KROLL & PROCTOR

[2019] FCCA 949

FEDERAL CIRCUIT COURT OF AUSTRALIA

KROLL & PROCTOR [2019] FCCA 949

Catchwords:
FAMILY LAW – Property dispute – husband seeking 60/40 division in his favour – wife seeking 90/10 division in her favour – significant ill-feeling between the parties, largely arising from the husband’s dilatory work history and general failure to contribute – clear majority of financial contributions made by the wife – wife also making greater contribution to the running of the household and the upbringing of the children – contributions assessed 80/20 in favour of the wife – husband not disclosing significant common law/WorkCover claim – 5 per cent adjustment to wife in respect of future needs.

Legislation:

Family Law Act 1975

Cases cited:

Kennon & Kennon (1997) 139 FLR 118

Kowaliw & Kowaliw (1981) FLC 91-092
Chang v Su (2002) FLC 93-117
Stanford v Stanford [2012] HCA 52
AJO v GRO (2005) FLC 93-218

Applicant: MR KROLL

Respondent: MS PROCTOR

File Number: BRC 12041 of 2017

Judgment of: Judge Burchardt

Hearing date: 6 and 7 February 2019

Date of Last Submission: 7 February 2019

Delivered at: Dandenong

Delivered on: 16 April 2019

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Mr Moisidis

Solicitors for the Respondent: Michael Smith & Associates

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

BRC 12041 of 2017

MR KROLL

Applicant

And

MS PROCTOR

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a property dispute.  Such disputes are often, unfortunately, attended by measures of both ill feeling between the parties and over ambitious claims.  This very dispiriting dispute involves both those qualities.  The applicant husband seeks that there be a property distribution 60/40 in his favour, and the respondent wife seeks a distribution 90/10 in her favour.  Both sides have, in my view, overstated their cases and exaggerated.  For the reasons that follow, I am going to order that there be a property adjustment 85 per cent in favour of the wife and 15 per cent to the husband, with no equalisation or adjustment to superannuation.

Agreed or uncontested relevant facts

1. Despite the intensity and bitterness of the dispute, much of the general narrative so to speak of this case is not disputed.  The husband was born on … 1972 and the wife was born on … 1966 (although they are divorced it is convenient to continue to use these terms).  The wife was born in Country A but migrated to Australia in 1970 and became a citizen in 1971.

2. The parties commenced cohabitation in 1993.  There is some minor dispute as to when this occurred but it is, in my view, immaterial.  Indeed, I should observe even at this early stage that this case has been rendered more tedious by the gross over attention to detail and prolixity of the parties’ materials.

3. The parties met when the wife was working at the Employer and the husband was a subordinate.  The wife resigned and obtained a redundancy payment.

4. The wife also cashed in part of her superannuation in 1993.  The wife’s superannuation cash-in amount was apparently some $8,300 and her redundancy payment was $20,000 from which no doubt some tax was deducted.

5. In about 1994, the wife reached a Family Law property settlement with her former husband by paying him $7,500, and she sought to re-finance her extant loan in relation to the former matrimonial home at Property B.  This had been built by the applicant and her former husband in 1987.  Because the wife was only in receipt of Child Support and Centrelink income, it was necessary for the husband to be added as a mortgagor in order for financial approval to be obtained.  It should be noted, however, that the husband’s assistance came in the form of unemployment benefits.

6. Indeed, one of the striking features of this whole proceeding is the very considerable extent to which the true progenitors of the income and resources that the parties have had has been the public purse.  Work has by and large not been for them.

7. The wife already had two children by her earlier marriage, Ms C born … 1988, and Ms D born … 1992.  They lived with and were cared for by the husband and wife following cohabitation, and the two children of the relationship, Ms E born … 1994, and Mr F born … 1995 followed.

8. It would seem that apart from brief periods of work with the Employer and with another employer for some few months in 1996, the wife did not work following cohabitation until late 2008, in which role she was paid some $2,000 plus per month.  This continued until the end of the relationship and indeed thereafter.

