LAMOTHE & SAM - [2019] FamCA 501

FAMILY COURT OF AUSTRALIA

LAMOTHE & SAM

[2019] FamCA 501

FAMILY LAW – PROPERTY – Where the de facto relationship had two distinct periods separated by seven years – Where the first relationship was eleven years and the second was two years – Where the first relationship was prior to the Court’s jurisdiction over de facto relationships – Where the significant asset was acquired at the beginning of the second period of the relationship – Whether contributions during the first period can be taken into account.

Family Law Act 1975 (Cth) ss 90SF, 90SM

Dahl & Hamblin (2011) FLC 93-480
Kennon & Kennon (1997) FLC 92-757

APPLICANT:

Ms Lamothe

RESPONDENT:

Mr Sam

FILE NUMBER:

SYC

4095

2014

DATE DELIVERED:

30 July 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

15 – 18 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Gibbons

SOLICITOR FOR THE APPLICANT:

Maveston Legal

COUNSEL FOR THE RESPONDENT:

Ms McIntosh

SOLICITOR FOR THE RESPONDENT:

Ktenas Solicitors & Barristers

Orders

IT IS ORDERED

That within three months of the date of these Orders, the respondent pay to the applicant the sum of $90,222.
In the event that the respondent does not pay the sum referred to in Order 1 by the due date, the respondent shall do all acts and things required to sell the property at X Street, Suburb L and to pay the proceeds of the sale in the following manner and priority:
(a)      In payment of any registered mortgage;
(b)In payment of the costs of sale including legal fees and agents’ commission;
(c)      In payment of the sum of $90,222 to the applicant;
(d)      In payment of the balance remaining to the respondent.
That, in relation to any application for costs, the applicant for costs file and serve the application for costs, an affidavit of the evidence upon which he or she relies and written submissions within one month of the date of these Orders.
That the respondent to any costs application file and serve a response, an affidavit of evidence upon which he or she relies and written submissions within a further period of one month.
That the application for costs be dealt with by the Honourable Justice Rees in chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym <Sam & Lamothe> has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4095 of 2014

Ms Lamothe

Applicant

And

Mr Sam

Respondent

REASONS FOR JUDGMENT

Ms Lamothe (“the applicant”) and Mr Sam (“the respondent”) lived in a de facto relationship between 1991 and June 2002 and again between 24 April 2009 and 6 April 2011.
They have one child, now an adult.
The proceedings before the Court concern property settlement.

