Kandar & Kandar
[2021] FedCFamC2F 382
•17 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kandar & Kandar [2021] FedCFamC2F 382
File number(s): DGC 1084 of 2020 Judgment of: JUDGE BURCHARDT Date of judgment: 17 November 2021 Catchwords: FAMILY LAW- Property dispute after relatively short relationship of 7-8 years – husband making significant initial contribution to purchase of matrimonial home, which is the parties main asset – contributions assessed 57.5 to 42.5 per cent in husband’s favour – husband being substantially older than wife- husband’s future health uncertain – effect on husband’s capacity to work hard to ascertain- wife having sole care of the 14 year old child by different relationship – wife in secure ongoing employment – 60 to 40 division of non-superannuation assets just and equitable – parties to retain their superannuation. Legislation: Family Law Act 1975 (Cth) Cases cited: Stanford & Stanford [2012] HCA 52
Division: Division 2 Family Law Number of paragraphs: 65 Date of last submission/s: 21 October 2021 and 3 November 2021 Date of hearing: 3 November 2021 Place: Dandenong Counsel for the Applicant: Ms Bachetti Solicitor for the Applicant: Ravi James Lawyers Counsel for the Respondent: The Respondent is self-represented Counsel for the Respondent: Mr Healer for cross-examination ORDERS
DGC 1084 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KANDAR
Applicant
AND: MR KANDAR
Respondent
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
17 NOVEMBER 2021
THE COURT ORDERS THAT:
1.Within 60 days, the parties do all such acts and sign all such documents as may be required to put the property situate at and known as B Street, Suburb C in the State of Victoria being the whole of the property described in Certificate of Title Volume … Folio … (“the B Street, Suburb C property”) on the market for sale (“the sale”), on the following terms:
(a)The B Street, Suburb C property shall be listed for private sale with such real estate agent as agreed between the parties and in default of agreement, with such agent as nominated by the President of the Real Estate Institute of Victoria (“the real estate agent”);
(b)The listing price for the B Street, Suburb C property shall be as agreed between the parties, and in default of agreement, the listing price shall be as determined by the real estate agent; and
(c)The parties engage a conveyancer or solicitor to undertake the conveyancing with respect to the sale as agreed between the parties.
2.That upon completion of the sale, the proceeds shall be as applied as follows:
(a)Firstly, to pay all costs, commissions and expenses of the sale, including conveyancing costs;
(b)Secondly, to discharge the mortgage and any other encumbrance affecting the B Street, Suburb C property;
(c)Thirdly, the net balance to be divided between the parties so as to give effect to a 40%/60% split of the net non-superannuation assets.
3.In the event there is not an exchanged sale still on foot of the B Street, Suburb C property by private treaty pursuant to the above order within 120 days of these Orders, then the parties shall forthwith do all things necessary to cause the B Street, Suburb C property to be sold by public auction at the earliest possible date on the following terms:
(a)at a price to be agreed upon between the parties or nominated by the President of the Victorian Division of the Australian Property Institute or his/her nominee;
(b)at a reserved price agreed upon between the parties and failing agreement to be determined by the President of the Victorian Division of the Australian Property Institute or his/her nominee; and
(c)on completion of sale the proceeds of sale shall be disbursed as provided for in order 2 herein, save that the parties shall, prior to distribution of proceeds to them personally, equally pay and bear as and when they fall due all costs associated with the auction process.
Withdrawal of caveat
4.Contemporaneously with the sale, Ravi James Lawyers to do all acts and things and sign all such documents as may be required to withdraw, at the wife’s sole expense including any PEXA fees, the Caveat (…) with respect to the B Street, Suburb C property.
Arrangements pending sale
5.That pending the sale, the husband:
(a)Have the sole right to occupy the B Street, Suburb C property;
(b)During such occupation, pay all instalments pursuant to the mortgage secured by the B Street, Suburb C property, rates, all utilities, taxes and like apportionable outgoings of or with respect to the B Street, Suburb C property as and when they fall due;
(c)Keep the B Street, Suburb C property in good order and repair;
(d)Co-operate in all reasonable ways with requests by real estate agents and/or prospective purchasers including but not limited to:
(i)Providing keys to obtain access;
(ii)Doing all things necessary to facilitate access to the B Street, Suburb C property at all reasonable times and facilitating access for inspection without interference;
(e)Maintain the B Street, Suburb C property in a presentable condition so as to facilitate the sale including but not limited to presenting the B Street, Suburb C property in a neat and tidy condition at all times when the B Street, Suburb C property is subject to inspection; and
(f)Do all things necessary to facilitate a sale at the earliest possible time and shall refrain from doing or saying anything which has the effect of hindering or preventing an inspection or a sale of the B Street, Suburb C property being effected.
6.That pending the sale:
(a)The parties each hold their respective interest in the B Street, Suburb C property on trust; and
(b)Neither party shall sell, mortgage, assign, alienate or further encumber the B Street, Suburb C property without agreement between the parties in writing.
