Landy and Pace
[2018] FCCA 1681
•6 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
LANDY & PACE [2018] FCCA 1681
Catchwords:
FAMILY LAW – Property dispute – long de facto relationship – towards end of relationship de facto Husband convicted of aggravated sexual assault on 15 year old girl who he coached (Hobby) – admissions by Respondent of lying to bank about his employment and his income – very unsatisfactory evidence of Respondent who is desperate to retain former residence acquired during the relationship – Respondent admitted in cross examination that the Orders he was seeking were not fair – considerations of length of the relationship and contributions as well as what is “just and equitable” in all the circumstances.
Legislation:
Family Law Act 1975, ss.90SF(3), 90SM(4)(d) – (g)
Family Law Amendment (De Facto Financial Measures and Other Measures) Act 2008 (Cth), s.86A
Cases cited:
Bevan v Bevan (2013) 279 FLR 1; (2014) 49 Fam LR 387; (2013) FLC 93-545
Bonnacci & Bonnacci [2012] FamCAFC 15
Chang v Su (2002) 29 Fam LR 406
Fields & Smith (2015) FLC 93-638; (2016) 53 Fam LR 1
Fox v Percy (2003) 214 CLR 118
In the Marriage of Pierce (1999) FLC 92-844
Applicant: MS LANDY
Respondent: MR PACE
File Number: CAC 80 of 2016
Judgment of: Judge Neville
Hearing date: 22 September 2017
Date of Last Submission: 6 December 2017
Delivered at: Canberra
Delivered on: 6 July 2018 REPRESENTATION
Counsel for the Applicant: Mr S Gardiner
Solicitors for the Applicant: Campbell & Co
Counsel for the Respondent: Mr J Millar
Solicitors for the Respondent: Farrar Gesini Dunn ORDERS
(1)Within 30 days of the date of these Orders, the Respondent is to pay the Applicant the sum of $329,400, being 54% of the agreed value of the property at Property A (also known as the Property A property) of $610,000. Failing this payment being made by the Respondent to the Applicant within the prescribed time (i.e. by close of business on 5th August 2018) the following Orders shall apply.
(2)The parties forthwith do all things and sign all documents necessary to place the property, located at Property A in the State of New South Wales (being Lots) (“the Property A property”) on the market for sale and by way of consequential arrangement that shall be made for the purposes of effecting the sale:
(i)The Respondent shall ensure that all his belongings and other items retained by him pursuant to these Orders be removed from the property within 14 days of the date of this Order taking effect.
(ii)Thereafter the Property A property shall be listed for sale by auction.
(iii)Each party shall choose two of the following agents and the common agent chosen by both parties shall be the agent:
1. Real Estate Agent;
2. Real Estate Agents, Suburb A Office;
3. Real Estate Agent, Suburb A Office.
(iv)The agent shall prepare a list of requirements to make the property ready for sale and Company shall be employed to clear the property and make the surrounding house and garden presentable for sale.
(v)The Respondent shall pay the cost of preparing the property for sale.
(vi)The parties shall each pay half of any advertising and auctioneer costs immediately upon an invoice issuing from the agent.
(vii)If sold by auction, the auction reserve price for the Property A property shall be $600,000.
(viii)If the Property A property is passed in at auction, it shall continue to be advertised for sale by private treaty.
(ix)The conveyancing lawyer shall be Marjason & Sons Solicitors.
(3)Upon completion the proceeds of the sale shall be applied as follows:
(i)Firstly to pay all cost, commissions and expenses of sale;
(ii)Second to divide the net proceeds as follows:
1. 54% to the Applicant; and
2. 46% to the Respondent.
(iii)Should the Respondent fail to clear the property within 21 days at the date of these Orders, he shall be restrained from attending the property and the principal of the chosen Real Estate Agency shall be appointed Trustee for Sale and prepare the property for sale.
(iv)Auctioneers shall be appointed as auctioneer to sell all chattels and items on the property.
(4)Unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money due under these or any other subsequent Orders:-
(i)Each party be solely entitled to the exclusion of the other to all property including choses-in-action in the possession of such party as at this date.
(ii)Monies standing to the credit of the parties in any bank account is to become the property of the party in whose name it is deposited.
(iii)Each party hereby forgoes any claim they may have to any superannuation benefits belonging to or earned by the other.
(iv)All insurance policies to become the sole property of the owner named thereunder.
(v)Each party be solely liable for and shall indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
(5)If either party refuses or neglects to sign (within 14 days of a written request to do so) any documents necessary to effect the Terms of these Orders, the Registrar of the Federal Circuit Court Canberra is hereby appointed to execute all deeds and documents in the name of the husband and or wife pursuant to Section 106A of the Family Law Act 1975 (as amended).