HISTORY

In 1965 the respondent migrated from the United Kingdom to Australia.
In 1988 the applicant migrated from Country B to Australia.
In late 1988 the parties met when the applicant began working in the respondent’s business, I Pty Ltd. The respondent owned that business with his then wife. The respondent also owned the shares in BB Pty Ltd.
In 1989 the respondent separated from his wife, Ms J and they were later divorced. As a consequence of their settlement, the respondent acquired both I Pty Ltd and BB Pty Ltd.
In 1990 the parties commenced a sexual relationship and in October 1991 they started living together in a de facto relationship in a rented unit Suburb K. The applicant’s daughters, Ms G and Ms H lived with them. They were 12 and six years old respectively at that time.
At the commencement of their relationship the applicant had no assets of significance. The respondent had his interest in I Pty Ltd and BB Pty Ltd and a car.
In 1992 I Pty Ltd was wound up.
In approximately 1993 the parties moved into a rented three bedroom home at Suburb L with the applicant’s children, Ms G and Ms H. They lived in rented homes until the end of the first period of their relationship.
Although Ms G and Ms H spent some time with their father, he did not pay child support and the costs of their financial support, after the commencement of co-habitation, were met by the parties.
Also in 1993, the respondent sold the shares in BB Pty Ltd to two former employees for $20,000.
In approximately 1993, the parties formed a company called “M Pty Ltd”. They were both directors and equal shareholders of the company. The $20,000 from the sale of the shares in BB Pty Ltd was used to purchase machinery for M Pty Ltd. They both worked in M Pty Ltd. The applicant’s role was in administration.
In 1995 Ms G left the home and thereafter lived in Country B. It is not clear on the evidence when Ms H moved out. In 1995 the parties’ son, Mr D was born. At approximately this time the parties moved to another rental property at Suburb N. After Mr D’s birth, the applicant continued in her role as book keeper for M Pty Ltd, working from home.
Ms H was living with the parties when Mr D was born.
In 1999 the respondent, who is qualified in engineering, commenced employment at Company AA. M Pty Ltd was used as the corporate vehicle through which the respondent provided his services. Until the parties’ separation in June 2002, their sole source of income was from the respondent’s employment.
In 2001 M Pty Ltd stopped paying a wage to the applicant. I infer that because the company operated only as the vehicle for the respondent’s employment, there was no administration work for the applicant to do. In early 2002, the respondent’s contract with Company AA finished and he commenced work with Company BB, again using M Pty Ltd as the vehicle. He made no contributions to superannuation.
The parties separated in June 2002. The applicant asserts, and the respondent denies, that there were incidents of family violence. The applicant and Mr D moved out of the property the parties were occupying and into a unit at Suburb O with Ms H, and Ms H’s partner. The applicant remained living at that unit until April 2009.
After separation, the respondent spent time with Mr D every weekend from Friday afternoons until Sunday evenings, and for some time on Tuesday evenings. The applicant said that immediately after separation the respondent spent time with Mr D but not in her presence. After a few months the arrangements relaxed and the respondent would also spend time with Mr D and the applicant together, in her apartment.
The applicant asserts that the respondent did not pay child support for Mr D regularly. The respondent asserts that he paid child support.
From 2002, M Pty Ltd ceased to trade. Its only income thereafter was as a corporate vehicle providing the respondent’s services to other employers. The respondent contends that he paid the applicant a total of $4,000 for her interest in the company. The applicant disputes that assertion. She denies that she received any consideration for her shares. She signed a letter of resignation which was accepted by ASIC as her resignation as a director but there is no evidence that she transferred her shares to the respondent, although ASIC was notified on behalf of the respondent that he was now the sole shareholder.
In November 2002 the respondent started working for a company called Company P. The respondent started making contributions to superannuation. He arranged for the applicant’s son in law, Mr HH to obtain a job there.
In December 2003 the applicant signed a document tendering her resignation from M Pty Ltd. The parties disagree about the intent and effect of that document. The respondent asserts and the applicant denies that she also transferred her share in M Pty Ltd to him.
In April 2007 the respondent purchased Company P. He used the corporate vehicle that conducted M Pty Ltd for the purchase and later changed the name of the company to Company P (“Company P”). The applicant contends and the respondent disputes that the purchase was a joint decision and a joint enterprise rather than the sole endeavour of the respondent.
The respondent contends that, in order to purchase Company P, he “cashed up” his superannuation of $141,936.39 and lent the whole amount to M Pty Ltd. The applicant disputes that contention.
In about June or July of 2007 the applicant commenced work at Company P. She worked as an accounts clerk and was paid a wage. The applicant deposed and the respondent disputes that her role with Company P was as director and shareholder as well as employee, as had been the arrangement for M Pty Ltd.
On 10 August 2007 Mr HH purchased 30 per cent of Company P in exchange for $50,000 that he and his wife, Ms G, lent to the company. They borrowed $35,000 on their home mortgage, and the respondent lent them the remaining $15,000. Over about 18 months, dividends paid to Mr HH by the company enabled him to repay both loans.
In early 2008 the respondent moved into a rental unit at Suburb Q. Thereafter, he did not have overnight time with Mr D who did not want to stay at Suburb Q but he saw Mr D at the applicant’s unit. He brought take away meals and occasionally stayed over.
In March 2009 the respondent purchased a property at Suburb L (“the Suburb L property”) for $580,000 in his sole name. He deposed that he paid an initial deposit of $58,000 on 12 February 2009 and that, on 28 March 2009 he paid a further sum of $133,352. He deposed that he drew $100,000 from Company P. He borrowed the balance of $412,000 from Westpac. Exactly how the purchase was financed is not clear. The respondent deposed that the price, including stamp duty was $601,610. He borrowed $412,000 from the bank and $100,000 from Company P. The source of the remaining approximately $90,000 is unexplained but it came from the respondent.
The applicant made no financial contribution to the purchase of the Suburb L property.
The parties and Mr D moved into the property on 24 April 2009. The parties occupied separate bedrooms.
The extent of their respective contributions during the period of 23 months that they both lived in the Suburb L property is a matter in dispute. It is not in dispute that the applicant continued to receive Centrelink benefits during the period.
On 6 April 2011 there was an incident between the parties and the respondent was arrested. He spent the night in custody and was released the following day without charge. An Apprehended Violence Order (“AVO”) was issued for the protection of the applicant, and the respondent consented to it on a “without admissions” basis.
Mr D left school at the end of Year 10. There is no evidence of when that occurred or what he then did. Whether he left school while his parents were living together in the Suburb L property is unknown. I am unable to make any findings about the care of Mr D after separation except that he lived with the applicant. Doing the best I can, Mr D was probably about 16 years old when he left school which was probably at the end of 2011.
The applicant moved out of the property thereafter and into a rental property at Suburb R. The respondent said that from this time, he spent time with Mr D on an irregular basis. The respondent remained in the Suburb L property. Although the parties had separated, the applicant continued to work at Company P.
In October 2011, the respondent terminated the applicant’s employment at Company P. The respondent asserts, and the applicant denies, that she used her position as bookkeeper to wrongfully pay money from the accounts of Company P to her own bank account.
The applicant was employed between January and March 2012 and re-commenced employment later in 2012. She remained in that employment until she was retrenched in April 2018.
At some time, the respondent formed a relationship with Ms Y who lives with him. Ms Y was employed by Company P.
On 23 May 2013, the applicant’s debtor’s petition was accepted. In oral evidence, she said that she then owed about $14,000 to a finance company. On 12 May 2016, a letter was written by the Australian Financial Security Authority (“AFSA”) asking for information about the progress of this litigation and requiring the applicant to provide information in relation to the progress of the litigation. It would appear that the applicant has ignored this letter.
In 2014, the respondent had a heart attack and in May 2015 he had open heart surgery. He had a period of recuperation. During this period he was unable to give his attention to the business and it began to decline, losing customers.
On 13 August 2016 a document was produced by AFSA which states that the bankruptcy has been discharged by operation of law.
On 25 January 2017, AFSA wrote to counsel for the applicant advising that the sum of $59,874.16 would be required to annul the bankruptcy.
On 12 July 2019, AFSA wrote to the solicitors for the applicant requesting that they be kept informed of the progress of these proceedings.
The applicant asserts that the respondent has used his superannuation entitlements and money from Company P so as to diminish the pool of available assets and that the money so used by the respondent should be notionally added back to the pool of assets available for distribution.
On 3 July 2014 the applicant filed an Initiating Application seeking orders for property settlement. Leave was granted for her to initiate those proceedings out of time.
On 24 April 2018, the applicant received a retrenchment payment of $26,561.19. The whole of that money was spent within a short period, a portion being spent on gambling on poker machines.
Between May 2018 and October 2018 the applicant withdrew the whole of her superannuation entitlements totalling $41, 751.70. Those funds have been spent. A portion of the amount was spent on gambling on poker machines.

ISSUES

From the narrative set out, the following issues emerge:
·    What is the status of the applicant’s bankruptcy?
·    The allegations of family violence.
·    Did the applicant receive $4,000 from the respondent for her shares in M Pty Ltd?
·    Did the respondent pay child support after the separation in 2002?
·    Was the acquisition of Company P a joint venture of the parties?
·    How was the purchase of Company P financed?
·    Did the applicant steal money from Company P?
·    How was the purchase of the Suburb L property financed?
·    What is the value of the Suburb L property?
·    Were the applicant’s contributions in the second period of the de facto relationship diminished by her gambling?
·    Has the respondent diminished the pool of available assets and should funds be notionally added back?
In the Case Outline, counsel for the respondent submitted that leave had been granted to the applicant to make an application pursuant to section 90SM of the Family Law Act 1975 (Cth) (“the Act”) only in relation to the second period of the de facto relationship and that, as a consequence, the Court can only consider any contributions made during the period of the second relationship. That issue needs to be considered first.
In the course of cross-examination, it became clear that there is also an issue about whether the respondent will continue to trade in the business conducted by Company P.

THE TRIAL

The applicant relied on two affidavits sworn by her on 23 April 2019 and 12 July 2019.
The respondent relied on an affidavit sworn on 29 April 2019.
At the commencement of the hearing, no valuation evidence had been filed. A valuation had been obtained by the husband but there was no affidavit from the valuer. After hearing submissions, I admitted that valuation into evidence and indicated that reasons would be provided in the substantive judgement. These are the reasons.