Section 106A Order
7.That in the event that the husband should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these Orders, then pursuant to s 106A of the Family Law Act1975 (Cth), the wife shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of the husband, and to thereafter do all things and acts as are necessary to give validity and operation to same and any expenses incurred by the wife in executing the 106A Order be reimbursed to her out of the husband’s share of the proceeds of sale of the B Street, Suburb C property.
8.Should the husband fail to comply with or otherwise fail to do all things required to give effect to these Orders, any additional expense/s incurred by the wife in executing the Orders on the husband’s behalf be reimbursed to the wife from the husband’s share of the proceeds of sale of the B Street, Suburb C property.
Joint account
9.Within 14 days of the date of these Orders, the parties do all acts and things and sign all such documents required to close the joint Bank of Melbourne offset account ending #... and divide the funds (if any) equally.
Husband retains
10.The husband is to retain his right title and interest in the following assets:
(a)His business, D Pty Ltd (“the business”);
(b)The trust, Mr Kandar Trust (“the trust”);
(c)His Motor Vehicle 1;
(d)His Truck;
(e)His Motor Vehicle 2;
(f)His Tipper Truck;
(g)His Freighter Trailer.
11.The husband is to indemnify and keep the wife indemnified in respect of the following liabilities:
(a)His ANZ Low Rate Credit Card ending #...;
(b)His ANZ Commercial Credit Card ending #...;
(c)His ANZ Commercial Credit Card ending #...;
(d)His motor vehicle finance with E Financial Services;
(e)His ANZ Chattel Mortgage for the Tipper Truck;
(f)His liability for the Freighter Trailer;
(g)His debt to the Australian Taxation Office.
Indemnity with respect to the business and the trust
12.The husband hereby indemnifies and shall keep indemnified the wife with respect to all liabilities in relation to the business and the trust (collectively “the entities”), whenever and however arising, including but not limited to all taxation liabilities of the entities or either party personally arising in connection with any interest, loan account, office or employment with respect to the entities.
Wife retains
13.The wife is to retain her right title and interest in the following asset:
(a)Her Motor Vehicle 3.
14.The wife is to indemnify and keep the husband indemnified in respect of the following liabilities:
(a)Her ANZ credit card ending #...;
(b)Her personal loan to Mr F;
(c)Zip Pay liability;
(d)Her motor vehicle finance with E Financial Services.
Omnibus Order
15.That unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:
(a)Each party be solely entitled to the exclusion of the other to all 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 divided equally and the parties shall forthwith do all such acts and things and sign all such documents as may be required to close all joint bank accounts;
(c)Each party forgoes any claims they may have to any superannuation benefits or other employment related benefits belonging to or earned by the other;
(d)Insurance policies shall remain the sole property of the owner named thereon;
(e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
16.There be liberty to apply in respect to implementation of these orders.
SCHEDULE:
Property Pool (excluding superannuation):
1.Matrimonial home $770,000
2.Wife’s Motor Vehicle 3 $14,300
3.Wife’s Gold Jewellery $10,000
4.Husband’s Motor Vehicle 4 $1000
5.Husband’s Motor Vehicle 1 $22,000
Total: $827,300
Liabilities:
1.Mortgage $240,000
2.Wife’s Hire Purchase with Motor Vehicle 3 $3,800
3.Husbands Australian Tax Office Debt $11,000
Total: $572,400
Wife’s 40%: $228,960.
Less Motor Vehicle 3: $10,500
Less Wife’s Gold Jewellery: $10,000
Wife’s Total: $208,460
Husband’s 60%: $343,440
Less Husband’s Australian Taxation Office debt: $11,000
Husband’s Total: $320,940
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 Kandar & Kandar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
This is a property dispute between a couple who were in a relationship for a relatively brief amount of time, even though there is a dispute as to the exact length of the relationship. The husband’s position up until the trial was that there should be a property division markedly in his favour based on contribution and future needs matters. The wife’s position, as ultimately put, moved from 55 to 45 per cent in her favour to an equal division of the parties’ property. The matter is complicated by the fact that the pool itself is not necessarily very clearly defined. It is further complicated again by the fact that following the end of the trial the husband has written several times to the Court indicating that he proposes in effect to walk away from the matter, leaving the wife in possession of all the properties and liabilities of both hers and his own. The wife opposes such an outcome.
Although as a matter of practical politics the Court can scarcely prevent the husband from simply abandoning everything that he owns to the wife, I propose to deal with the matter in as orthodox a way as I can. Given the circumstances of the husband’s apparent disengagement, I hope I may be forgiven for painting with perhaps a slightly broader brush than might otherwise be the case. I propose that the husband keep the various assets and liabilities that he has wholly engendered post-separation, and that the joint property of the parties be divided as to in the husband’s favour in the proportions of 60 to 40 per cent.