IT IS NOTED that publication of this judgment under the pseudonym Landy & Pace is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRACAC 80 of 2016
MS LANDY Applicant
And
MR PACE Respondent
REASONS FOR JUDGMENT
Introduction
1.When the Applicant commenced this proceeding in January 2016 for the alteration of property interests after a very long de facto relationship (on the Applicant’s evidence, 31 years; the Respondent’s account puts the length of the relationship at perhaps 20 plus years), the Respondent was still incarcerated for the aggravated sexual assault of a 15 year old girl, who also happened to be on the (Hobby) team he coached and on which one of his daughters played. The Respondent was convicted on three counts in the District Court of New South Wales on 25th September 2015 and sentenced to imprisonment for 3 years and 3 months. At the time of his conviction, the Respondent was aged 59 years.[1]
[1] At the time of final hearing, the Applicant was aged 61 years; the Applicant was aged 57 years. The parties filed in Court a “choice of jurisdiction” statement, pursuant to s.86A of the Family Law Amendment (De Facto Financial Measures and Other Measures) Act 2008 (Cth). That document became Exhibit P1.
2.On multiple occasions before and after the Respondent’s release from prison the Applicant sought Orders for the sale of the only asset of substance from the relationship, a semi-rural property of approximately 5 hectares, which had been purchased in 1997 for $270,000 with a mortgage of $190,000.[2] There is a recent valuation of that property, which is agreed and puts the value of it now at $610,000.
[2] In these reasons, for ease of reference this property will be referred to as “the Property A property”. In other documents, it is also referred to as “the Property A property.”
3.At the time of filing his Response and Financial Statement, in May 2016, the Respondent deposed that his income was zero. He deposed further at that time that his weekly personal expenditure was $120.00, he had superannuation of $130,791, and the total value of his property was stated to be $10,624.
4.At that time, he sought Orders whereby the Applicant would be paid $86,850 whereupon she would transfer to him the Property A property. He further sought that 75% of the net proceeds of the sale of the large number of chattels on the Property A property go to him and the balance to the Applicant.
5.Just on these Orders sought, following a relationship of at least 20 years plus, together with 2 children from it (further details are set out later in these reasons), the Applicant would receive the less than princely (or comparatively pauperish) sum of between $80,000 - $90,000, while the Respondent would receive an unencumbered property with a value of $610,000. I note later in these reasons that when all the basic facts were put to the Respondent in the course of his oral evidence, he admitted, albeit with some reluctance, that a distribution of assets in this range would not be fair.[3]
[3] Pursuant to Orders made on 18th October 2016, $40,000 was ordered to be paid by the Respondent to the Applicant, with its characterisation to be determined at a later time.
6.On 16th May 2016, the Court made Orders that provided, among other things, for the Respondent to provide evidence of his capacity to borrow funds to enable him to pay out the Applicant’s interest in the Property A property, and also to advise the Applicant’s lawyers of such capacity (or otherwise) within one month of the date of those Orders. The Respondent did not comply with those Orders. Indeed, it was not until 8th February 2017, when the Respondent filed an Affidavit setting out his attempts to obtain work, that he confirmed his wish to retain the Property A property. By this stage, he deposed (at par.23) that his income was $540 per fortnight, courtesy of a NewStart [disability] pension.
7.In this same February 2017 Affidavit, the Respondent confirmed (par.24) that he was on a waiting list “for spinal reconstruction surgery.” He also confirmed that he had been told by various financial institutions that he would be required to provide a series of consecutive payslips before there could be any consideration of an application for finance. Fixed with this requirement at least as long ago as February 2017, as at the time of the trial six months or so later, he was still unable to provide any institution with such records.
8.In the light of what has been stated already, and what is detailed later in these reasons, the current property matter brings to the fore an acute kind of tragedy that has afflicted all sides of the family. And from this tragedy, of the Respondent’s criminal conduct which I have already outlined, various and intense levels of desperation have arisen – for the de facto Wife, to rid herself of associations (personal and property) that are too painful to maintain let alone any regular reminder to her of them, and for the Respondent, his desperation to have some chance to rebuild a life which, in large measure, hangs in tatters.[4]
[4] Simply for ease of reference and or convenience, nothing else, from time to time I will refer to the parties as either “Wife” or “Husband”, acknowledging that they were in a de facto relationship.
9.For reasons summarised now, and expanded upon later, the Respondent’s evidence was, in my view, patently (if understandably) tinged with a degree of anguish and desolation, and much else besides. No less unfortunately, his desperation clearly led him to give evidence that was almost always alarmingly biased in his own interests and against the interests of the Applicant. There was, and is, precious little of his evidence upon which I could rely in any relevant respect. It only added to my extremely poor assessment of his evidence, as I record later, that he admitted to lying to the Bank (“the Bank”) regarding his employment and his income. His desperation to retain the Property A property, in my view, knows no limits.
10.In making this observation, I am acutely conscious of the High Court’s comments in Fox v Percy in relation to the accuracy, reliability and credibility of witnesses and the unique position of trial judges to assess witnesses.[5] This is especially the case in a matter such as this where almost every aspect of the Respondent’s evidence was, in my view, significantly compromised. Such strong remarks and adverse assessment are not made lightly.
[5] Fox v Percy (2003) 214 CLR 118.