VALUATION EVIDENCE

Although on 6 September 2018 the Court ordered that by 9 November 2018 the parties either agree on the value of asserts or take immediate steps to appoint a single expert valuer able to report by 14 January 2019, no such valuation had been commissioned.
On 3 April 2019, the solicitors for the respondent wrote to the solicitors for the applicant saying:
In relation to the Suburb L property we are instructed that our client is currently in the process of obtaining an updated market appraisal / valuation.
Please advise us if you possess any up to date market appraisals and/or valuations and kindly serve us with a copy of same.
If agreement cannot be reached, a single expert valuer should be chosen with the cost to be shared equally between the parties. To this end we again kindly request that you propose three (3) separate valuers and our client will select one. Once again we request that you provide us with the valuer’s CV and proposed fees.
The solicitors for the applicant replied on 8 April 2019 proposing Mr GG at an estimated cost of $495. The solicitors stated:
We are instructed that our client agrees to share the costs of the above valuations. However, currently she does not have the means of paying for them and propose [sic] that your client pays for her share of the valuation which will be offset from her share of the pool of assets.
On 3 May 2019 the applicant’s solicitors wrote to Mr GG requesting a valuation of the subject property. On 6 May 2019, Mr GG provided a valuation report valuing the property at $950,000. That valuation was never served on the respondent’s solicitors and there is no evidence that the respondent’s solicitors were aware of the valuation.
On 1 July 2019 the respondent’s solicitors forwarded a copy of a valuation report of Mr GG to the applicant’s solicitors. His nominated value in that report was $800,000.
Nothing further was done in relation to the issue of valuation by either solicitor.
On behalf of the applicant it was submitted that the Court should order that the property be sold and thus the market would fix its value. Counsel for the applicant conceded that this would work an injustice to the respondent who wishes to retain the property.
On behalf of the respondent, counsel submitted that the husband had done all he could to bring proper evidence before the Court.
Since neither solicitor had relisted the matter after it became apparent that there was no compliance with the Orders made in September 2018, I do not consider that either has done that which was necessary to prepare the matter for hearing.
However, it would be unjust to force the respondent to sell the property in which he lives when neither party has taken the appropriate steps to bring proper evidence before the Court.
The applicant nominated the valuer. The applicant had issued a subpoena to the valuer to produce his file and the valuer was available for cross-examination.
In those circumstances I permitted the respondent to rely on the valuation, noting that the value was challenged by the applicant and the valuer would be cross-examined.
I will firstly deal with the issue of whether contributions made by the applicant from the commencement of the first period of the relationship can be taken into account.

Can contributions made in the period of the relationship that ended before the acquisition of jurisdiction be taken into account?

The Case Outline of counsel for the respondent sets out the argument:
24.Leave was not granted for the Wife to apply out of time for the end of the First Relationship and none could have been granted. The period of the First relationship (between 1991 and 2001) would not fall within the jurisdiction of the Family Law Act as Part VIIIAB (being concerned with financial matters relating to de facto relationships) was inserted into the Act by the Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 (“the amending Act”). Part VIIIAB does not apply to a de facto relationships that “broke down” before the commencement date of the relevant schedule of the amending Act, (Item 86 of Part 2 of Schedule 1 to the amending Act); that commencement date was 1 March 2009. The breakdown of the second De Facto relationship attracts the jurisdiction of the Court as it is after 1 March 2009.
25.The First relationship, including its financial relationships and ties and parenting issues were all resolved and finalised. There was nothing left from that relationship for this Court to resolve.
26.The Court determined by way of its Judgment of 15 July 2016, that there were two distinct defacto relationships.
27.The leave that was granted by this Honourable Court was for the Wife to apply to the Court out of time for the second relationship only. The Court is required according to the s90SM to assess the contributions of the parties on the facts and circumstances as they exist for the second relationship only. The First relationship provides the Court with background facts and circumstances which assists the Court to understand the initial contributions of the parties and the contributions during and after the second relationship.
(as per the original)

The relevant leave was granted on 23 August 2016. Leave was not opposed. The Court ordered:
1.Leave is granted to the applicant to apply for orders under s 90SM of the Family Law Act 1975 (Cth) notwithstanding that more than two years have passed since her de facto relationship with the respondent broke down.
2.The Initiating Application filed by her on 3 July 2014 is deemed to have been filed pursuant to that leave.
The application initiating proceedings, relevantly, sought orders in the following terms:
1.That the net proceeds of the business [Company P] be distributed 50/50 between the Applicant and the respondent.
2.That the net proceeds of the marital home situate at [Suburb L] be distributed 50/00 between the Applicant and the respondent.
There is no indication that, when leave was granted, any consideration was given to whether it was necessary to grant leave in relation to the two distinct periods of the relationship. Since that finding had not been made when leave was granted, it is likely that the grant of leave was general in its terms to allow the applicant to bring a case and have that case determined. It would not appear that the submission now made by counsel for the respondent was made in the proceedings relating to leave.
At the commencement of the submissions, counsel for the respondent, properly and in accordance with her obligations to the Court, referred the Court to the judgment of the Full Court of this Court in Dahl & Hamblin (2011) FLC 93-480 which dealt with the issue of whether a period of a de facto relationship which ended before the jurisdiction was conferred on the Family Court, could be aggregated with a later period of the relationship which occurred after jurisdiction was conferred for the purpose of satisfying the requirement that the relationship existed for two years.
While the Full Court did not consider the precise question now to be determined, the reasoning is relevant to this issue. The issue to be determined was stated by the Full Court in the following terms:
The question is therefore whether one of the parties, who is now the respondent to the appeal, should be able to rely on a period prior to the commencement of Part VIIIAB to obtain what she must presumably see as the benefits of that Part when she could not have done so had the relationship not resumed?
Their Honours stated:
Again no answer is to be found to this question in the Act, in the relevant Explanatory Memorandum, or in the Second Reading Speech. Nor has this question been expressly decided in any other case to which we have been referred, or been able to find for ourselves.
Their Honours stated:
...the amending legislation, which inserted Part VIIIAB, expressly states that the Part should not apply to a de facto relationship which “broke down” before the Part commenced (Item 86 in Part 2 of Schedule 1). However, in relation to the two year qualifying period required for a relationship to exist before it can be the subject of financial proceedings under Part VIIIAB, no limiting description of when that period, or periods, might, or should, have occurred, has been imposed by the legislature. Nevertheless, we understand it to be well accepted that parties whose de facto relationship was in existence on 1 March 2009, but which subsequently broke down, have been able to avail of the new provisions provided their relationship extended over a period of at least two years where that period extended over that date. (See for example Cronin J’s decision in Vaughan & Bele [2011] FamCA 436.)
We therefore find it difficult to accept, at least in the absence of any clear statement to the contrary in the legislation, that the periods of a relationship which can be aggregated (under s 90RD(2)(a) and s 90SB(a)) for the purpose of establishing the required two year period cannot include periods prior to the commencement of Part VIIIAB on 1 March 2009, provided, of course, that the relationship existed for a period, or periods, after that date.
Their Honours concluded:
Thus our overall conclusion is that if parties to a de facto relationship separate after 1 March 2009, one or both may commence proceedings under Part VIIIAB if they can establish that their relationship has existed for periods aggregating at least two years and that at least one of those periods occurred after the commencement of Part VIIIAB on 1 March 2009. It matters not at least for the purposes of establishing jurisdiction under s 90SB, how long ago the other period, or periods occurred, or what were the circumstances of any breakdown in the relationship (although as we have said, the circumstances of their periods together and of their periods apart will, of course, be important in the determination of a “proper” maintenance order or a “just and equitable” order for alteration of property interests).
It will be appreciated that the answers which we have given to the questions raised in this appeal concerning the intended meaning of the word “periods” in s 90RD(2)(a) and s 90SB(a), may well be categorised as representing a “beneficial” interpretation of those legislative provisions. But we consider that this approach is justified given the Attorney-General’s explanation in his second reading speech of the beneficial or remedial nature of the legislation, being that it was intended to “provide greater protection for separating de facto couples and simplify the laws governing them”. (See the discussion in Pearce & Geddes, Statutory Interpretation in Australia, 7^th ed, LexisNexis Butterworths, Australia, 2011 at [9.2].)
Applying the same reasoning to the question to be determined here, I find that the contributions made by the parties in each of the two distinct periods of the de facto relationship can be taken into account, as must the contributions made by both of them in the periods when they were separated.