AGREED OR UNCONTROVERSIAL MATTERS
It should be noted that the husband has been self-represented for almost all of the proceeding, and he has filed substantial tranches of material which are by no means always easy to follow. Neither of these parties has put the history of the matter in what to my mind is a suitably comprehensive way. Nonetheless, the following matters are not in my view substantially disputed.
The husband was born in 1975, and the wife was born in 1983. The husband has three children by two prior relations, although the dates of birth of the children (all of whom are adults) are not given. The wife has two children: Mr G, who is described as 19; and X, 14, of whom I gather X still lives with the wife.
The parties met in 2011 and commenced cohabitation for the first time in 2012, when the wife, who appears to have lost her lease on the rental property in which she was previously living, moved to a premises that the husband was renting in Suburb J. Although there is disputation as to exactly what was going on, it is clear that the wife moved out for some period of time in about mid-2012, but the parties obviously reconciled because they married in 2013. They separated on 26 June 2019.
Although there is a measure of dispute about it, the husband’s health has plainly not been perfect throughout the time of the relationship. He suffered a wrist injury in 2016. He has had ongoing and difficult problems with hernias, and indeed, is due to face a third hernia operation in December 2021. In 2019, he was diagnosed with follicular lymphoma, and although it is not entirely clear, he appears to be under an ongoing course of treatment which will likewise finish in about December 2021. It seems he must be in remission, although this is an incurable disease which will reoccur at some point. There is no medical evidence that gives any significant indication as to his prognosis. He, himself, is convinced that he has an incurable cancer and is terminally ill, although as I repeat, such medical evidence as there is (he has appended a number of medical reports to his own affidavit, but the treating practitioners were not called to give evidence) does not indicate with any particularity what the prognosis is going to be.
The husband started a business as a tradesman in 2006. He has asserted he was a fully qualified tradesman by the time he was 19. This appears to have gone well until his various illnesses and difficulties. He more latterly commenced working as a truck driver. As at the time of the trial, his brother was driving a Truck and together with a trailer that he had bought, pursuant to chattel mortgage and hire-purchase, matters to which it will be necessary to return.
The wife was throughout the relationship, employed in managerial/administrative tasks. She completed a finance qualification in 2021 but has deposed that she does not propose to work in that capacity.
It seems that all of the children may have lived with the parties for at least part of the time, but as I say, the only child presently living with either parent is X, who lives with the mother.
Although there is a significant dispute as to whose idea it was, and how far the matter had gone before the relationship took wing so to speak, it is clear that the parties did buy land and build a house at what is now the former matrimonial home, at B Street, Suburb C. The land appears to have been bought in 2011, and the build was complete by about June 2013. This has an agreed value of $770,000.
THE PARTIES’ AFFIDAVITS
As indicated, the parties have filed very extensive affidavit material. Much of it, most particularly that of the husband, is not easy to follow and consists merely of introductions of voluminous annexures. It would be more profitable to concentrate on what the parties said at Court.
THE SUBMISSIONS MADE IN EVIDENCE GIVEN AT COURT
What follows is taken from my notes. It is not a transcript, but of course, records matters I found significant.
THE OPENING AND EVIDENCE OF THE APPLICANT
Counsel opened the case in some detail. She traversed the scope of the pool, which was said to have a total net worth of $829,223. It was submitted that cohabitation was from early-2012, followed by marriage in 2013, and separation on 26 June 2019. The net pool was said to be $749,000, and the superannuation of the parties jointly $79,631. There was a dispute as to the value of assets and there was a query of the husband’s business, which had no employees and in respect which there was no valuation. Counsel indicated they had valued the key assets, which were the plant and equipment. The home had an agreed value of $770,000, and it was agreed that the husband paid the deposit. The mortgage and home were placed in the husband’s name, but the deposit was balanced by the eight-year relationship and the Court should find the contributions were equal. The wife was a full-time office manager and helped the husband from 2011 and throughout in respect of his business by doing books and administration. The parties kept their finances separate, so there were no joint accounts. The husband paid the mortgage, and the wife paid the household expenses and bills. Both parties had children from prior relationships. The wife cooked and cleaned and attended to the household. The wife was the primary carer, but no adjustment in respect of this was sought. The wife is 38 and the husband 46. The wife is in good health and is employed as a manager, earning $84,500 per year. She has a 14-year-old daughter living with her who spends no time with her father, and in respect of her, $8 per week child support is paid. The husband had a cancer diagnosis in 2019, but there is no clarity as to his diagnosis. The husband has been employed as a tradesman after separation and then a truck driver. He bought a Truck and associated trailer in late-2020. There should be no section 75(2) adjustment in the husband’s favour. The wife is seeking 50 per cent of the pool.
The wife was called and adopted her affidavit and financial statement as true and correct.
Under cross-examination by Counsel for the husband (who had been appointed pursuant to section 102NA of the Family Law Act 1975 (Cth)), the wife said she worked full-time during the marriage. She did not work more than 38 hours. She became a finance professional a few months ago. She is not thinking about working as a finance professional at the moment. Her experience has always been in customer service. She would go down to $50,000 to $60,000 per year if she worked as a finance professional. She said she had tried but it does not work for her. She indicated she could not see herself simply looking/pouring over spreadsheets. She had done the finance course during the marriage.