9. The husband commenced studies in 1996 and such was the extent of his endeavours that he finally completed it in 2010.  In between, the husband had a very brief period of work in 1996 as a casual customer service officer.  He worked as a casual customer service officer in 1998 for Employer, earning approximately $600 per fortnight, and from 1999 onwards he worked in his own business earning, as he described it at paragraph 69 of his first Affidavit, approximately $18,000 per annum.

10. As already indicated, the parties subsisted substantially upon the Child Support paid by the wife’s former husband and various statutory benefits, together with the meagre earnings of the husband throughout effectively the entirety of the relationship.

11. In 1999, the wife’s mother came to live with the parties, although the evidence as to the extent of her contributions, and/or contributions made to her, remains in my view wholly unclear.

12. The couple lived together in the Property A property until 2003 when they were able to obtain finance ultimately to construct a further property at Property G.  Loans on these properties have been, it would seem, transferred to different banks from time to time, but in my view nothing turns on this.

13. The Property A property was rented out from 2003 onwards, and this likewise contributed to the parties’ finances.

14. Following separation, the entirety of the rental from Property A was paid to an account controlled by the wife albeit that the husband was on title as a half owner.  The wife continued to receive her $1,837 payment as a public servant until her position ceased in 2012.

15. It will be appropriate to return to the parties’ history of employment post separation in due course when I deal with the evidence given at Court.

The parties’ Affidavits

1. The parties have filed a number of affidavits in the proceeding and I have of course read them carefully.  It should be noted that the self-representation of the husband in particular has led to the inclusion of large amounts of pejorative, hostile, and largely irrelevant material critical of the wife.  She, however, has not been backward in her responses.  The ill feeling between the parties is palpable.  It is clear from the material filed, and this was certainly augmented by the evidence given at Court, that the wife was, throughout the currency of the relationship, reproaching the husband bitterly for what she perceived to be his abject failure to get a job and provide for the family.

2. Much of what the parties have put on affidavit is already detailed in the agreed or uncontroversial matters above, and while therefore I have had proper regard to the affidavits, it is not necessary to detail them further.

The submissions made and evidence given at Court

1. What follows is taken from my notes.

2. Counsel for the wife sought to tender two sworn valuations only lately obtained, which gave retrospective valuations of the Property A and Property G properties as at 30 June 2009.  Given their late service, I simply marked these for identification and it may be necessary to return to them.

3. The husband was called and adopted his Affidavits and Financial Statement as true and correct.

4. Under cross-examination, the husband confirmed that he met the wife in 1993.  She was still married but separated when the relationship commenced.  He was not privy to the settlement with her former husband.  He was not aware that the wife owned the property at Property A until a month into the relationship.  He conceded that in 1994 the wife paid her former husband $7,500.  He conceded that the wife had built Property A seven years before the relationship.  He moved in in … 1993.  Whatever funds he had went into the joint venture.  He was aware of the mortgage but not aware of its details.  He had left the Employer in mid-1993 and was not working when he moved in.  He said he was not aware that the value of Property A at the time was $105,000.  He did not challenge the proposition that the mortgage was some $45,000 at the start of the relationship.  He said that his moneys contributed to the pool.  He was on Newstart.  He had possessed the belongings detailed in his affidavit.  He had a “couple of grand” in accrued annual leave.

5. The two children from the previous relationship are Ms C and Ms D.  Ms E was born in … 1994, then Mr F in … 1995.  The wife was engaged in home duties.  He said the wife worked for Employer for about three months between … of 1996.  Her termination payment in June 1994 was about $20,000.  The wife also received Centrelink and Child Support for the older two children.  She had been a public servant from 2008 to 2012.  She had a Carer’s Allowance in respect of her own mother.

6. The husband confirmed that the parties married in 1995 and that the public servant’s allowance was some $24,000 per year.  When it was put to him that there was separation under one roof in mid-2009 he said that that was what the wife claimed.  He said the wife was the primary carer of the children at times.

