensical, and I have already indicated that I reject the husband’s evidence made up about that on the run. Equally, however, the wife’s assertion that this was merely some form of coercive emotional blackmail on the husband’s part is one I simply do not accept. It is inherently unbelievable, and her evidence given about it was unpersuasive.
What I am inclined to accept is that she executed the document in a moment of emotion. It was executed some five months after the husband’s execution, which suggests a complete absence of common intention. If they had really intended to divorce, they would have signed at much the same time and acted on it.
While the wife’s assertions suffer from the difficulty that she signed the divorce papers at all, those of the husband likewise have their difficulty. The husband has asserted that sexual intimacy ceased in 2012 and the wife has said, rather faintly and only in passing, that relations continued until 2016. There was no detailed cross-examination by either Counsel about this aspect of the matter, something about which I confess I am grateful. It might be thought that given the terrible difficulties the wife had had in her gynaecological health, the sexual assault in 2008 and the discomfort of a serious back problem in 2011, that her libido might have been likely to have been affected in any event. I am not able to make any conclusive findings as to when all intimacy ceased between the parties, but plainly it was significantly diminished after the back injury.
The husband’s endeavours to explain away the joint initiative to take on the care of X are completely unpersuasive. It was not what his former solicitor said in exhibit R1. He did his level best to suggest that as it were, X was brought into the household by the wife at her own sole initiative, but that he, both naturally but to an extent out of the goodness of his heart, took over a father’s role. He sought to explain this away and suggested that X would soon adopt a new father figure, but this does him no credit. He has ceased his paternal affection to X and attention to X as a result of legal advice. The only sensible inference is that this was designed to buttress his position in his case. This heartless abandonment of the child does him no credit, but I should make it clear that it does not achieve weight in the financial outcome, save to the extent that he has failed to provide for X since separation. He is not to be punished for taking a course of conduct which, in my view, suggests he would pay far more regard to his wallet than to his heart.
It is quite plain from the DHS documentation that the application to have X was a joint one and it is plain that it continued as a joint initiative throughout until separation, and indeed for some time thereafter until these proceedings were commenced. X calls him daddy and he called himself dad. Plainly, this was a joint initiative.
Furthermore, the photographs tendered by the wife from time to time showing the parties at various social events suggest in the strongest terms that the relationship continued. The husband would have it that this is consistent with his position that in some fashion, the parties took what was apparently on his version of events something akin to a conscious decision to separate under one roof in 2012 but continue as friends, rather than as husband and wife. Some of the wife’s material, as earlier indicated, is itself equivocal. The message I have referred to earlier suggests some ongoing question as to whether or not the husband was indeed still married to her.
The interesting point is, of course, that having said that they were separated under one roof, the husband was adamant that he was not unfaithful until 2019 when he resumed a new relationship with an old acquaintance, Ms CC. If they were truly separated, there was no earthly reason why he would not have engendered another relationship in the preceding seven years. The wife has deposed that he was a sexually active man (albeit with himself, subject to her assertions of two earlier infidelities about which I am unable to make a finding one way or the other), and one would have expected this to have occurred. The husband’s vague assertions that the wife took other partners were not pressed, and mercifully so.
It may well be the case, as the wife at one point even seems to suggest, that the husband may have thought of himself as single but not told anyone. It may well as I find be more particularly the case that the wife remained more in love with the husband than he did with her.
The facts about this aspect of the matter are very far from clear, and it is no easy matter to decide exactly what one should make of it. In the end, however, I have no doubt that each of these parties has fastened upon their asserted dates of separation with a very keen eye to the tactical advantages it will give them in this proceeding. Each of them wants as much from this property settlement as they can possibly get, and the husband’s desire to have 2012 springs from the exclusion of a substantial proportion of his superannuation, and the wife’s desire to have 2019 reflects an equal desire to get that back in.
It should be noted that so far as household tasks were concerned, I entirely preferred the evidence of the wife, which was given with conviction. The husband, on his own case, was working very long hours five or six days a week and often six days a week. The wife was not working. She plainly did the bulk of the housework, as she says. So far as the renovations are concerned, there is no persuasive evidence as to who did more one way or the other.
This brings us to the issue of wastage. Each of these parties would have it that the other alone was wasteful. I note that there is no challenge to the fact that the wife is a heavier smoker, but to elevate this to a major question of wastage is, in my view, misconceived. As an addiction, it is unfortunate and a matter for sympathy rather than criticism.
I have no doubt that the husband was more the dominant character in this relationship. What the wife says is entirely consistent with their demeanour in Court. I note that the parties’ finances remained co-mingled, albeit in a somewhat strange way after 2012. I accept that the wife had not managed the household finances well and that the husband stepped in and took care of them. I also accept his evidence that he charged the wife half of the money she received each month but that at least for a period of time this was committed to repaying the wife’s dental expenses. It is unusual for the parties to have some sort of running ledger as between them but by no means unknown. They plainly represented themselves as a couple until very late in the piece.