What is the status of the applicant’s bankruptcy?

The applicant filed a debtor’s petition on 23 May 2013 and was statutorily discharged from bankruptcy on 24 May 2016.
On her discharge from bankruptcy, her property remained vested in her trustee. However, the applicant had no or minimal property.
She had an interest in superannuation which is excluded from the property to which the trustee is entitled.
She had a right to institute proceedings pursuant to the Act, seeking orders, inter alia, in relation to the Suburb L property. That right is not property for the purpose of the bankruptcy.
She had a car and personal possessions of negligible value.
Accordingly, there is no property which has remained vested in the trustee.
The applicant has made no application to annul the bankruptcy.
The trustee has no claim upon her.

Family violence

The applicant asserts that, for the duration of the de facto relationship, the respondent, from time to time, was violent, culminating in his attempting to strangle her.
No submission was made that her contributions were made more difficult by this conduct, nor was there any reference in submissions to Kennon & Kennon (1997) FLC 92-757.
It is common ground that the respondent was arrested and detained by police on 6 April 2011, the night the parties separated, that he was released without charge and that he subsequently consented to the making of an Apprehended Domestic Violence Order (“ADVO”) without admissions.
The respondent was not cross-examined about his denials relating to the allegations of violence. In oral evidence he said that the applicant had made up the allegations in order to get a Centrelink benefit. Having regard to the fact, as is later explained, that the applicant on her own evidence told the Fair Work Commission that she was an employee and maintained in these proceedings that she was a director and shareholder; and the fact that the applicant falsified her curriculum vitae when applying for employment; and that the applicant continued to receive Centrelink benefits after the resumption of the relationship for the second period even though she knew she was not entitled, the respondent’s explanation is not fanciful.
Although there was no formal objection taken to the applicant’s evidence in relation to her allegations of violence from the respondent, those allegations are so vague as to be incapable of constituting proof.
No specific allegations were put to the respondent so that he could answer them.
In relation to the allegation that the respondent hit the applicant on the night of their final separation, 6 April 2011, the applicant was cross-examined. She conceded that, before the respondent allegedly hit her, she had pushed him. The applicant’s statement to the police made on 6 April 2011 was tendered as were the records taken by the police in relation to their interviews with the respondent and with Mr D.
The respondent told the police that the applicant was waving her arms around and hitting him on his arms. He raised his arms in front of himself to stop her and his hands connected with her face.
The notes, which were not complete, record that Mr D told the police that the respondent put his hands out and connected with the applicant’s face. Mr D did not corroborate the applicant’s version that she was punched in the face.
The police noted that “there were several other discrepancies between the victims and the childs statements” (as per the original).
The applicant bears the onus of proving that which she asserts.
I am unable to find the allegations of family violence proved.

Did the respondent pay child support after the separation in 2002?

The respondent gave evidence that he had always, during the periods of separation, paid child support for Mr D.
The applicant, in cross-examination, said that after the separation in 2002, she and the respondent reached a private agreement that he would pay child support directly to her in cash. She was unable to recall what the agreed amount was.
The respondent said, in cross-examination, that he paid the child support to the applicant every week when he collected Mr D for the weekend.
There is some corroboration of the respondent’s evidence in his 2002 diary where the respondent on occasions noted the payment of money both to the applicant and to Mr D on a Friday.
The applicant was aware of the fact that child support could have been collected by the Child Support Agency. She had sought an assessment shortly after separation. She was unable to explain why, if the respondent had reneged on their agreement, she did not ask the Agency to collect on her behalf.
It is unlikely that the applicant would have sat back and done nothing had the respondent not paid regular child support. She was not working full time and she was receiving Centrelink. She deposed that between 2002 and 2009 she and the respondent socialised together from which I infer that their relationship was cordial. She further deposed that the respondent paid private school fees for Mr D from 2004 until Mr D finished school at the end of year 10.
The applicant’s position before me in relation to the payment of child support appears to be different from that which she maintained before Loughnan J. who heard and determined the threshold issue of whether a de facto relationship existed. In reasons for judgement dated 15 July 2016, his Honour stated:
The [applicant] deposed that the parties:
… had a private arrangement for child support. We were still a family. Sometimes [Mr Sam] contributed to my day to day expenses. He was not generous but he would help if I requested money.
The applicant did not assert before Loughnan J. that the respondent did not pay child support.
I accept that the respondent paid regular child support.

Did the applicant receive $4,000 from the respondent for her shares in M Pty Ltd?