11.Another and earlier example of the Respondent’s “inattention” to detail, or the “inaccuracy” of his evidence was that, in his Affidavit filed 8th February 2017 (par.29), he deposed that he had a “casual job” with (employer omitted). He said that his relationship with this company “started in 2015” and that he had earned approximately $2000 from them thus far. The primary problem with this claim is simply that he was in prison in 2015 and was not released from his term of incarceration until 2016. Either he, and/or his lawyers, did not check this very basic and rather fundamental detail. The Applicant noted this discrepancy in her Affidavit, filed 10th February 2017 (par.28).
12.In his evidence regarding the assault, his conviction and time in prison, the Respondent regularly said that he had no recollection of “that period.” As it turned out, and allowing for his obvious trauma recalling these events, his recollection was quite selective, remembering some matters very clearly (he averred) while not remembering other things at all. His poor, inattentive, sometimes selective and/or lack of recollection only added to the difficulties with his evidence.
13.The Husband’s two daughters from his relationship with the Applicant at the time of the trial were aged 18 and 16 years. One of them does not see her Father at all. The other, on her Mother’s evidence, says that she feels a certain sorrow or pity for her Father and sees him for a limited but regular time each week. They continue to reside with the Applicant who provides, as she has done for some time for all their needs including some counselling to assist them deal with the conviction and incarceration of their Father. As noted later, this seems to be acknowledged by the Respondent, albeit reluctantly.
14.Although there was little medical evidence filed on his behalf (apart from a series of general documents at Annexure O of the Respondent’s trial Affidavit, filed 1st September 2017),[6] the Respondent’s evidence was that (a) he takes quite significant pain relief every day (and requires such relief to enable him to do almost any manual work), and (b) he also takes anti-depressant and nerve-relieving medication. With some hesitation, he confirmed that he needs reconstructive surgery on his spine at some time in the future, which will (he said) restrict the movement of his head to a significant degree. Although the surgery and its general detail is not disputed, no other information regarding this surgery was provided. One would have expected, in the ordinary course of such matters, some expert evidence regarding such potentially critical surgery, including the prognosis for recovery and his ability to work with various limitations. But nothing was provided in this regard.
[6] Summarised, these documents were (a) a patient health summary (dated 15th March 2017), which set out his current medication and some medical history (this included him having “PTSD”, dissociative disorder, and hypertension, among other things), a mental health plan from a GP, and a general letter from a psychologist, dated 27th March 2017, which recorded (on his own report) low mood and high anxiety, and the apparent object of which was to assist the Respondent to spend time with his estranged eldest daughter.
15.In 2014 he spent many months in a psychiatric ward following a breakdown. At par.17 of his trial Affidavit (filed 1st September 2017), the Respondent stated:
In 2014, I was admitted to hospital suffering from PTSD, acute stress, anxiety, psychoses and suicidal depression. My admission was involuntary. I stayed in hospital until 2014.
16.He confirmed that he was arrested and charged whilst in hospital. Absent any other information, including from the hospital, the inference might be drawn that his acute stress and related matters were directly related to the investigation and subsequent arrest and charge for the aggravated sexual assault. But as with much from the Respondent, there is no relevant evidence that would assist the Court on such matters. Thus, questions about the cause of his “PTSD” is unknown, as are the consequence(s) of it. The Court similarly has no evidence in relation to the risk(s) of, and recurrence of, his “psychoses” and or “suicidal depression”. Having such expert lawyers, not to mention the significant legal fees paid, one might have expected such matters to have been addressed – unless it was a deliberate decision not to provide such evidence. The Court simply has no evidence and no explanation about such things – and others noted later in these reasons.
17.One can only say it so many times, but again, notwithstanding his expert legal advice, no expert evidence on these matters was provided to the Court: nothing about his admission to a psychiatric ward, and nothing about his (comparative) mental (and physical) health before his conviction and incarceration, other than a general reference at Annexure N to the Respondent’s September 2017 trial Affidavit, which was a settlement statement from 1999 that recorded him as having a “depressive disorder.”
18.The concern for the Court is that there is nothing available from any relevant expert or treating medical practitioner to explain (a) the cause of the Respondent’s mental health and psychological issues, (b) his ongoing treatment (e.g. the Respondent’s evidence is that he takes Lyrica, and other things, regularly), and (c) any direct (or indirect) link between his conviction and incarceration and his mental and/or physical health. All the Court has is the Respondent’s evidence and some general documents from a general practitioner and a psychologist. If it be the case that there were no such health issues during the relationship – and none are referred to at all by either party – then it might well be a reasonable inference that his multiple health issues (or a majority of them) are directly related to his own criminal conduct and its consequences. But the evidentiary basis for such an inference, however logical and plausible, is thin. Perhaps this was a deliberate ploy or tactic on the Respondent’s part, namely to provide relatively limited evidence on certain areas or topics.