It was put that the husband helped with her fees, but the wife said no. Once he gave her a Christmas present and paid her fee. She had worked in his business. It was put that she worked no more than one hour a week. The wife said she did full bookkeeping, debt collecting and did the banking. She worked evenings and long hours on the weekends.
Cross-examination turned to the deposit on the family home. It was put that the husband paid $140,000. The wife said he paid $105,000 in three lots. There was one of $90,000, one of $10,000, and two further ones which all up came to $105,000. It was put that the husband paid all the mortgage payments, but the wife said this was not wholly correct. She has said they were paid by the husband and her, but mostly by him. He paid the house insurance. She said both of them paid for improvements. He had paid for the solar panels. He did not pay for all of the landscaping. It was put that the husband built the sunroom, but the wife said it was built by him and his friends, and together with herself, her son and his brother.
The wife confirmed that her son, Mr B, lived with them. It was put that Mr B did not get on with H. The wife said there was an intervention order taken out against the husband, herself and her son by his ex-partner, because they were living with her husband. The wife said she was the cleaner. Her friend came and helped a few times. At the start of 2013, there was a lot of debris left by the builders. The husband got a cleaner to help while they settled in.
When asked about her Motor Vehicle 3, the wife confirmed that she had one. It was put that the husband paid the deposit. The wife said that they paid the $10,000 deposit from the business account. The husband paid insurance once as a Christmas gift, but otherwise she pays the insurance on a monthly basis. The registration for the car was paid from the business once. Mr B had driven the Motor Vehicle 5. It was bought for $2000 by the husband and sold by her two years ago for $3000 in 2019.
The wife confirmed that she met the husband on a dating site in 2011, not late 2011. It was put the cohabitation started in February 2012. The wife said this was in January but more so in February. She had moved out on 28 July 2012 until 3 August 2012. She stayed with friends in Suburb J for four weeks. When asked about the end of the relationship in 2019, the wife said the husband paid for the holiday. She was happy to join. Her father did not join the holiday at all. It was put that there was no family violence during the holiday, but the wife said there was.
In re-examination, the wife indicated that the cleaner to whom reference had been made was employed for no more than six weeks.
Counsel withdrew at this point.
THE OPENING AND EVIDENCE OF THE HUSBAND
In opening, the husband said the relationship commenced in early-2011 through a dating website. The wife withheld her personal details. She was kicked out of her rental, and he offered her and her children to come and live with him. He had been to Court with her in actions against her landlord. She left the property he was living in. He had started his own business in 2006 and it was well-established. The wife did no bookwork until 2017. All his accounting was done through K Accountants and then another accountant. They lived separately until 2013 after he bought the house. He struggled with repayments. There had been a lot of mistakes by the builder, and it went to VCAT. He paid all the legal fees. He put in ducted heating and air conditioning before the house was built. He had debts on the house and with his solicitors. They married in 2013. He had a rental property in Suburb J and had to transfer his truck and tools. He noticed violence by Mr B who bullied his younger son. He kept paying the mortgage and was struggling to pay legal fees. He was struggling to get paid. In 2014, an incident led to an intervention order. There were Childrens Court proceedings with costs. He struggled to pay child support and legal fees. He worked seven days a week, 16 to 18 hours, while the wife was living debt-free in the house. There was no contribution from the wife. He changed his accountant in 2017 because of problems with K Accountants. The wife was working full-time and wanted to learn MYOB. He had to transfer it from L, with which he was comfortable, to MYOB. In 2018, a tyre exploded in his face, and he lost his hearing. There was no help from the wife, so he returned to work. He had broken bones. The wife wanted to be paid for working on MYOB. He transferred funds to her ANZ account. The car came out of his personal account with Bank M. He paid $16,500. The fuel card for the wife came from his business. Throughout the relationship he had been used. In 2016, he started medical checks. There were black spots in his spine from injuries. He was monitored in 2017 to 2018. A biopsy missed the target. He had hernia surgery in 2019 and lymph nodes removed. He was diagnosed with a medical condition. He had little choice but to work. The wife had just left. He did not work for about three months. The wife’s property is still at the house. She has refused to hand over mail from his post box. He has ongoing treatment for an incurable disease. The doctors say he should go on the Disability Pension. He worked for a customer to get a credit rating to buy the Truck and trailer. He thought he could use a driver, but COVID came. He is barely making things meet. His earnings are zero for the last two years. He has not paid the mortgage for the last two months. He does not have money. He owes $19,000 insurance on the trucks.
The husband was called and adopted his affidavits as true and correct.