7. The husband was cross-examined about his earnings from his business.  He said the average was about $19,000 per year.  When cross-examined about the mortgage he said it was a joint mortgage.  It was put to him that he had kept his own income in his own bank account, and he said his income went into his business account.  It was put to the joint venture as a married couple.  He denied keeping it all.

8. The husband confirmed that the land for Property G had been bought in 2003.  He denied that it was the wife’s idea.  A house was built on the land but he denied that this was all done by the wife.  He said he recalled the parties collaborating.  He had drafted a plan.  The tenor of the husband’s evidence was that the wife had done very little in relation to the construction of the property.  He said he would daily walk the dogs to the site and check how things were going.

9. I should interpolate and say that the fact that the husband walked his dogs to the site and had a look each day appears to be about as much as he did.  Although the husband did not do nothing, it was clear from the husband’s evasive and prevaricating answers that the wife had been the prime mover in the development of the site.

10. The husband said he was studying and contributing to the welfare of the family.  It was agreed he would study …. Qualifications.  His degree took 14 years.  He started in about 1997 but transferred into …. studies  When he started customer service he went to part-time. He suffers ADHD.

11. He said that over the course of the marriage the dynamic changed.  She took up studies.  He had some difficulty with some subjects including …..  His study was full-time for the first few years but he gave precedence to the family.  His work at Employer earned $250 per week for a few months.  He was the primary carer for the family.  They received social security.  He worked at Employer in 1998 for one year, earning approximately $700 per fortnight.

12. I should interpolate that the husband’s answers were often overtly sarcastic and self-serving.

13. The husband said his ADHD was not an issue in parenting.  The job he did have was ideal.  It enabled study but still produced some earnings.  He invested in expanding his business.  His best year as a customer service representative earned about $32,000.  It was common for the wife to barrage him about his failure to contribute.  Arguments about money were a common theme.  She wanted him to get a full-time job and wanted more money.

14. His hobby was ….

15. The husband said he had filed a tax return last year.  It was not true he had only cooked twice.  He had cooked regularly and loved it.  He had undertaken housework.  He arranged his work to do this.  He got up at nights to feed the children.  The contributions with the children were roughly the same.  The wife is argumentative and has a personality disorder.  He had not been violent to her.  He thought the wife had a mental disorder from about 2001 to 2002 on.

16. Once again, I interpolate and say that the husband’s answers in relation to his contribution to the household could be characterised as self-serving boasts, and his answers about the allegations in relation to physical violence struck me as being evasive.

17. The husband said by 2007 the only way he could communicate civilly was by text.  When it was put to him that he had punched the wife following her father’s funeral in 1998, he said there was no altercation whatever.  He denied assaults in 2000 and denied punching holes in a wall in 2003 and 2009.  He denied hitting the wife in the bedroom in 2008.  He denied grabbing her by the neck and lifting her in 2005.  He denied throwing her in the air in 2006.  He said he took the wife to the Hospital.  She fell but this was not by him.  She slipped in the kitchen and he tried to catch her, and she fell backwards and hit her head.  He had his hands on her sides to calm her down.  She flung herself backwards as she was in a rage.  She had woken him up and been abusive to the children.

18. I would interpolate once more and say that I do not accept the husband’s denials about this last incident.  It is clear that the wife was in a rage, but it is equally clear that he pushed her over.

19. The husband said there were arguments about the length of time that he was studying.  He did not study at all in 2005 to 2008, a decision made in consultation with his psychologist.  The only irritation with the wife was her abuse to the children and to him which upset him.  The abuse increased over time.  He started to notice cracks when Ms E was born as the mother was jealous of her.  This continued until the end of the marriage.  Once again his evidence about this issue was evasive and appeared to me to change on the run.

20. The husband said the wife abused the children.  He interjected at times.  The children were treated horrendously at times.  He had not terminated the relationship.  He did feel the need to protect the children by separation but had not done it.

21. When asked about how the relationship ended in 2010 the husband said there was an altercation.  The wife began to berate him in the presence of her sister.  This was a new high.  He went into the backyard.  The wife called the police and told them she had been threatened.  The police told him to leave and he packed and left.  He had not punched her on the arm.