19.The Respondent confirmed that since his release from prison in September 2016, his employment has been sporadic and limited to casual jobs. Quite curiously (and much else), in the last submissions on his behalf (filed 30th November 2017, par.18) the Respondent’s solicitor wrote: “The Respondent’s capacity for employment is hindered by his health issues and periods away from work but he gives evidence, and it is submitted compelling and reliable evidence, that he is likely to become employed soon.” Respectfully, this was and is contrary to the Respondent’s evidence, which is outlined later in these reasons. In short, however, his evidence was neither compelling nor reliable, not least because he admitted that he lied to a bank about his employment (when he was not employed) and his income (when he essentially had no reliable or steady income). Yet his experienced lawyers submit that his evidence was “compelling and reliable”; the basis for such a submission was not properly set out.
20.The parties own a rural property of not insignificant proportions (approximately 5 hectares) – the Property A property. It is in a very significant state of disrepair; from photographs available to the Court “dilapidated” would be a not inapposite description. The photographs confirm the mess of the property: among other things, there are various shipping containers on it, and an old train carriage which the Respondent said he wanted to repair and rent out. However, the Respondent confirmed that it is uninhabitable; he also says that with the regular assistance of a number of friends, it is not as bad as it once was. The significant number of photographs attached to various affidavits (including from a valuer, Mr C) confirm the complete disarray in which the property still remains (or did at the time of that valuation).
21.The Husband’s incomplete tax records were only produced in the course of the trial. He said that he had been searching for them since December 2016, but only located them (in one of the containers on the property) on or around 15th September 2017. Procedurally, and otherwise such late disclosure put everyone, but primarily the Applicant, at some disadvantage. The legal consequences for such non-disclosure (or incredibly late disclosure as here) are well known.[7] The tax records provided by the Respondent only covered the period between 2001 and 2009. And even these records were incomplete, as I note later in a little detail.
[7] See, for example, the comments of the Full Court in Chang v Su (2002) 29 Fam LR 407 at [67] – [70].
22.Given his serious health issues (current and future), his sporadic employment for the past 12 months, his criminal history (not least the nature of the offence), and his understandable and extremely pressing desire to retain the rural property, his evidence had (in my very clear view) a notable and patent level of desperation about it as well as a clear lack of balance. For example, he would rarely give any credit to the Wife either for work done with him on the property or in any other relevant way, whereas she readily and candidly gave credit to the Husband.
23.One of the clearest examples of the lengths to which the Respondent would go to achieve his goal of retaining the property occurred when he confirmed that he had recently lied to a bank when discussing a future application for a loan. The information that he gave the bank was demonstrably incorrect (e.g. that his income was $52,000 per annum) in circumstances where he had had only casual employment since he left prison.[8] He dissembled in his evidence on this matter: he initially said that he did not recollect seeing the bank form. Later he confirmed that he was willing to lie to the bank about his income and related matters.[9]
[8] See the documents that comprise Exhibits A2 & A3 from the Bank.
[9] See T 72 – 77.
24.Further to this, these bank forms confirm that he informed the bank not only that his income was $52,000 per year, but that his current “employer” was simply described as “(employer omitted)” where (he said) he had been employed for 2 years and 2 months. In fact, the Respondent’s oral evidence was that he worked sporadically at a (employer omitted) “for about 2 months” but could not work long hours because of his back and neck pain, and that he regularly relied upon/took significant pain medication.[10] Indeed, in his trial Affidavit (filed 1st September 2017: par.113) he stated (emphasis added):
I had a job for approximately three months between 2017 at a (employer omitted). The job involved ((job description omitted)). I had to take an excessive amount of Panadeine Forte and other painkillers to get through the shifts. I stopped getting shifts in 2017. The manager said “your production is not keeping up with the other employees.”
[10] T 53 & 54.
25.I take this evidence, including his confirmation of taking “excessive” amounts of painkillers, as significant evidence of the extreme difficulty surrounding his capacity to be gainfully employed in any job that involves even relatively modest physical activity. Both his infirmity, and his intake of pain medication, are extremely troubling and must cast further and ongoing doubt on his capacity to be employed on any regular basis.
26.Moreover, his multiple inaccurate statements to the bank confirm, in my view, the desperation of his attempts to secure funds to enable him to retain the current property.
27.Given the matters I have noted regarding his health, his criminal record, his inability to secure regular employment, and his admission that he recently lied to the Bank in relation to inquiries he was making in relation to securing a loan, it appeared clear to me that the Husband sees the rural property as his sole opportunity to secure some means of income (e.g. (employment omitted)). In my view, given its utter state of disrepair and the obvious substantial cost it would take to remedy each and every one of the matters requiring attention, and his physical limitations to carry out the significant repairs required on the property, the Husband’s goal to retain the property borders almost on the fanciful.[11]
[11] A convenient and independent outline of the almost derelict and decrepit condition of the property and matters on it is set out in the Valuation Reports of Mr C and Mr S, in their Affidavits, both filed 31st August 2017. Various graphic photographs are attached to these reports, Mr C regarding the value of the property, and that of Mr S regarding the value of various chattels. In Mr S Affidavit, affirmed 30th August 2017, he stated, at par.4: “Due to the clutter on the property, it was not possible to enter all areas including opening and viewing all the contents of the containers.”