Under cross-examination, the husband confirmed that he was hardworking and worked very hard in his business of which he was the sole director. His brother works full-time under a barter system for him. He is a trained tradesman and works when he can. He confirmed he was seeking 85 per cent of the pool. He has seen the wife’s case outline. It was put that there was an offset account with $60,000 in it, but the husband said that was before, it was probably $59,000 to $58,000. It was put that the balance now is zero, and he said he had not seen it for months. He agreed that there is $57,000 in the access facility. When asked how he had arrived at a value of his business at $10,000, the husband says customers call to value market values. When asked about tools and equipment, he said he had a truck which has tools and a crane. He also has a truck with a trailer. He has some diagnostic tools to read transport equipment. He has a few computers. He has heaps of tools and a full range of equipment. When asked about stock on hand, he said he had some but had not used it for 10 years. It is rubbish. It is useless as he is not trading as a tradesman. When asked about an insurance document for $50,000 in respect of his tools, the husband said this was for brand new tools. His are not. He has tools from his time as an apprentice until now. The computers are about eight years old. There has been no valuation of the business. The wife’s solicitors asked in September. They asked for a valuation of the truck and trailer. He refused access because they left it until the last minute and there was no Court order. The trucks are under heavy finance and have no value. He agreed that he had bought the Truck in around about 9 December 2020. Counsel tendered, as exhibit A1, the insurance quote to which I have referred. The husband confirmed that the purchase price of the Truck was $120,000. It was a chattel mortgage with no deposit. The chattel mortgage is $135,872. The truck was $100,000. This was the correct market value. He got this from trucksales.com. Counsel put it that a Truck was on the market for $170,000. The husband said that is what someone wants for it. It is similar to his truck. His truck has done 800,000 kilometres. Other Truck advertisements were tendered as exhibits A2 and A3. The husband bought the truck and the trailer separately. He bought the trailer in about August 2020 on hire-purchase. He put the hire-purchase agreement in the subpoenaed documents. It was put that this was not a hire -purchase agreement and was approximately $122,000. The husband said he would take Counsel’s word for it. He had bought it for $132,000 plus GST and then interest. It is worth $100,000. There was some damage to it as there had been a couple of accidents. He had not told the wife’s lawyer about the accidents. There is about $100,000 owing today on hire- purchase. The Truck owes about $110,000. The $100,000 value for the trailer is from trucksales.com.
The husband was cross-examined about his 1998 truck. He said it had a value of $10,000 and then said, “It is worth nothing really”. When asked about at truck worth $56,000, he said that it was not his truck. He had built his truck. He had put the body on it and the crane. He would not get $5,000 at auction. He is happy to sell everything and go on the disability pension. He prefers to keep the business running. He cannot work any longer. He has two more hernia operations and is struggling with fatigue. He has no secure income or future. Counsel tendered, as exhibit A5, an advertisement for a truck at $56,000. The husband said he bought his truck in 2010 and paid $12,000. The crane cost $5,000, and there were $2,000 worth of improvements. It is covered in grease and oil.
Counsel cross-examined about the husband’s Motor Vehicle 3. He said this was worth $1,000. It has a blown transmission and has not been registered for a long time. He has not driven it since 2014 to 2015. He has seen the wife’s RedBook value. It was bought before his relationship with the wife through his business.
Counsel cross-examined about the Motor Vehicle 1. This cost $22,000, but he had hit a kangaroo with $10,000 worth of damage about two to three months ago. It has not been repaired and is not insured. He accepted the wife’s valuation of her Motor Vehicle 3 at $14,300.
Counsel cross-examined about the wife’s alleged jewellery in India. He says she had two solid gold bangles. He had looked up online. Two rings were given in April 2014 by her father and family.
The husband confirmed that the business’ insurance has been paid in instalments of about $1,600 per month since June. He has a child support debt in respect of one child, H. He has not paid it because he cannot afford it. $10,000 worth of furniture was just a guess.
Counsel put it that the relationship commenced in about 2011, and the husband said it was 2011 at some time. Cohabitation at the rental in Suburb J was at about January to February 2012. It was put that the B Street, Suburb C property was bought after that. The husband said no. He had the consultants over and signed documents before she was even there. He bought off the plan. The land was not released for two years. He had paid close to $140,000 before the relationship. He had paid a $2,000 deposit when the agreement was signed in 2011. By May 2012, she had moved out. They did not start living together until they were married in 2013. She moved out in about May and came back again at April 2013. Counsel put exhibit A8 to the applicant. There was a diamond jewellery appraisal in January 2012. The husband confirmed this. Counsel cross-examined about an offer by Graham Donovan to act as a celebrant in July 2012. The husband said he did not know who that was. This was not something he had sent. She had made the enquiry. They were not in a relationship, and this was not the celebrant they used. When asked about an invoice from Mr N about a wedding dress, he was unable to say. Counsel cross-examined him further about the deposit paid on the property. The husband said he worked seven days a week often. He worked up to 18 hours per day. The wife did nothing but looked after her two kids in the house. She paid for nothing and lived debt-free in his house. When asked who cooked the dinners, the husband said some days they had takeaway, some days he would make it and some days she would make it. The wife got a cleaner and paid cash for her once every two weeks since 2016.