The respondent deposed that, on about December 2003, he paid the applicant $1,000 for her share in M Pty Ltd and a further sum of $3,000 being half the proceeds of sale of the machinery owned by M Pty Ltd. Although the respondent deposed that the applicant signed a document transferring her share in M Pty Ltd to him, no such document has been produced. The resignation document signed by the applicant has been produced with the ASIC records. No share transfer document was produced.
The applicant denies that she received $4,000 from the respondent as he alleges or that she transferred her shares to him.
The respondent relies on a entries in a diary for the year 2002 in relation to which he deposed:
I continued to use this diary throughout 2002 and later used as bookkeeping records on [the applicant’s] money received from the sale of machinery of [M Pty Ltd] throughout 2002-2003.
The respondent deposed that he deducted from the sum of $4,000 an amount of $566 that he paid for the Green Slip for the applicant’s car.
I do not accept that, in relation to this issue, the diary is a contemporaneous record but rather that it contains a record of calculations that the respondent carried out from time to time. For example, in the entry for Saturday 14 September 2002 the respondent recorded that he paid the applicant $200 “she wanted before she goes to Country B” and that he had “to date” paid the applicant $792. In that entry, he recorded that on 12 March 2003 he gave the applicant $600 “for dentist” and the entry ends “TOTAL as at 16/3/03 $1392”.
Similarly, the entry for the weekend of 14 and 15 December 2002 refers to calculations relating to money borrowed by the applicant in July and notes: “TOTAL TO DATE 29/7/03 $1,892.” The entry then refers to amounts paid to the applicant such as $700 for a Green Slip; “$500 for tax 18/9/03”; “Spent $170 on car, Spark plug – Tow – Igniter 15/10/03”.
The calculation concludes that, as at 29 October 2003 the respondent had paid to the applicant, or, it would appear, on her behalf $3,762.
I do not accept that the information recorded in the diary is contemporaneous and no supporting documents have been produced to verify the asserted payments on behalf of the applicant, with the exception of the cheque butt for the payment of $566 for the Green Slip on 3 September 2002. However, the applicant conceded before Loughnan J. that the respondent:
Sometimes... contributed to my day to day expenses. He was not generous but he would help if I requested money.
I accept that the respondent did pay money to or for the applicant although I am unable to quantify the amount.
I do not accept that the respondent paid the applicant a lump sum of $4,000 in December 2003.

Was the acquisition of Company P a joint venture of the parties?

Although the applicant asserted that Company P was a joint venture of herself and the respondent, she adduced no evidence in support of that assertion.
They had separated before the respondent started working for Company P and were still separated when the respondent acquired the business.
The applicant relied on her assertion that she remained, at all relevant times, a shareholder and director of M Pty Ltd which was ultimately the corporate vehicle used to acquire Company P.
On 15 December 2003 the applicant signed a document on the letterhead of M Pty Ltd which stated:
This letter serves to advise you that I, [the applicant] wish to tender my resignation and will become effective from Friday 19^th of December 2003.
That letter was accepted by ASIC as her resignation as a director.
In cross-examination, the applicant said she believed that she was resigning as an employee. I do not accept that evidence. M Pty Ltd had stopped paying the applicant a wage in 2001.
The applicant conceded that, as at 2003, M Pty Ltd had no assets and no income. The company was no more than a shell that had some use to the respondent as a vehicle to hire out his services to employers. She conceded that, in December 2003, she had no expectation that M Pty Ltd would have any value in the future.
It is likely that the applicant intended to pass her interest in M Pty Ltd over to the respondent. It was of no use to her.
However, there is no evidence that she signed a share transfer and no share transfer was produced from the ASIC records, although ASIC was notified that the share had been transferred to the respondent.
Whatever might have been the parties’ intentions in 2003, it is possible that the applicant remained a shareholder of M Pty Ltd.
However, I accept the evidence of the respondent that he believed that M Pty Ltd was his company alone and that he intended at all times to acquire the interest in Company P beneficially for himself.
The respondent paid a significant amount of money from his own superannuation for the stock of Company P. The whole of the amount, as is later discussed, came from superannuation accrued by the respondent after he and the applicant had separated in 2002.
It was not suggested to the respondent that he intended the applicant to benefit from his contribution of his superannuation entitlement and I accept that he did not.
The applicant said in cross-examination that when she worked at Company P she was not authorised to sign cheques. She was not a party to the Memorandum of Understanding dated 10 August 2007 whereby Mr G acquired 30 per cent of the shares. There is no evidence that she ever attended a meeting of the company or signed minutes.
The applicant received holiday pay and was paid the 17 per cent loading due to an employee.
All of those matters are consistent with the respondent’s assertion that the applicant was an employee, and not a director and shareholder.
In cross-examination, the applicant conceded that, when she was dismissed from Company P she made an application to the Fair Work Commission complaining that she had been unfairly dismissed. In that application she represented that she was an employee of Company P. In cross-examination she said that she made a false representation because she knew that she could not receive assistance from the Fair Work Commission if she was a shareholder and director rather than an employee.
The acquisition of the business conducted by Company P was not a joint venture.

How was the purchase of Company P financed?

The respondent asserts that he “cashed in” a superannuation entitlement of $141,936.39 and used those funds to acquire the shares in Company P and the stock.
The superannuation entitlement had been accumulated after he started working as an employee of Company P in 2002. In cross-examination, the respondent said that the funds had accumulated from the statutory contributions of his employer, augmented by additional contributions from him from time to time. He said that he had put all of his available money into his superannuation. Some corroboration of that evidence is provided by the respondent’s cheque book for his Westpac account ending in …28 which shows a cheque for $7,000 to superannuation in January 2006 and another for $7,500 to superannuation in March 2006.
The respondent tendered three cheque butts for cheques totalling $141,936.39 payable to either M Pty Ltd or Company P. The respondent deposed that he lent the money to M Pty Ltd to fund the purchase of Company P, specifically, the purchase of the stock.
The cheque butts show that the account from which the funds were drawn was the respondent’s Westpac account with the account number ending …28.
Also tendered in the respondent’s case was a bank statement showing $85,092 coming into the …28 account on 11 May 2007 and a debit of $61,936 on 15 May 2007. That debit corresponds with a cheque on the respondent’s account payable to Company P.
I accept that $141,936.39 was provided from the respondent’s superannuation acquired after he and the applicant had separated in 2002.

Did the applicant steal money from Company P?

The applicant, in her role as the only person doing the accounts for Company P, had authority to operate electronic transfers of funds from the accounts of Company P.
In cross-examination, she was taken to numerous electronic transfers of funds from the Company P Account to her own bank account. In 2011, there were 18 transfers of funds in odd amounts from Company P to the applicant’s bank account. She conceded that she had made each transfer. The transfers totalled in excess of $2,500.