28.Added to this, he has already spent an extraordinary sum of money on legal fees which has come from his superannuation and from borrowings from his family and others. He said he would hope not to borrow more from his family but he intimated that he might do so if necessary.[12] In my view there is nothing he will not do (or say) to try to retain this property. He will continue to exhaust every single cent he can obtain to ensure that he can retain the property and that it not be sold. He sought Orders to give him 180 days from the date of this Court’s Orders to make any payment to the Wife. He has not been able to secure regular work since leaving prison. Since these proceedings began in January 2016, he has had the better part of almost 30 months to secure funds in order to pay out his long-time de facto Wife. He has not been able to do so.
[12] See the Respondent’s trial Affidavit, filed 1st September 2017, par.121(g).
29.What is no less troubling is that I fear that while-ever he has the financial backing of his family (he having no financial resources otherwise to prosecute anything – his Financial Statement disclosed that he has a weekly income of $280.00), he will continue to use whatever litigious means available to him to try to keep the Property A property. I say this primarily on the basis of the multiple and desperate attempts he took, ultimately at great legal and other cost to his family, to prevent the property being sold as sought by the Applicant on an interim basis. If this observation is correct, and it is clearly nothing more than an observation, it would continue to cripple (financially, psychologically and emotionally) or seriously risk doing so the Applicant, the Respondent and the children of the relationship. But his desperation, from much observation of him especially during the trial, knows almost no bounds. Any continuing litigation will continue to incur excessive legal fees, thereby diminishing the modest asset pool appreciably, and ultimately draining the Applicant’s already depleted and limited funds. She does not have access to family funds as the Respondent does. He struck me as someone who had become adept at presenting to some degree, if not having convinced himself, that he was something of a (or the) victim. He seemed oblivious to the consequences for the Applicant and his children of his determined pursuit of retaining the Property A property. So consumed was he by his own plight, that the psychological and financial stress on the Applicant, and his children especially, seemed to be of little or no consequence to him.
30.His health issues, which include the need for back/neck surgery plus depression and anxiety, suggest that he will continue to have the greatest difficulty in securing regular employment. And with the spectre of spinal surgery to which I have referred, one might reasonably speculate that his health issues are only likely to increase with time and age (like the rest of humanity). In my view, an extra 180 days would only stave off the inevitable. All of this is against the backdrop of the Respondent putting no expert evidence before the Court regarding any of his medical complaints.
31.Indeed, in his evidence, the Respondent confirmed (but with no medical evidence to support it one way or the other) that the spinal reconstruction that is required will result in him having a restriction in his neck mobility of 60%.[13] He also said that he had a “working memory condition”, by which I understood him to mean that certain parts of his memory are in fact not working.[14]
[13] See T 70.
[14] T 78.
32.His evidence sought to downplay the Wife’s contributions and to increase his. He was and is a disconsolate and comfortless man, but utterly resolute in pursuing his single goal of retaining the Property A property. I do not say this critically. I say it appreciating the very limited options he has from which he might be able to make a living. Desperation and or determination however do not, of themselves, make the Orders that he seeks “just and equitable.” Indeed, the Orders he sought were (and are), in my view, almost iniquitous and demeaning towards his former de facto Wife and her continued contribution looking after the daughters of the relationship, including during his doubtlessly bleak time in prison, as doubtlessly bleak it was for the Applicant and the children in other ways.
33.Somewhat curiously, but perhaps not, his case was run on the basis that his conviction and consequent difficulties in gaining regular employment was not a relevant factor under s.90SF(3) of the Family Law Act 1975 (“the Act”).[15]
[15] Generally, see for example, his submissions, filed 30th November 2017.
34.For the reasons set out below together with what I have already stated, wherever there is any conflict in the evidence between the parties I should be taken to prefer unquestioningly the evidence of the Applicant. Her evidence was brief but given very matter-of-factly. By contrast, the Respondent’s evidence was troubled, for understandable reasons, and plagued by the patent levels of misery, anguish and despondency that engulf him - all of which were very tangible in his demeanour and significant difficulty in answering certain questions, indeed many of them. In my view, his evidence was regularly flawed by his overt levels of introspection, his inability (or otherwise) to comprehend relatively basic questions, his regular attempt to present his evidence so as to diminish the Applicant’s contributions and to expand or enhance his own contributions, and (as noted above) his propensity to lie to enhance his situation. And in addition to all this, he admitted, after some proper probing and faced with bank documents, to lying. He also failed to give proper and full financial disclosure, and even then, only at the commencement of the trial.
35.In short, it was agreed at the commencement of the trial that there were in fact only two issues ultimately to be determined: (a) what is the just and equitable payment to be made to the Applicant de facto Wife and, (b) what is the capacity of the Respondent de facto Husband either to retain the property or his capacity to pay out the Applicant?[16]
[16] See Transcript (2nd September 2017) p.4. Hereafter, “T” followed by page number.