Counsel put it that he had told the wife to pay for household services. The husband said no. She took it on herself to do what she wanted to do. He conceded that the wife paid a portion of the water, gas and electrical bills. Counsel put it that the wife did his bookwork. The husband said she did this for her own benefit. She did not start doing the books until 2017 and he had swapped to her program. Before that, she had nothing to do with it. Counsel cross-examined about exhibit A9 on the information requests in relation to his 2016 tax. The husband said this was helping, but she was not working for the business.
The husband confirmed that he had been diagnosed with cancer in 2019, although he conceded he was not a doctor. He said he had earned nothing for the last two years. When it was put that he had nonetheless been able to buy the truck and trailer, the husband said this was a huge liability. He expected to try and make a living. He has been driving trucks occasionally, but his driver is driving full-time for him. He covers for his brother. He buys him things from the business but is not paying him. He has not defaulted on the chattel mortgage. Counsel put exhibit A10, being the Kandar Trust financial report from the 2020 tax year to him. He said the $120,000 depreciation was for the truck. Exhibit A11 was the outstanding balance on the chattel mortgage, but the husband said it might be about $110,000. The chattel mortgages are in the name of the trust. The husband confirmed that he had not received government grants during COVID. When taxed about the quantum of his sales, he said there are some debts which are up to three years old. The business is still working. He has the trucks to pay for. He has done the trust return for 2020 to 2021 but had only provided his personal tax return.
There was no re-examination.
The affidavits of Ms O and Mr P and Ms Q were formally read. The deponents were not required for cross-examination.
FINAL SUBMISSIONS BY COUNSEL FOR THE WIFE
Counsel confirmed that she seeks an order for sale of the matrimonial home and a 50/50 division of non-superannuation assets. The Court should accept the wife’s values. The husband put nothing on values and was just guessing. He had frustrated valuations and an adverse inference should be drawn. His business was not valued, but the Court should assess his plant and equipment. The value should be assessed as at the date of trial and should include post-separation purchases. The husband did make an initial contribution, but this was $105,000. Counsel referred to the receipt and statement of adjustments (exhibit A7). The husband had provided no evidence that he contributed $145,000. The husband says the appraisal of the rings in January 2012 took place when the parties were not together, and there was a wedding dress ordered in June to July 2012. The balance of the initial contributions was offset by the wife’s contributions during the eight-year relationship. The contributions were equal. They have separate finances, but both contributed to the household. The husband paid the mortgage, and the wife paid the bills. The husband says the wife paid for nothing, but this should not be accepted. They both worked hard and contributed. The husband says he worked seven days a week, up to 18 hours. It is not plausible that he got no support from the wife. Her contributions should be given substantial weight.
Turning to the section 75(2) factors, the husband says he has had no income for the last two years. That he works through the business and has not defaulted on his chattel mortgages. He paid the mortgage on his own until the last two months. He bought the truck and trailer but says he has no income. The Court should accept the husband earned enough to live and pay his bills. No depreciation has been put through the business. He has cancer, but there is no evidence of its effect as he has not put on proof. The doctors were not on affidavit and there has been no cross-examination. This should receive very little weight. The husband says he has incurable cancer, but he is not a doctor. He is still working. He bought the truck and trailer after the cancer diagnosis. Counsel concluded by noting that the wife seeks an equalisation of superannuation.
FINAL SUBMISSIONS BY MR KANDAR
Mr Kandar submitted the Bank M account shows defaults on the mortgage. He had to split his accounts. There is no evidence the wife helped at all with the defaults. She was working full-time but did not contribute to payments to property. There is an application from the Child Support Authority for unpaid child support. The wife and her son had an intervention order. He could not afford to pay child support and a lawyer. He defaulted on his child support. There is no evidence they helped while they lived debt free in the household. He has another $4,000 other debt in child support and Court costs because of the wife and provided no assistance. He had taken Company R to VCAT and had to pay lawyers. He paid for overseas air travel with airfares. His car was used to train the wife’s child. He had bought it but transferred it to the wife as it saved insurance. He paid the rego for her car. He referred to the ANZ Bank statements showing $200 per week being transferred to the wife from the business. He gave the wife a fuel card from the business. She had a business for 18 months and also says she worked for his business. He had struggled with debts through the whole relationship in part because of the wife and her child. There was no help with debts and there were defaults on the house. There was no major contribution by the wife to the house. She paid some of the utilities. It was not fair the whole time through the relationship. He is struggling with illness. The infusion treatment will last three years. The business is operating. He is trying to pay all his bills. It is all catching up and it is going to come to a head.
STANFORD & STANFORD [2012] HCA 52
The Court’s first task is to ascertain the legal and equitable interests of the parties and determine whether a property adjustment is appropriate. In this case, notwithstanding the difficulties of precisely defining the pool, it is apparent that the basis upon which the parties conducted their finances during the relationship has come to a complete halt, and both parties seek a property adjustment, albeit in very different terms. It is plainly just and equitable, there should be one.