22. He said the wife applied for an Intervention Order.  When it was put to him that the police had applied for it, he was not responsive.  He admitted he had left the children with the mother.  He said he had left and was homeless.  He had not applied for an Intervention Order for himself or the children.  He was never physically abusive in any way.  He denied outright the wife’s allegation that he had raped her anally in … 2009.  The wife did not sleep with a knife under her pillow.  He said that she had invited him out after the alleged rape and the allegation was false.

23. All the children are adults.  Since separation he has contributed to the mortgage through the 50 per cent of income from Property A.  He has paid Child Support since separation.  Ms E stayed with him in 2011.  The total Child Support paid was $2,870.  He had paid for mobile phones for the children.  The children have been with the wife since separation except that Ms E was with him for 12 months.  He sold a car for $12,000 which was bought prior to separation.  There was a loan of $20,000 outstanding but he had not applied the $12,000 to the loan.

24. The husband agreed that the Property A property was vacant for one year in 2016.  The wife had failed to tenant it.  The mortgage had to continue and ran into arrears.  (He eventually, with obvious reluctance, admitted that the wife managed the property).  He did not attend parent teacher meetings for Mr F but did for Ms E.  He went to Queensland in 2014 and re-partnered for a couple of years, and then re-partnered again.  He currently is in receipt of work exempted Newstart.  His partner, Ms H, earns $744 a week.  She is his de facto partner.

25. He has been in his current rental property for almost two years and on Newstart for three months.  He was working as a professional until January 2016.  By the end of that employment he was paid $96,000.  He had started in about March 2014 full-time on a salary of $45,000.  Before that he was with Employer with whom he started in mid to late 2012 until late 2013.  His income started at $50,000 and went to $60,000.  He had worked as a casual customer service rep until 2012.  It was purely coincidence he obtained full-time employment only after Mr F turned 18.

26. He completed his degree in … 2010 and graduated in 2010.  He fractured his wrist and that stopped any prospect of post graduate studies.  He did not complete his studies as he was depressed after the divorce.  Dr J was his GP and he was seeing a psychiatrist, Dr K, from 2014 onwards.

27. His psychiatric injury arose from bullying in the workplace.  There is a WorkCover claim in progress.  This is under the WorkCover Act Queensland.  He is contemplating a common law action in Queensland.  He has a lump sum claim, which might be as high as $500,000.  He has no capacity for work and has not worked since 2016.  His employer denies the claim.  The employer has made an offer of $110,000 which he has rejected.  District Court proceedings were issued one to two months ago.  He feels somewhat better and takes Citalopram and Lexapro.  He has seen a psychiatrist for three months who prescribed the Lexapro.  He hopes to recover and return to work but may not be able to return to work full-time.

28. The husband confirmed that the mortgage at the commencement of the relationship in respect of Property A was $52,000.

29. In re-examination, the husband confirmed that his rental is $345 per week.

The evidence of the wife

1. The wife was called and adopted her Affidavits and Financial Statement as true and correct.  She confirmed that her superannuation is presently $12,510.

2. Before cross-examination, the husband tendered as exhibit A1 his available tax records.  What he produced was solely his return for the tax year ending 30 June 2013, which shows an income at $41,692.

3. The husband put it to the wife that they had re-financed Property A in 1996.  The wife said there was Family Court orders in 1995 which led to re-financing in 1996.  When it was put that she had attempted to re-finance after the court order, the wife said she had been paying the mortgage on her own anyway.

4. The wife conceded that the bank had insisted upon the husband’s unemployment benefits to get her over the threshold for the new loan.  She said she could have asked her sister who would have helped her.  She was a stay at home mother and it was always her intention that the house would be for her and the children.  She said, “You were there.  You were male.  You should have worked.”  She did not want to buy it with anyone else.