36.For the reasons that follow, the Orders as sought by the Applicant (subject only to a slight variation in the percentage split of the proceeds of sale of the Property A property – 54% to the Applicant and 46% to the Respondent) are, in my view, just and equitable in all of the circumstances. The sale of that property is to be effected upon the expiration of 30 days from the date of these Orders. Otherwise, the balance of the Orders as proposed by the Wife should be made with respect to what might be called “machinery provisions” to give effect to the substantive Order.
Minute of Orders Sought by Applicant De Facto Wife
37.The Applicant De Facto Wife filed the following Minute of Orders Sought:
1. That the parties forthwith do all things and sign all documents necessary to place the property, located at Property A in the State of New South Wales (being Lots) (“the Property A property”) on the market for sale and by way of consequential arrangement that shall be made for the purposes of effecting the sale:
a. The Respondent shall ensure that all his belongings and other items retained by him pursuant to these Orders be removed from the property within 14 days of the date of these Orders.
b. Thereafter the Property A property shall be listed for sale by auction.
c. Each party shall choose two of the following agents and the common agent chosen by both parties shall be the agent:
a. Real Estate Agent;
b. Real Estate Agents, Suburb A Office;
c. Real Estate Agent Suburb A Office.
d. The agent shall prepare a list of requirements to make the property ready for sale and the Company be employed to clear the property and make the surrounding house and garden presentable for sale.
e. The husband shall pay the cost of preparing the property for sale.
f. The parties shall each pay half of any advertising and auctioneer costs immediately upon an invoice issuing from the agent.
g. If sold by auction, the auction reserve price for the Property A property shall be $600,000.
h. If the Property A property is passed in at auction, it shall continue to be advertised for sale by private treaty.
i. The conveyancing lawyer shall be Marjason & Sons Solicitors.
2. Upon completion the proceeds of the sale shall be applied as follows:
a. Firstly to pay all cost, commissions and expenses of sale;
b. Second to divide the net proceeds as follows:
i. 60% to the Applicant; and
ii. 40% to the Respondent
c. Should the husband fail to clear the property within 21 days at the date of these Orders, he shall be restrained from attending the property and the principal of the chosen Real Estate Agency shall be appointed Trustee for Sale and prepare the property for sale.
d. Auctioneers shall be appointed as auctioneer to sell all chattels and items on the property.
3. That unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money due under these or any other subsequent Orders:-
a. Each party be solely entitled to the exclusion of the other to all property including choses-in-action in the possession of such party as at this date.
b. Monies standing to the credit of the parties in any bank account is to become the property of the party in whose name it is deposited.
c. Each party hereby forgoes any claim they may have to any superannuation benefits belonging to or earned by the other.
d. All insurance policies to become the sole property of the owner named thereunder.
e. Each party be solely liable for and shall indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
4. That, if either party refuses or neglects to sign (within 14 days of a written request to do so) any documents necessary to effect the Terms of these Orders, the Registrar of the Family Court Canberra is hereby appointed to execute all deeds and documents in the name of the husband and or wife pursuant to Section 106A of the Family Law Act 1975 (as amended).
Minute of Orders Sought by Respondent De Facto Husband
38.The Respondent De Facto Husband filed a Case Outline on 15 September 2017 containing the following Minute of Orders Sought:
Payment & Transfer
1. That the Respondent pay to the Applicant the sum of $19,000 (“the Payment”) within 180 days (“the Due Date”) (or such sum as is necessary to achieve an overall division of the net value of the asset pool (inclusive of superannuation entitlements) 70% in favour of the Respondent in light of the remainder of the orders set out below).
2. That at the time of the Payment:
a. The Applicant do all things necessary to transfer to the Respondent all of her interest in the property contained in Property A in Deposited Plan, Property A known as Property A New South Wales (and together referred to as “the Properties”);
b. The Respondent repay to Bank any amount required on the Due Date to discharge mortgage number (secured over Property A;
c. The Applicant and Respondent do all things and sign all documents necessary to discharge the Property A Mortgage.
3. That from the date of these Orders:
a. The Respondent pay all outgoings in respect of the Properties, including keeping current house insurance;
b. The Respondent have the sole use and occupation of the Properties.
4. That if the whole of the Payment has not been made by the Due Date, then:
a. The Respondent pay interest on Payment (or the amount outstanding thereon) in accordance with the Federal Circuit Court Rules; and
b. The Respondent (and the Applicant) immediately do all acts and things to list the Properties for sale.
5. That in the event the Properties are to be sold pursuant to the preceding Order, the following clauses apply:
a. The agent be as agreed, but failing agreement, the Respondent nominate 3 and the Applicant select 1;
b. The conveyancing solicitor be as agreed, but failing agreement, the Respondent nominate 3 and the Applicant select 1;
c. The property be sold by a method to be as agreed, but failing agreement, as recommended by the agent;
d. The reserve price be as agreed, but failing agreement, in accordance with the agreed value for the purpose of these proceedings.
e. The proceeds of sale be applied as follows:
i. To pay the costs of sale;
ii. To pay the amount required to discharge the Property A Mortgage;
iii. To pay any usual or required rates adjustments;
iv. To pay so much of the Payment as is then outstanding, plus interest, to the Applicant;
v. To pay the balance to the Respondent.