THE POOL
The matters that are agreed in the pool are:
(a)Matrimonial home, B Street, Suburb C, $770,000.
(b)Bank of Melbourne mortgage access facility, $57,000.
(c)Wife’s Motor Vehicle 3, $14,300.
(d)Wife’s gold jewellery, $10,000 (taken as a concession against interest).
The husband’s business has not been valued. Given that it only ever consisted of the husband working for himself, in my opinion, it is more probable than not that it would have no goodwill value in any event. Its turnover is revealed by the 2020 figures shows expenses (leaving aside the chimera of depreciation) of approximately $55,000 against a net income of only $100,000.
The antecedent expenses, leaving aside depreciation, are of the order of $60,000 against net profit of $158,000. It was not on any view a business with sufficient income to generate any appreciable goodwill.
This brings us to the vehicles owned by the business.
The husband does of course possess his truck and trailer but these appear to be encumbered to their full value. I will exclude both the vehicles and their associated debts.
The truck was the subject of convincing oral evidence by the husband. He had bought it cheaply and, as it were, upgraded it, but this was all a considerable period of time ago. I will accept the valuation in his case outline of $10,000 as a concession against interest.
The Motor Vehicle 2, which the husband was quite content to show to the Court via his phone during the hearing, likewise I will accept at a value of $1,000 as a concession against interest.
Once again, the Motor vehicle 2 is conceded by the husband to be worth $22,000. I would say in passing that the various exhibits tendered by the applicant to try and prove the value of any of his vehicles suffered from the obvious deficiency that they are not the particular vehicles with which we are concerned. The Court is doing the best it can in the absence of any valuations. I will accept the husband’s value of $22,000.
The wife would wish to include the husband’s tools at a value of $50,000. There is no evidence as to what these would be worth in second-hand terms. The husband says that they have been amassed over many years. Unless he ceases work and are sold, they really have no realisable value. I will not include them.
The tipper body and Drop Deck trailer appear to have a combined value of some $200,000 on the husband’s figures, and $250,000 of those of the wife. That is well and good, but that is certainly encumbered by amounts greater than that. Indeed, it remains a mystery quite how the husband was able to obtain finance to purchase these vehicles, but the fact is that he has. They are plainly encumbered at last to the extent of their value and it is probably inappropriate to treat them as anything, at best, than an ongoing resource which may assist the husband to produce income if he continues to trade.
The amounts of money in the parties’ bank accounts are sufficiently small, in my view, to be irrelevant, and in any event, are likely to reflect post-separation contributions.
Neither party has provided proof of the value to their household chattels, and I do not propose to allot anything in respect to those as they are notoriously valueless on resale.
The liabilities of the parties are:
(a)The Bank of Melbourne mortgage, $240,000.
(b)The wife’s hire purchase on the Motor Vehicle 3, $3,800.
(c)The husband’s Australian Taxation Office debt, $11,100.
(d)Insurance for the husband’s business, $19,000.
There is no evidence that demonstrates how much of the $19,000 insurance debt arose during the relationship, but since I understand it is to reflect current insurance I assume it is a post-separation debt. I will exclude it from the pool. Further, an alleged child support debt seems historical and has nothing to do with the wife. I am not satisfied as to the extent to which it is being enforced in any event.
The parties’ superannuation is respectively:
(a)Wife’s superannuation total, $48,999.
(b)Husband’s, $30,631.
THE ISSUE OF CONTRIBUTIONS
Much of the strenuous contest in this case was about the question of contribution. As earlier indicated, the husband’s position was that the wife in truth contributed nothing at all and lived parasitically and rent-free in his premises throughout the entirety of the relationship. He was adamant that the property had been bought, (or at the very least, the process in which purchase commenced) before the wife came on the scene. The wife was the better witness. She was composed and direct, whereas the husband, whose emotions are clearly, very vividly engaged by his current circumstances, including this trial, tended to present as more florid and exaggerated. It seems that the parties met in about 2011, as the wife said, through a dating agency. It is, of course, possible that the appraisal of rings and the consideration of the celebrant and the like in 2012 reflect a view of the wife that the husband did not share, but it is plain that cohabitation commenced in early-2012. As I find, the husband had indeed already commenced to investigate the purchase of land before this, but equally clearly there is no doubt that the parties discussed what they were going to do and embarked upon it in the context of what was then a new, and no doubt generally satisfactory, relationship. The husband put in the deposit of not less than $105,000. As with a number of controversies between the parties, the resolution of a just and equitable outcome in this case does not require precise findings about some of the matters which have exercised the parties. I do not think it matters whether the husband had already started to investigate the purchase of land and having made a small deposit prior to the wife coming on the scene. On any view of the matter, the property was not completed until mid-2013, and the wife was only absent for about four weeks from January 2012 onwards. The husband’s desire to paint the wife as absent until the start of 2013 is no doubt a reconstruction in his own mind, but it does not accurately reflect the facts. I have heard the wife’s evidence and I believe her in this regard. Nonetheless, the contribution made by the husband was a significant one. They would not now own the only significant asset they do own without it. It must be given weight.