The applicant, in cross-examination said variously that the transfers were reimbursement to her of money she had spent to purchase an item needed by Company P or that she made the transfers to fund proposed purchases for Company P. She was unable to recall any specific purchase. She was also unable to show that any funds had been drawn from her bank account to make the purchases for which she claimed reimbursement.
The applicant denied that she made the transfers in small, odd amounts in order to disguise them and so that the respondent did not notice them.
The applicant conceded that on 29 November 2011 she had received the sum of $2,442 for holiday pay including leave loading in cash from the respondent and that she had prepared a cheque for that amount, nominating the payee as a creditor of Company P rather than herself.
Her explanation for that transaction is that she and the respondent discussed how the payment would be recorded and that the respondent instructed her to record it as a payment to a creditor. The respondent denied that this had occurred.
It is an unlikely explanation. The payment was a deductible expense of Company P. There was no discernible benefit to Company P of falsifying the record. The only possible benefit would be to the applicant because the payment would not be shown in the payroll records as taxable income in her hands. It is likely that the applicant falsified the record.
Whilst it is possible that there were occasions when the applicant may have been entitled to a refund of money spent on behalf of Company P, she has not demonstrated that these were such occasions.
It is likely that the applicant transferred money to which she was not entitled from Company P to her own account and that the transfers in 2011 were of money to which she had no entitlement. Whether there were other amounts in 2011 or in other years cannot be ascertained.

How was the purchase of the Suburb L property financed?

The applicant did not make any financial contribution to the purchase of the Suburb L property. Such funds as were used came from the respondent. He contributed $198,000.

What is the value of the Suburb L property?

Mr GG prepared two valuations of the property. The first, which was prepared at the request of the applicant’s solicitors was dated 6 May 2019. In cross- examination, Mr GG said that he was instructed to prepare the valuation from external inspection only and that he relied upon the information that he was given about the state of the interior of the property and also on the strata plan, in coming to his conclusion.
Mr GG said that finding comparable sales was difficult because there are very few duplex dwellings in Suburb L which is comprised primarily of single dwellings.
On the information he had available, he valued the property at $950,000.
When Mr GG received instructions to value the property on behalf of the respondent, he was conscious of the earlier valuation.
Mr GG strongly denied the proposition put to him by counsel for the applicant that he had been influenced by the respondent’s partner, Ms Y, to give a low value and I reject that proposition.
I also reject the proposition, put by counsel for the applicant, that the second valuation cannot be relied upon because the instructions to Mr GG came from Ms Y and not from the respondent’s solicitors.
On the occasion of the second valuation, Mr GG was given access to the property and was able to inspect and measure.
Asked to explain the difference between the two valuations, Mr GG said that he had been influenced by a number of factors.
The primary factor was that he had been misled by the strata plan and had valued the dwelling on the assumption that the “footprint” of the structure had an area of 471 square meters. When he was able to inspect the interior, it was obvious that the building area was much smaller. Mr GG said that he measured the space and found that the entry level measured 82 square meters and the lower level 78 square meters, giving a total of 160 square meters rather than 471 square meters as he had assumed from the strata plan.
Further, Mr GG said, when he was able to inspect the property, he became aware that the lower floor was very dark because the building is built into the side of a steep hill and that the land shown on the strata plan as the rear yard of the dwelling is, in fact, completely inaccessible and unusable.
Mr GG said that, on inspection, he found the general state of the fixtures to be tired and in a worse condition than he had assumed from his instructions when completing the first valuation.
Further, he said that when completing the second valuation, he had been able to locate more appropriate comparable sales.
I accept Mr GG’s evidence as to the reason for the difference in the two valuations which I consider has been adequately explained.
The value of the Suburb L property for the purpose of these proceedings is $800,000.

Were the applicant’s contributions in the second period of the de facto relationship diminished by her gambling?

The respondent asserts that, in the second period of co-habitation, the applicant gambled heavily and her available funds were used to fund her gambling activity rather than being contributed to the purposes of the family comprised of herself, the respondent and their child.
There is no dispute that the applicant was a regular player of poker machines. She said that this was her primary social activity and that she enjoyed it very much.
Counsel for the applicant prepared an analysis of the applicant’s withdrawals at her chosen club and of the income she earned in the corresponding period. That analysis was not accepted as accurate by those representing the respondent and it can be accepted only as an assertion of the applicant’s case.
Thus I accept that the applicant asserts that, between February 2009 and April 2011, the second period of the de facto relationship, her income from all sources was $96,299 and her withdrawals for club activities were $16,264. That income included a pension from Centrelink as well as wages from Company P.
The applicant, in cross-examination, said that, in addition to playing poker machines, she sent money to her sister in Country B from time to time but she provided no evidence of the amounts of those remittances. However, if the applicant diverted money to her sister, that money was not available to contribute to the relationship.
The analysis on behalf of the applicant does not provide the whole picture. For example, on 18 October 2010, the applicant’s account had a balance of $1,289 after her wages and Centrelink payments had been deposited. By the end of that day, the account had a balance of $14.43 after cash withdrawals of $690 at Suburb CC Shopping Centre and $520 at her club. In that week, the respondent’s wage paid into her account was $579. Almost the whole of her wage was spent at the club.
I am satisfied that significant sums from the applicant’s earnings were used by her for playing poker machines and to that extent, those funds were not available to be used for household purposes.
However, there is no evidence that the respondent was obliged to provide her with extra money.
Rather, it would seem on all of the evidence, that the respondent paid the mortgage payments and all of the outgoings on the Suburb L property, and the school fees, and that the applicant’s contribution was to pay for food and groceries. Whatever she had left each week after paying for groceries appears to have been spent at her club.

Has the respondent diminished the pool of available assets and should funds be notionally added back?

This issue relates to the respondent’s interest in a self-managed superannuation fund which was accumulated by him after 2007.
I accept that, when the respondent purchased Company P in 2007, he used his then available superannuation entitlements to fund the purchase.
After the respondent became the owner of Company P, he again started to accumulate superannuation. By 30 June 2014, the respondent had accumulated $192,086 but he continued to make contributions to the fund until the year ended 30 June 2018. In that 11 year period of the contributions to the fund, the parties co-habited for 23 months.
The applicant’s financial contributions during that 23 month period have already been considered. It could not be argued on her behalf that she made other than a very minor contribution to the respondent’s ability to contribute to superannuation during that period.
Thus the superannuation fund in issue was substantially accumulated by the respondent in the period when the parties were separated.
As I understand the contention on behalf of the applicant, this claim arises in the following manner:
·    The respondent, in the financial year ended 30 June 2014, had an entitlement to superannuation in his self-managed fund of $192,086.
·    The respondent drew down money from his superannuation entitlements in order to “prop up” Company P and paid those funds to Company P by way of director’s loan.
·    Not all of the money paid out of the superannuation funds went into Company P. The applicant asserts that some $90,000 is unaccounted for.
·    Some of the funds from the superannuation fund were used to pay legal costs.
·    Some of the legal costs were paid by redrawing money from Company P.
·    Company P paid wages to the respondent’s partner, Ms DD.
·    By repaying to himself the funds that he had advanced for the purchase of Company P, and spending that money, the respondent has diminished the available assets.
The position is not as clear as the applicant would suggest. Between 2015 and 2018 the respondent drew funds from superannuation, but he also paid money into the fund and the fund made income from its operation. The fund also made losses as a result in changes of market value of shares it held so that, in some years, although there was operating income and contributions were paid, there was a negative result. For example in 2016, the investment revenue was negative ($40,644) as a result of loss of value of shares. In other years, although there were minimal contributions made, the value of the fund increased because the value of the shares increased.
The following table seems to represent the movement of funds as at 30 June in each year:

Year

Withdrawn

Income

Contribution

Balance

2014

$192,086

2015

$50,885

$4,914

$35,000

$181,115

2016

$82,000

$8,056

$10,143

$71,077

2017

$32,582

$3,450

$948

$53,082

2018

$20,000

$1,634

$3,934

$53,846

I accept that $185,467 was withdrawn by the respondent from the superannuation fund in the period between 2015 and 2018. However, in the same period, the respondent made contributions of $50,025. Thus, since Company P was the only source of the respondent’s funds, there was a movement of funds both from the superannuation fund to Company P and from Company P to the superannuation fund.
It was put to the respondent in cross-examination that, from the superannuation fund, some $90,600 found its way into Company P.
Over the corresponding period, some $56,000 was paid by Company P to the respondent by way of repayment of his director’s loan. A further sum of about $43,000 was paid to Ms DD by way of wages.
The respondent’s evidence was that he did not receive a wage from Company P after about May 2017.
The respondent in cross-examination said that the money which was paid for legal fees had come from his superannuation fund. The bank statements show that the funds were initially advanced to Company P by way of director’s loan and then, at a later time, paid to the respondent by way of repayment of the director’s loan and then by him to his lawyer.
It is impossible to tell, on the evidence available, what money was used by the respondent to prop up Company P. It is most likely that whatever he drew from the superannuation fund (after taking into account the contributions he made in the same period) was used for a combination of propping up Company P and paying legal fees.
Company P used the funds for its day to day operations and returned some proportion to the respondent personally and to Ms DD. There is no evidence about the salary that should, contractually, have been paid to Ms DD. The respondent’s evidence that she was not paid for long periods when Company P had no money was not challenged.
Doing the best I can, it appears that the respondent’s superannuation, accumulated by him without significant contribution from the applicant between 2007 and 2018, was used by him from 2015 onwards to prop up Company P, to pay wages to Ms DD and to pay his legal fees. Some of those funds were repaid to him by Company P and used by him for day to day living expenses.
There is no evidence of the amount which had been accumulated before the resumption of co-habitation in April 2009; of the amount accumulated during the period of the resumed co-habitation; or the amount accumulated after the parties separated on 6 April 2011.
The funds were accumulated from the respondent’s work in Company P.
The applicant’s contribution to the accumulation was not of such significance as to merit adjustment. Any contribution she made can be offset against the corresponding contribution made by the respondent to the accumulation of the applicant’s superannuation entitlements.
In those circumstances, there is no requirement for any of those funds to be taken into account further.
An alternate approach would be to add back the respondent’s paid legal fees but to take into account, when assessing contributions, the fact that the applicant made no significant contribution or that her contribution is offset by the respondent’s contribution to her superannuation. Each method should produce the same result.
The applicant’s accumulated superannuation of $41,752 was presumably accumulated over both periods of co-habitation. She was paid wages by M Pty Ltd during the first period and by Company P during the second period. After the final separation, she received superannuation contributions from her then employment. As for the respondent, there is no evidence of the value of his superannuation at the relevant dates.
She also received a redundancy payment from her employment in 2018 of $26,561. The relevant employment was entirely after the last separation.
The total amount of $68,313 was spent by the applicant after the receipt of the funds.
Those funds will also be disregarded.

Is the respondent likely to continue to trade?

The respondent tendered documents showing that his lease on the business premises has been terminated. In cross-examination, he said that he had negotiated an extension until the end of July 2019 after which time the business would have no space from which to operate.
The respondent said that he cannot afford to pay an electrician to disconnect the power from the machinery or for the costs of removal of the machinery from the premises.
The respondent deposed that, in 2014, the business made a net loss of $6,361. In 2015 the loss was $40,758. In 2016 the loss was $47,416 and in 2017 the loss was $45,792.
The bank statements of the business for the period between 28 September 2018 and 27 June 2019 were tendered. Between 28 September 2018 and 31 December 2018, the business received $116,644 and paid out $119,149. Between 31 December 2018 and 28 March 2019, the business received $86,497 and paid out $73,559. Between 29 March 2019 and 27 June 2019, the business received $62,065 and paid out $81,637. The closing balance of the account was $28,637.
The business, which previously had, in addition to the respondent, three employees (including Ms DD) now operates only with the respondent and Ms DD. The respondent does the income producing work and Ms DD does administration.
There is no evidence that the respondent is able to secure other premises.
In any event, the respondent is 76 years old and will be 77 years old in November.
There is no real expectation that the business will continue to operate after the end of July 2019.

THE BALANCE SHEET

At the commencement of submissions a joint balance sheet was tendered and is reproduced below.
I will deal with the issues which arise on the document using the item numbers from the balance sheet.

Ownership		Description		Wife/de facto partner’s value	Husband/de facto partner’s value
ASSETS
1	H	X Street, Suburb L		950,000	800,000
2	H	Super unaccounted for		66,000	Nil
3	H	Cash in bank		17,400	17,000
4	H	Company P		30,000	Nil
5	W	Super and Redundancy payments wasted/unaccounted $26,561.19 plus $41,751		30,000	68,312
6	W	Car		900	900
7	H	Vehicle 1		3500	3500
Total		$	$
ADDBACKS
8	H	Legal fees		82,612.79
LIABILITIES
9	H	Mortgage		345,000	348,888
10	W	Legal Fees		125,000	Nil
11	W	Trustee in Bankruptcy		67,000	Not Known
Total		$	$
SUPERANNUATION
Member		Name of Fund	Type of Interest	Wife/de facto partner’s value	Husband/de facto partner’s value
12	H	Sam Family Trust Super	2,097

Item 1 – value of the Suburb L property

For the reasons explained earlier, the property will be valued at $800,000.

Item 2 – respondent’s superannuation

This item will be removed from the balance sheet for the reasons given earlier.

Item 3- respondent’s bank account

There is no document in evidence to establish the balance of the account. The respondent’s figure will be accepted as an admission against interest.