5. The wife confirmed that she was not able to return to work.  They moved into a flat and paid rent.  Her superannuation payout was about $8,000.  She was still paying the mortgage.  She said, “Someone was paying the mortgage and it was not you.”  The wife said that the husband had picked up her mother from time to time.  He did not cook.  She said that he kept his money in his account and did not pay any mortgage or bills.  She said he never told her how he spent the money.  She did most of the shopping.  He was gambling.  She has seen the husband’s business records.  None of the money came into the household.  If someone does not pull their weight, she has to stand up for herself.  She complained about finances from the start.  She was not interested in what he did.

1. I would interpolate that the wife gave self-serving non-responsive answers on numerous occasions.  She appeared to me to have a tendency to hysteria and over-reaction and was incredibly hostile to the husband in her demeanour.

2. The wife was cross-examined about the Statement of Financial Position completed on 23 February 2009 at page 183 of the husband’s Trial Affidavit.  She said that she expected the husband to tell the truth.  When faced with the husband’s earnings, as allegedly disclosed in the document, her answers were in my view entirely evasive and unbelievable.  Her professed lack of understanding or knowledge was palpably untrue.

3. The wife said she was very frugal and that her mother and sister had helped.  The husband could have got a better job.

4. The husband, tellingly in my view, put it to the wife that he worked part-time in the things he was passionate about.  The wife said that she knew his earnings were very low.  She had seen a few tax returns disclosing income of $10, $11 or $12,000.  The children enjoyed sports.

5. The wife had spent a year applying for jobs but could not say why.  Her casual work was below the tax limit.  She had not filed any false tax returns.

6. The wife was cross-examined about her role as a public servant.  She had travel expenses.  She went all over the place for meetings, including Town L.

7. The wife was asked whether she had placed caveats over the houses.  She said she probably did for different reasons.  It was to do with bank loans.  Legal Aid had been repaid.  There was cross-examination about the re-financing of the loans from time to time, which I confess I found hard to follow, but it does not seem in the scheme of things to be material.

8. The wife conceded that her mother had lived with the parties since 1994.  He had driven her before that.  Her mother had left a will.  There is one property divided five ways.  She would be lucky to see any money.  It emerged that the property is in Country A and I accept that any receipts arising from it are wholly speculative.

9. The wife conceded that the Property A property had been untenanted for a year in 2016.  There were difficulties with a tenant who was a lady she had known.  He was never interested in that property.  Some loan repayments were not made on time.  She was the only one in contact with the bank.  It is up to date now.  The wife accepted that the Property G loan had been reduced from $253,000 to $206,000 since separation.  She has had hardship with the bank for the last few years.  She has not been able to re-finance since separation as the husband’s name is on title.

10. Youth allowances paid to cover the cost of children was paid directly to her.  She does refer to the husband as mental and crazy to the children.  She said the husband is having a good life on the Region M.

11. The husband cross-examined about the 2006 assault.  The wife’s version was that the husband grabbed her twice and threw her into the wall.  I would interpolate yet again and say this evidence was given with conviction and I accept it.

Final submissions of the wife

1. Counsel submitted that the valuations should be taken as at the date of separation.  Normally the Court would take values at the time of the hearing, but the wife’s evidence was that the husband’s contributions ceased totally at separation.  The husband had paid Child Support of $2,800 at most and made no other payments to the wife.  The husband says that rental income was paid into the mortgage but he questioned the weight of this contribution as no actual cash had been advanced.  Counsel submitted the valuations are business records, an assertion I accept.

2. The assets had increased post separation.  The husband had only signed the original mortgage and loan documents but the wife could have got her sister to sign.  The husband’s HECS debt of $66,076 should not be included in the pool.  Counsel pointed to paragraph 17 of the husband’s Case Outline which proposed such exclusion.  Counsel submitted that the ANZ MasterCard debt was a post separation debt.  The husband was working post separation for about four years.

3. The husband had made no contribution.  His non-financial contributions were also minimal.  The wife was the carer for the children and had worked at times.  The tax return in 2012 to 2013 was $41,692 at which time Ms E was 16 and Mr F 15.  He had nonetheless paid only $2,800 in Child Support at the most post separation.  Ms E had lived with the father for some 8 to 12 months.  They had had the care of the grandmother.