Once the relationship started, both of the parties had children living with them at least for a while. Put shortly, I accept the wife’s version of the evidence as to the household duties. The husband’s endeavours to play down the wife’s contribution at every turn even prevented him from conceding what must surely be obvious. With him working very long hours, often up to seven days per week, it must have been the wife who looked after the household and did the cooking. Nonetheless, the parties never comingled their finances to any significant degree. The bank records the husband has put in evidence do indeed show $200 per week figures going into the wife’s account. It is no doubt the case that there was a measure of income splitting through the books of his company and various other benefits flowed to the wife from the business, such as the purchase of her vehicle and its insurance and the like. The calibration of contribution is not an accounting exercise, and the records are scarcely fulsome enough to enable it in any event. Necessarily, these things involve some calibration by way of the Court’s best general impression and estimate of the circumstances.
One thing that is curious, however, is that the wife, who was always making a decent income, seems to have had a large amount of money to spend on herself. The utility bills and the food for the household simply cannot have been entirely commensurate with her salary. One aspect of the husband’s evidence that I found convincing was his assertion as to his expenditure on overseas travel, and I suspect that he may have contributed slightly more to the general financial disbursements of the household it gave rise to. I accept, however, in the end that the only finding the Court can make in the face of the evidence is that the husband paid the mortgage, and the wife paid the bills. The attempts by each of the parties to quibble with this general proposition just reflects their desire to obtain a better outcome in the proceeding.
This was not a relationship of 20 or 30 years. It was a relatively short relationship. The wife got the benefit of moving into rent-free accommodation at the time when she clearly needed it.
I do not accept the husband’s demonisation of the wife’s position. Although, as I say, one is left with the lingering suspicion that he may have contributed slightly more, during the relationship it seems to me reasonably apparent that the parties each did their best, bearing in mind that given the husband’s very lengthy working hours there would seem to have been a relative absence of the ordinary consortium of marriage.
In the circumstances, noting the length of the relationship and noting the very significant benefit of the initial contribution (which amounts to approximately 20 per cent of the total net equity in the matrimonial home, which is the parties’ only really significant asset) I would calibrate the contributions as 57.5 per cent to the husband and 42.5 to the wife. It should be noted that the wife is not suggested to have a substantial savings hidden away or undisclosed and given that this is so and that there is no suggestion of wastage, it is apparent that the wife must indeed have spent her earnings to the family’s general benefit.
THE FUTURE NEEDS ISSUES
Husband is substantially older than the wife, and on any view of the matter, his health faces considerable difficulties. The evidence shows that he is to have further hernia surgery in December of this year and appears to follow a by no means wholly successful series of antecedent such operations. The husband’s mental health, as is evidenced by his style of speech in the Court and more particularly his style as a correspondent subsequent to the Court hearing, suggests that his mental health may be under strain. Furthermore, and accepting as I do the matters going to weight relating to the various medical reports that the father has tendered as annexures to his affidavit material, it does seem clear beyond doubt that he has lymphoma, which has been described by one of the doctors as an incurable disease which may return any time. Doing the best I can, I find that Mr Kandar has an incurable illness which appears to be in remission at the moment but will probably return. What I can say is that it is not clear, because Mr Kandar has not put the evidence before the Court, quite what the prognosis would be if the condition did indeed recur.
The wife has the care and support of a 14-year-old for whom she has to provide. She is in very secure, long-term employment, earning around $84,500 per annum. Her health appears unremarkable. The husband’s earnings, assuming he continues his business and does not, as he has threatened, simply walk away from it, would appear to be somewhat less in the order of about $55,000 to $60,000 per year. With all the usual attendant benefits of self-employment, such as expenses paid through the business, such as his vehicles and so on, it might be thought that his overall earning outcome is not markedly different to the wife, albeit probably slightly less.
The position thus, as I find, is that the husband’s earning capacity will be, at best, less than that of the wife. Her income, unlike his, is secure. The husband’s health will more probably than not, at some point, either prevent him working or significantly reduce his capacity to do so. The wife on the other hand has the expenses of rearing her son.
In these circumstances, I assess that the husband should have a further loading of two and a-half per cent in respect of future needs.
CONCLUSION
In my view, an outcome that provides for the sale of the matrimonial home and the division of the net proceeds, 60 per cent to the husband and 40 per cent to the wife, is in all of the circumstances just and equitable. Plainly, the husband will have his business, but this was never a massive earner, and his chattels are of either relatively little value or are encumbered to their full worth. I have attached a schedule showing the pool as I have found it and the calculations that would give rise to a final outcome. The wife has sought an equalisation of superannuation, but in circumstances where the relationship was relatively brief, and the equalisation of superannuation was put into context of an equal division otherwise, I think it is just and equitable as part of the overall resolution of this matter that each party retain their superannuation.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 17 November 2021
0