6. That if the Properties are to be sold pursuant to these Orders, the Respondent may, at any time prior to the exchange of the sale of the Properties, pay to the Applicant a sum equal to the sum she would have received pursuant to Order 5 (e) (iv), and the Applicant shall comply with Order 2 at the time of the payment of that sum such that the Properties are transferred to the Respondent for consideration of such sum.
7. That if either party refuses, fails or neglects to execute any document necessary to put these Orders into effect 14 days after being requested to do so, and any such refusal, failure or neglect is proved by Affidavits filed and served by or on behalf of the party alleging this, the Registrar of the Federal Circuit Court at Canberra be and is hereby appointed pursuant to Section 106A of the Family Law Act 1975 to execute such document in the name of such party.
Joint Bank Account
8. That the parties do all things necessary to close Bank account number and cause the proceeds to be paid to the Respondent.
Other Property
9. That the Respondent (and if required, the Applicant) deal with the chattels in the List annexed to these Orders as follows:
a. All items marked ‘KEEP’, to be retained by the Respondent (and, from the date of these Orders, be the sole property of the Respondent);
b. All items marked with another individual’s name to be returned to that individual or made available for collection by that individual.
10. That the Applicant be (as against the Respondent), the sole legal and beneficial owner of:
a. Her Vehicle A motor vehicle;
b. The proceeds of any bank account in her name;
c. Her Super Z superannuation;
d. Her Super Y superannuation;
11. That the Applicant pay, be solely liable for (and indemnify the Respondent against all payments and liability with respect to):
a. The loan secured over and/or associated with the Vehicle A motor vehicle;
b. Her MasterCard;
12. That the Respondent be (as against the Applicant), the sole legal and beneficial owner of:
a. The proceeds of any bank account in his name;
b. His Vehicle B motor vehicle;
c. Any other vehicle in his possession;
d. His Shares;
e. His Shares;
13. That except as otherwise provided in these Orders:
a. The Applicant and Respondent each be, as against the other, the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively;
b. The Applicant and Respondent each pay, be solely liable for and indemnify the other against all payments and liability with respect to any debt in each of their names respectively.
Evidence of Applicant de Facto Wife
39.From the limited range of questions put to the Applicant, I note summarily the following:[17]
[17] See T 20 – 30.
(a)Regarding almost all work done on the Property A property during the relationship (e.g. fencing, putting in lawn) the Applicant said that “we” did it, as opposed to only the Respondent doing it;
(b)Nonetheless, the Applicant gave credit for the work done by the Respondent’s brother-in-law in tiling and other work done on a bathroom;
(c)She denied that the relationship ended in either 2000 or 2005, when the parties undertook marriage counselling, rather than end of relationship counselling as was stated by the Respondent;
(d)She said that the state of the property when the Respondent returned to it at the end of 2016 was much the same as when he left it in 2014 (on the Respondent’s account, the property was uninhabitable, with grass in the backyard up to the chin of an adult). In her Affidavit, filed 10th February 2017 (pars.29 ff.), the Applicant deposed (among other things) that the photographs provided by the Respondent regarding the condition of the property included (i) a photograph of daughter Ms G’s room where Ms G allegedly said to her Mother that the state of the room was her “parting gift” to her Father and that he could clean it up, and (ii) a second photograph was of the room in which the Respondent resided prior to going to gaol, and contains only his possessions. In the remainder of this Affidavit the Applicant set out her knowledge of the state of the property. She was not questioned about these matters, or those that follow. Of particular significance, in the light of the Respondent’s submissions, at pars.35 and 36 of this Affidavit, the Applicant said:
I admit that I could have tidied up more of the Respondent’s belongings on the verandah or kitchen but due to the reasons above and for wanting to be away from the house the girls and I were simply not in the right headspace to do very much at all.
I still have counselling and found the clean-up of the property overwhelming. Both girls are now overly anxious.
(e)The Applicant said that the Respondent did not pay outgoings (e.g. rates, electricity, telephone) on the property; she paid them;
(f)She confirmed that the Respondent paid the children’s school fees until 2013;
(g)She said that she maintained the property while the Respondent was “away” but in the end she could not afford to pay someone to regularly keep the grass under control;
(h)In relation to a list of chattels the Respondent attached to his trial Affidavit (Annexure H), which the Respondent said that he could not find upon his return to the property, she said that she had done nothing with them;
(i)The Applicant agreed that parenting responsibilities were broadly equally shared during the relationship;
(j)The Applicant currently works as a (occupation omitted). She earns approximately $50,000 per year. She rents a unit for herself and the girls (while the Respondent lives rent-free with his brother);
(k)There were also some limited questions regarding a particular redundancy payout to the Applicant, which led to certain documents being tendered from the (employer omitted) (Exhibit R1).