4. Counsel stressed a Kennon argument.  The husband had only cross-examined about one incident and had not cross-examined about the alleged rape.  There was no medical evidence but the wife’s affidavits spoke for themselves.  Contributions were heavily skewed in favour of the wife.  The wife did all the work to purchase Property G.

5. When turning to the issue of future needs, counsel submitted there were serious issues of non-disclosure.  The husband had not disclosed his WorkCover claim.  He had prepared his case with the assistance of legal services.  He had worked full-time from 2012 to 2016 earning up to $96,000.  There was no disclosure of any of his payments in respect of his HECS loan.  Counsel referred to the case of Kowaliw (1981) FLC 91-092 as to wastage. The 14 years of study had not been applied. The husband had an earning capacity. Counsel referred to the case of Chang v Su (2002) FLC-93-117 and submitted the Court should not be unduly cautious about the husband’s common law claim.  He has been out of work three years.  His claim could be very substantial.

6. Counsel submitted that it was agreed that each party should keep their own superannuation.  If there was a property settlement, the wife seeks that Property A be sold.  Capital Gains Tax would be payable.  He sought the orders in the wife’s Response.

Submissions of the husband

1. The husband accepted that the wife’s initial contributions were slightly higher.  He had undertaken casual work, Austudy, and applied himself to the family.  His contributions were significant.  The wife did not work.  He helped with his stepdaughters and made non-financial contributions.  He denied all family violence.  He had contributed post separation.  The wife remained in the house and made only minimum mortgage payments.  His post separation contributions of $59,000 being half the rent to Property A, which was more than the mortgage.  He also had Ms E live with him for 12 months.

2. The evidence about his health was incomplete.  It was a matter of weight.  The properties should be valued as at the date of trial.  So far as future needs is concerned, he has been out of work since 2016.  He hopes to see his employment capacity improve.  The wife is employed full-time and has no health issues.  There should be no Kennon adjustment and he denied the rape.  His lengthy memorandum (which I have not dealt with thus far) in 2007 had been written at a time when no legal proceedings were contemplated.  His ANZ Mastercard debt accrued during the relationship and closed shortly after separation.  It became inactive.  His WorkCover claim was disclosed to the wife’s solicitors.  Pleadings have not been prepared.  So far as Kowaliw was concerned, the wife had missed minimum payments on the mortgages and loans.

3. I would interpolate that the husband’s letter to the wife in 2007 to which I have just referred, at pages 90 and following of his Trial Affidavit, bespeaks a quite incredible degree of detail.  It is typical of the myopic minutia-based approach that both parties have brought it would seem to the relationship generally and to these proceedings.

Findings about the credit of the parties

1. I have already made a number of remarks critical of the two witnesses.  Mercifully, counsel for the wife did not seek to adduce the evidence of the wife’s son, Mr F, brother-in-law, and sister, who had been put on affidavit following an indication from me that their evidence was unlikely to add much to the matter.  I remain of that view.

2. It is always regrettable to make criticisms of witnesses or parties in a judgment.  Sometimes it is unavoidable and this is such a case.  Both these parties struck me very strongly as being extremely mean in spirit.  As I have already indicated, the wife struck me as prone to hyperbole and something akin to hysteria.  The interaction between her and the husband when he was cross-examining her was fraught to say the least.

3. The husband struck me as being markedly over attuned to detail.  His 2007 correspondence was really an exemplar of his evidence more generally.  His assertion as to his contributions by way of one daughter living with him for some 12 months and his half share of the rent speaks for itself.  These are not significant contributions.

4. In circumstances where both witnesses struck me as being unreliable and self-serving at times in their answers, it is just as well that so much of the materials are either agreed or not the subject of dispute as earlier indicated.  I will deal with the particular matters of controversy that seem to me to require attention below.

Stanford v Stanford

1. In this case, the wife did not, as her primary position, seek a property adjustment.  She seeks that the entirety of the matrimonial pool are devolved to her.  In the more realistic alternative, she presses for 90 per cent.  The husband seeks 60 per cent.  In truth, both parties seek

   
   

   a property adjustment, and in my view it is plainly desirable that there be one.