If one were to look at this matter by reference to the definition of marital relationship relating to de facto partners, it is clear that there are some aspects that would favour a finding that the relationship continued until 2019 and some that would not. In the end, the matter is probably best addressed by the reference to first principles. Divorce requires the development of an intention to divorce, communication of that intention, and action on that intention.
In this case, there was plainly some discussion of divorce or the divorce application would not have been filled in. The divorce was never actioned, however, and in the end I think this was just part and parcel of the changing relationship between the parties over time. It would seem as though things were good until about 2010 and then became worse up until 2012. Thereafter, the parties, according to the husband, got along much better. The wife may well reasonably have thought that the marriage was simply continuing in a slightly modified form. Things then got much better when X came on board. That is the wife’s evidence, and it was not seriously challenged. It was the husband’s evidence that things only became toxic in 2018 and 2019. In my opinion, the Court should assess the date of the separation as 2019. The wife’s emotional outpourings to Ms CC are typical of her somewhat florid personality, but they are only one aspect of the evidence and not in any sense, in my view, decisive.
I have diverged from the issue of wastage and should return to it. The husband, as I indicated, tended to somewhat dominate in the relationship. I think both these parties have gambled and both of them have drunk a fair bit and spent money on themselves. The wife’s assertions about the husband’s sex toys show an over attention to detail of a marked order. I do not find the husband’s immediate post-separation expenditure to have been outlandish or absurd. He had to re-establish himself when he left with virtually nothing. He said once he was out he was out, and that evidence was convincing. In my view, while I have no doubt that both of these parties have spent moneys in a fashion they might now regret, it is quite impossible on the evidence to form a conclusion that is more probable than otherwise that either of them exceeded the other. I do not propose to make any adjustments for wastage.
Having made these findings, I turn now to the Court’s first task, which is to address the issues in Stanford v Stanford [2021] HCA 52.
Stanford v Stanford [2021] HCA 52.
The Court’s first task is to identify the legal and equitable interests of the parties and determine whether a property adjustment is appropriate nonetheless, in this case, as in so many, and as indeed envisaged by the High Court in Stanford, the basis upon which the parties conducted their relationship as a couple has radically altered and each of them seek property adjustment, albeit in very different terms. It is clear there should be a property adjustment.
The Pool
The pool appears to me to consist of the following uncontroversial matters:
(a)Matrimonial home, B Street, Suburb C, $740,000;
(b)Husband’s motorbike, $9,000.
The agreed liabilities are
(c)Home mortgage, $159,264.
The parties’ superannuation is
(d)Husband $473,000, wife $121,666.
I have not included the parties’ bank accounts, as these in my view of such small amount and likely, in any event, reflect post-separation outcomes. As indicated during the trial, I do not propose to include the parties’ cars, which are of very little value, and do not represent a realisable asset in any event.
The wife’s inheritance is an area of some difficulty. On any view of the matter, it arose very late in the relationship, based on my finding as earlier set out above that the final date of separation was in September 2019. It is, of course, an anomaly in the husband’s position that he seeks to include it, given that on his case it would have taken place some six years after final separation.
In the Marriage of Bonnichi, the Full Court observed at page 79,020, “The other party cannot be regarded as contributing significantly to an inheritance received very late in the relationship and certainly not after it has terminated, except in very unusual circumstances. Such circumstances might include the care of the testator prior to death by the husband or wife as the case may be or other particular services to protect a property”. Plainly, nothing of that sort occurred in this case.
In the more recent case of Bishop, the Full Court considered the case in which a Federal Magistrate had excluded an inheritance received in the 21st year of a 23-year relationship but had taken it into consideration under section 75(2) of the Act and concluded at [29], “This, in our view, was an approach open to him”. Here, the inheritance was received in the 28th year of a 29-year relationship. In my view, it is a matter that should more properly be considered under section 75(2) and not included in the property pool.
As the Full Court made clear in Bishop, each case depends on its own circumstances. Something that makes the inheritance all the more appropriate to be considered as a future resource and not as part of the pool are the particular circumstances of the bequest. What has happened is that the testator’s former de facto partner, who as I say is, I think, now 80 or 81 years old, has in effect a life interest in the property. Upon her death, the property will be sold and divided equally between the five remainders. This may give rise to a payment of well over $100,000, and indeed is likely to do so as prices increase, given that the value at present is $585,000. The trouble is it is not known with any certainty as to when this will occur. The actuarial calculations of Mr L have of course not been challenged and are no doubt correct according to the methodology he adopted. Nonetheless, they involve, on my view of the matter, an unrealistic scenario. This inheritance is not worth $81,000 to the wife at present. She cannot realise any of it. It is a contingent, albeit definite and defined benefit. In these circumstances, and without in any sense seeking to challenge the expert advice of Mr L, the more appropriate way is to exclude this from the pool but to take it into consideration as a value of not less than $81,000 as things presently stand and more likely in excess of $100,000 in the future.