Item 4 –Company P

There is no evidence of the value of the shares or that the shares have any value.
This item will be removed from the balance sheet.

Item 5 – applicant’s redundancy and superannuation

This item will be removed from the balance sheet for the reasons given earlier.

Item 8 – respondent’s paid legal fees

As has been explained earlier, the legal fees were paid from the respondent’s superannuation, substantially acquired after separation. This item will be removed from the balance sheet.
However, consistency requires that the applicant’s paid legal fees of $5,283 not be added back.

Item 10 – mortgage balance

No document was tendered to establish the balance currently owed. I will accept the respondent’s evidence.

Item 11 – applicant’s legal fees unpaid

Each party has both paid and unpaid legal fees and each is entitled to spend whatever amount he or she chooses on legal fees but those fees cannot be visited on the other party.
This item will be removed from the balance sheet.

Item 12 – bankruptcy debt

For the reasons earlier discussed, this item will be removed from the balance sheet.
Accordingly, I find the assets and liabilities of the parties to be:

Owned		Description	Value
1	Resp	X Street, Suburb L	800,000
2	Resp	Cash in bank	17,000
3	Resp	Car	3,500
5	Resp	Superannuation	2,097
5	App	Car	900
Total		$823,497
7	Resp	Mortgage	348,888
Net property		$474,609

Of the net property available, the respondent holds all but $900. However, the parties have been separated for over eight years and they hold no joint property. There is no evidence that the respondent made any contribution to the applicant’s modest assets and, as I have already explained, the applicant made no significant contribution to the respondent’s present personal property. They each have assets acquired after they separated. They have, each, as they were entitled, dealt with the assets acquired after they separated as they wished.
I propose to deal with the matter on the basis that the net equity in the Suburb L property of $451,112 is the only asset available for distribution.

CONTRIBUTIONS

At the commencement of the co-habitation in 1991 the applicant had no significant assets.
The respondent had his interest in I Pty Ltd and BB Pty Ltd, subsequently sold for $20,000 used to fund the start-up of M Pty Ltd.

During the first period of co-habitation, the applicant’s two children lived with the parties. Ms G moved out of the home in 1995 but Ms H remained. The evidence does not establish when Ms H moved out of the parties’ shared home but I infer that it was shortly before the first separation.
The father of Ms G and Ms H did not pay child support or make any financial contribution to their day to day expenses. Their support, including the provision of accommodation, was paid from the money earned by the parties from the business they operated jointly.
After Mr D was born in 1995, the applicant reduced her involvement with the business and worked less hours but her parenting contribution increased proportionately.
For the first period of co-habitation, the respondent’s contributions were greater than those of the applicant, primarily because of the financial support of the applicant’s two children.
The parties separated in June 2002.
After separation, and before the resumption of co-habitation in April 2009, the applicant made no contribution to the accumulation of the respondent’s superannuation which was ultimately used to purchase the business of Company P. No contribution was made by the applicant to that purchase.
Both parties made parenting contributions. Although the applicant was the primary carer for Mr D, the respondent cared for him each weekend from Friday afternoon until Sunday evening. The respondent paid child support in accordance with an agreement between the parents and provided other funds to the applicant from time to time to pay for such things as car expenses and dental bills. He also paid private school fees.
In 2007, when the respondent purchased Company P, the applicant commenced to work there as an employee and was paid a wage.
The funds for the purchase of the Suburb L property were accumulated by the respondent with no contribution from the applicant. The respondent also began again to accumulate superannuation benefits from the money earned by him from Company P. The applicant made no contribution to the respondent’s accumulation of superannuation.
During this period, the applicant’s parenting contribution was greater than the respondent’s but the respondent’s financial contribution was significantly greater than that of the applicant.
The second period of co-habitation commenced in April 2009 when the parties and Mr D moved into the respondent’s Suburb L property.
During the second period, the parties’ parenting contributions were equal.
The respondent made the greater financial contribution, paying the mortgage and outgoings for the shared residence. The applicant’s contributions to joint expenses were reduced by the amount she spent on poker machines although it is not possible to say with accuracy what that amount was. I accept that it was not less than the figure she advanced in submissions of about 17 per cent of her income. There was no equivalent spending by the respondent on his leisure pursuits.
After the second separation in April 2011, the applicant continued to work at Company P until October 2011 when she was dismissed. The wife took money from Company P to which she was not entitled.
There is no evidence about the parties’ respective parenting contributions after separation except that the respondent continued to pay the private school fees until Mr D left school, I infer at the end of 2011.
There is no evidence of what Mr D did between the end of 2011 and October 2013 when he reached 18 years of age. I do not know if he worked, or if he spent time with the respondent, or where he lived. If there were continuing parenting contributions by the applicant, they continued for less than two years. Since there is no complaint by the applicant about child support, I have assumed that, if Mr D was not working, the respondent paid child support. There was no complaint by the applicant that he did not.
After separation, the applicant lived in rented accommodation but the evidence does not allow a finding of whether she lived alone or with another person or how much rent she paid.
The respondent remained in the Suburb L property and paid the mortgage payments and outgoings.
In relation to the property available for consideration, the Suburb L property, all of the financial contributions to its acquisition, conservation and improvement were made by the respondent. His contribution of $198,000 to the purchase is significant in an asset pool of $451,112, representing 44 per cent of the asset pool.
The non-financial contributions made by the applicant to the Suburb L property were minimal.
The applicant’s principal contribution over the period of the relationship were as Mr D’s parent but the respondent also made significant parenting contributions.
Doing the best I can with the evidence available, I assess the applicant’s contribution at 20 per cent of the net equity in the Suburb L property.

SECTION 90SF(3)

The applicant is 65 years of age. She is in receipt of a Centrelink pension. She is unlikely to work in paid employment. She has no significant assets.
The applicant is 76 years old. He is unlikely to be in paid employment beyond the end of July 2019. He is in receipt of a Centrelink pension. His only significant asset is $17,000 remaining from his self-managed superannuation fund.
There is no basis for any further adjustment.

CONCLUSION

The applicant is entitled to 20 per cent of $451,112 or $90,222. The respondent will be given the opportunity to pay her out but, in the event that he is unable to do so, the Suburb L property will be sold.

I certify that the preceding two hundred and fifty-one (251) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 30 July 2019.

Associate:

Date: 30/07/2019

Year	Withdrawn	Income	Contribution	Balance
2014	$192,086
2015	$50,885	$4,914	$35,000	$181,115
2016	$82,000	$8,056	$10,143	$71,077
2017	$32,582	$3,450	$948	$53,082
2018	$20,000	$1,634	$3,934	$53,846