The pool

1. The first issue to be determined here is the value to be ascribed to the two properties that the parties own.  I accept that the ordinary rule is that the Court deals with the parties’ properties at the time of trial (see AJO v GRO (2005) FLC 93-218).

2. The Court’s overarching duty, however, is to do justice between the parties.  For reasons which will become apparent when I deal with the question of contribution, the wife has made the overwhelming contribution to the creation of such wealth as the parties now have.  The husband’s contributions during the relationship were markedly inferior to those of the wife.

3. Since separation the husband has really contributed all but nothing.  The fact that one of the children lived with him for a relatively short time is, in my view, neither here nor there.  I note that the husband did not achieve full-time employment until his obligations to pay Child Support were concluded.  Whether this was intentional or otherwise, the fact is he contributed some $2,800 from the date of separation onwards.  Given that separation was in either 2009 (wife’s version) or 2010 (husband’s version) and Mr F did not turn 18 until 2015, the amount of Child Support paid by the husband was in truth quite minimal.

4. This brings into play the primary assertion made by the husband as to his contributions post separation, and indeed in large part during the relationship.

5. The fact is that the wife already possessed the Property A property at the commencement of the relationship.  She and, for a time, her former husband had already owned it for some seven years and it had a not insignificant element of equity.  It was this equity, no doubt, that enabled the parties to obtain the loan for the Property G property.  The husband’s only contribution, in effect, was to take on a responsibility as a joint mortgagor of the property.  The wife could not have obtained the consolidation of her loans without the husband’s assistance.  She says her sister could have helped her but the fact is it was the husband who got her across the line.

6. It should be noted, however, that the husband made no actual financial contribution directly himself of any sort to any of the loans that the parties took out.  The Property A loan was always paid by the tenants to the extent that it was paid at all.  These kind of unusual factual narratives make for a very difficult distillation into the methodology used to deal with property division.  It is appropriate in my view to continue and deal with the issue of contribution more generally at this point.

7. As already indicated, the wife already possessed the Property A property when cohabitation started.  The husband did give her some material assistance in obtaining the reconsolidation of her loan in terms of Property A, and obviously his benefits were noted as an asset for the purposes of the purchase of Property G.

8. Having seen and heard the parties give their evidence, I have no doubt that the wife’s version of the contributions to the family’s wellbeing, both directly through income contributions and otherwise, is substantially more correct.  The wife was always the primary carer of the children.  The husband did not do nothing but did relatively little in the ordering of the household’s affairs.  Additionally, the wife was the person who, as it were, ran the family finances and I fully accept that she managed the Property A property from when it was tenanted onwards.

9. All of this, however, needs to be seen perhaps in proper context.  In truth, both of these parties are significantly work shy.  They did not have to work during most of the relationship and did not do so.  This was because they were in receipt of significant statutory benefits, together with Child Support from the wife’s first husband, together in due course with rental from the Property A property.  These two workshy, selfish, self-oriented individuals do not engender, at least in me, a great deal of personal sympathy.  The assertions that they contributed directly to their ultimate financial outcome is misplaced. It is the Australian tax payer and the wife’s former husband who have made the predominant contribution.

10. Having said this, however, it is plain that the husband utterly failed properly to endeavour to provide for the family’s needs.  His answer that he pursued part-time those matters which he was most passionate about was plainly true.  He liked being a student and he liked being a business owner.  He did these part-time because it suited him to do so. I am not in any way surprised that the wife criticised him for it, and in my view she was reasonable enough to do so.  The criticism would doubtless have been shrill and loud but it sprang from an understandable wellspring of frustration.

11. The husband’s niggardly failure to contribute after separation and his insistence that half the rental, so to speak, redounded to his entire credit is, in my view, misplaced.

12. Taking these matters as a whole, it is plain that the clear majority of the financial contributions are referrable if not actually sourced by to the wife.  She also made far of a greater contribution to the running of the household and the upbringing of the children.  Taking the parties’ contributions as a whole, I would express them to be 80 per cent to the wife and 20 per cent to the husband.