The other matter in contention between the parties is the add back of the funds received from the sale of the shares which were given to the husband’s mother. The statutory declaration, which I have no doubt is not a forgery, has not been adequately explained by anybody. Iam unable to accord it any particular weight, as Counsel for the wife suggested. I think, having heard Ms W give her evidence, that she did indeed advance $15,000, as I have earlier indicated. What is entirely clear, however, is that this was not a loan. There were no terms as to repayment, and the question of repayment was wholly aspirational. It was not, in any sense, an enforceable debt after six years. That is all the more clearly indicated by the fact that the husband did not repay $15,000 but repaid $19,000.
The circumstances in which this occurred are poignant. At a larger level of what might be thought of as a moral obligation, it was certainly a very proper thing for the husband to do. His mother has indeed had a hard life, and these funds will enable her to visit her siblings in New Zealand, plainly something she could not otherwise afford, and even more poignantly return for their funerals – on the assumption, of course, that they predecease Ms W. I find no reason to criticise Mr Kalmas in any broader sense for this, but these were plainly funds generated during the marriage. While they were, as a matter of practical politics, his funds to deal with, they are plainly joint matrimonial funds and should be added back.
Contribution Issues
Albeit that this is a very significant matter in the context of the circumstances of this case, it can be dealt with shortly. Both these parties had nothing of any moment at the start of their relationship in 1990. What they have in 2019 and indeed now is entirely generated during the currency of their relationship. Both of them contributed in very significant ways. The wife concedes that the husband was a hard worker, and it is plain that at least from the time from 2008 onwards he was the only person actually going to work. Nonetheless, the wife has continued to receive an income not markedly different from that of the husband throughout and has the benefit, as I have found, that this income will continue. In my view, noting that the husband, as it were, evened up the expenses throughout the period from 2011 onwards, the only possible finding the Court can make is that the parties have contributed equally.
True it is that it would appear that the wife may have had the greater share of responsibilities in respect of X, but the husband undoubtedly contributed in that field also, even though he worked long hours. This is plainly a case where the parties’ contributions have been equal.
Future Needs – The Section 75(2) Factors
Although the wife’s future employability appears to be effectively nil, the fact is that she will have an income on an ongoing basis. It has been put that there is a TPD resource of over half a million dollars available to her, but the relevant documentation to support that thesis has not been given to the Court. The wife said she was completely unaware of it. This is scarcely a satisfactory outcome, as an extra half a million dollars would be an enormous resource. What, of course, is not known is whether or not the receipt of such a sum would extinguish any obligation on the part of Employer F to continue payments. In these unsatisfactory circumstances, and dealing with the evidence that the parties have put before the Court, I am not able to do more than note that one party has asserted that the wife has this resource available to her, but that I am not in any position to say what effect its receipt might have on the very valuable continuing income that the wife possesses.
The parties’ ongoing incomes are not substantially different, although I note that the husband has asserted, believably, in my view, that his capacity to earn from what he now does may decrease with increasing age, given the physical demands of the position. For at least the foreseeable future, I would be of the view that the parties’ incomes should be assessed as roughly similar.
The husband does not apparently propose to contribute in respect of the care of X at all, and since the child is not his biological child there does not appear to be any suggestion that he can be compelled to do so. I have rejected, of course, his assertions that X was, so to speak, an initiative of the wife alone. His failure to contribute, as I said earlier, like his failure to continue his relationship with X, speaks more strongly of his self-interest than of any compassion. It is to be hoped that he will resume his role in X’s life when this proceeding is over. Nonetheless, the wife will have the care of the child for at least another 10 years. She is said to suffer from certain difficulties, but these have not been explored in any great detail, and it is not possible for me to evaluate in any meaningful way whether or not the parental obligations will subsist after X achieves adulthood.
The wife’s health is poor. She suffers from quite a number of difficulties which are in her affidavit and were not the subject of challenge. The husband’s health apparently is essentially good.
In all the circumstances, in my view, there should be a 10 per cent loading in favour of the wife in relation to future needs. I would have assessed this as a higher level, but I have borne in mind the wife’s likely receipt of her inheritance at some point. This deals, of course, with the non-superannuation assets.
In respect of superannuation, it was the husband’s position that if the separation was found to have occurred in 2019, there should be an equalisation. That position is, in my view, unassailable in the circumstances of this case, and there should additionally be an equalisation of superannuation.
As earlier indicated, I have not been able to find that either of these parties was more wasteful than the other, and not only have I not included wastage in the pool (something I did not understand either party to suggest should occur in any event), but I have not given it any weight in the assessment of contribution.
CONCLUSION
In my view, a resolution of this matter that gives the wife 60 per cent and the husband 40 per cent of non-superannuation assets is a just and equitable outcome. The wife has expressed a keen desire to keep the family home, but to do this she has effectively sought that the husband obtain none whatever of the non-superannuation assets. Following the relationship of some 29 years, this, on any view of the matter, was an overly ambitious claim. A sixty-forty division of non-superannuation and an equalisation of the superannuation is, in my view, taken globally, a just and equitable outcome. I have prepared draft orders which give the wife the opportunity to pay the husband out (bearing in mind he keeps the motorbike and the add back) but have provided for sale in default. I will hear from the parties before making final orders.
I certify that the preceding one hundred and thirty-three (133) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 21 October 2021
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