The wife’s Kennon argument

1. I am unable to make an express finding as to whether or not the husband raped the wife.  He denied it in plain terms.  The fact is the relationship was not terminated forthwith.  No report was made to the police.  No medical evidence has been called.  I am simply not able to make a finding one way or the other.

2. Having made that clear, I accept that the husband did at least assault the wife on one occasion.  His prevaricating and evasive descriptions of the 2006 incident were wholly unbelievable.  Nonetheless, despite this deplorable incident, I do not think that the husband’s behaviour to the wife rises to the level of a Kennon adjustment.  The wife struck me as a person well able to give as good as she got in terms of arguments and disputes.  I simply do not accept that she would have remained in the relationship with this otherwise pretty much worthless partner had he been physically abusing her as well.  She impressed me as being extremely angry with the husband and vitriolic about him, but not in the faintest way scared or apprehensive.  I do not believe a Kennon adjustment is appropriate.

The pool

1. To return to the pool, I think the values to be ascribed to the properties should be those as at the date of trial.  I have, as it were, factored in the husband’s abject failure to contribute in that apportioning of the contributions.

The pool

Former matrimonial home, Property G - $600,000.

Property at Property A - $440,000.

Wife’s Motor Vehicle 1 - $7,700.

Husband’s proceeds of Motor Vehicle 2 - $12,000.

Liabilities

ANZ Mortgage on Property A – $56,173.

Mortgage Property G - $206,214.

Second mortgage Property G - $1,302.

Husband’s MasterCard debt - $10,000

1. The parties’ superannuation is not significantly disparate and neither party seeks a superannuation split so I will set it to one side, noting that that of the husband is approximately twice that of the wife.

2. I have not included the parties’ chattels as there are no valuations.  I do include the husband’s ANZ MasterCard $10,000 debt as I accept his evidence that it was a debt garnered during the relationship.  This evidence at least was given with conviction and I accept it.

Future needs

1. This is an area of considerable difficulty.  The wife has a job paying her some $46,000 per annum and it appears to be secure employment.  The children are all now adult even though they may still live with the wife, who appears to charge them for their residence.

2. There has been some suggestion that the wife may have re-partnered but the wife was not significantly pressed about this aspect of the matter and I am not in a position to find that she has an asset in the form of a partner who contributes financially to her wellbeing.

3. The wife is in unexceptionable health and, albeit slightly older than the husband, still has a number of years of work ahead of her.

4. The husband’s position is different.  He has not worked for some three years.  His future employment prospects are bleak.  Although his treating psychologist, Ms N, was not called to give evidence (although it was foreshadowed she would be) the fact is that, doing the best I can, it would seem that the husband’s position in terms of future employment is poor.  Indeed, the position of the wife through her counsel in attacking Ms N’s report faces the difficulty that that report is the only evidence the Court has as to the existence of the husband’s apparent common law/WorkCover claim in Queensland.

5. Counsel for the wife is entirely correct to say that the husband’s failure to properly and fully disclose this claim is thoroughly inadequate. It really only emerged in cross-examination.  I do not accept that it had been indicated in any kind of intelligible way to the wife’s solicitors,  as they would unquestionably have pursued the matter.  The fact is that the husband has a claim of some sort arising out of his employment in Queensland.  He said it arose out of workplace bullying.  He has rejected an offer of over $100,000.  In these circumstances, the Court is entitled to take a more robust approach (see Chang v Su).  Furthermore, the husband has re-partnered and it would appear that his partner has at least some employment.

6. In all the circumstances, in my view there should be a further 5 per cent adjustment in favour of the wife as to future needs.

Conclusion

1. In the light of all the circumstances in this rather peculiar case, which turns very much on its own particular facts, I think that a division of the parties’ assets as at the date of trial in the proportions of 85 per cent to the wife and 15 per cent to the husband is indeed just and equitable.

2. Neither party has addressed the practicalities of how the final orders should be implemented.  I will hear further submissions on the form of orders to be made.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date: 16 April 2019