Evidence of Respondent de Facto Husband
40.The Respondent’s evidence, perhaps unsurprisingly, was somewhat more extensive than that of the Applicant. Subject to what is set out later, summarily, it was as follows:[18]
[18] T 33 – 88.
(a)The Respondent confirmed that at the commencement of the relationship he had a property at Property B; then later, by agreement, the Applicant borrowed funds (approximately $90,000) which she “paid” to the Respondent who transferred this property into her name. Later still, when the Property B property was sold, funds from that sale were used to purchase the [current] Property A property in 1997, with a mortgage;
(b)In relation to the purchase of the Property A property, the Respondent said (the context of this question and answer was also one where the Respondent was unable to readily give much or any credit to the Applicant, although from his perspective he did so; also, as he often did – I do not say this critically - he had difficulty following some of the preliminary questioning – emphasis added):[19]
[19] T 35.
“But you understand, don’t you, that it was because of the – of her capacity to borrow money to buy Property B from you was also the reason why you had $100,000 or thereabouts to make good the purchase of the Property A property; that’s fair enough, isn’t it?‑‑‑That was the way it was done.”
(c)The Respondent confirmed that the redundancy he received from the (employer omitted) was used to reduce the mortgage over the Property A property. After quite a deal of further questioning, some of which he said he had difficulty following, and still with a degree of diffidence, he affirmed that the redundancy that the Applicant received, also from the (employer omitted), was applied to the benefit of the family;
(d)The Respondent confirmed that apart from some casual jobs he was unemployed;
(e)The Respondent said that he commenced looking for his tax records “last December” (i.e. December 2016) but was able to find a limited number of documents only in the week or two prior to the hearing in September 2017.[20] Such matters were critical in endeavouring to establish what the Respondent was earning over the course of a number of years (e.g. 2001 – 2009) which, in his oral evidence, he was unable to elucidate. Relevant details are set out later in these reasons;
[20] See the extended discussion at T 40 ff.
(f)The Respondent confirmed that he had never paid a cent in child support;[21]
[21] T 46.
(g)He contended that he and the Applicant effectively shared parenting duties/responsibilities. For my part, as with some of his other evidence, his answers and comments here were less than convincing particularly in relation to the care of the children when they were very young. His claim that he took them to his workplace, when they were very young, stretched some areas of belief. It may simply be that the years have dimmed his clarity of recollection, as he acknowledged in certain other respects. He also seemed very strongly to equate his love for his daughters, which I accept, as evidence of the nature and extent of care he provided to them, which I do not accept in its entirety;
(h)The Respondent said that there was no “socialising” as a family unit between 2003 and 2014. For my part, little or no “socialising” does not, without more, indicate the end of a relationship;[22]
[22] T 49 – 51.
(i)There followed a series of questions regarding (i) the Respondent’s use of funds that were withdrawn from Super Y Superannuation account for his legal expenses, and (ii) his employment, which he confirmed was more “off than on”. To say that his evidence was somewhat difficult to obtain and or to follow, is something of an understatement, as the following exchanges indicate (emphasis added):[23]
[23] T 51 – 55.
MR GARDINER: And the next one is 135, which is exhibit J, I’m just going to be referring to when I ask these questions.
Sir, as at 30 June 2013, you might recall you had, in Super Y, the sum of about 177 thousand-odd dollars midway through 2013; do you recall that?‑‑‑No, but if that’s what the document says, that would be correct.
Right. And it’s the case, isn’t it, that throughout that period, June 2013 to June 2014, you withdrew seventy-eight and a half thousand dollars from that Super Y account, didn’t you?‑‑‑I believe so, yes.
Yes. And you spent that, didn’t you?‑‑‑Sorry. Was that a question?
You spent that money, didn’t you?‑‑‑Yes.
And just as – and now, your Honour, I’m referring to page 135.
And bearing in mind you’re in jail from, what, 2016 – is that right?‑‑‑Yes.
But between 30 June 2016 and 30 June this year, you’ve spent another hundred and three and a half thousand dollars from that same Super Y account; that’s right, isn’t it?‑‑‑If that’s what it says has been withdrawn, it has been withdrawn.
You withdrew that money and you’ve spent it; is that right?‑‑‑Yes, if that’s what it says has happened.
And part of your superannuation money you spent defending or at least making payment to solicitors that were acting on your behalf in respect of your criminal proceedings; that’s right, isn’t it?‑‑‑In 2014.
So is the answer “yes”?‑‑‑Yes.
Yes. And other moneys that you’ve had the benefit of because of your superannuation you’ve spent on what exactly?‑‑‑What period are we talking about?
Well, say, from 2014 to now, because you would agree with me – I mean, you haven’t gone on expensive holidays, have you? I mean, I just don’t know – I’m just wanting some clarity, sir, to where this money has gone?‑‑‑Okay.
See this money that I’ve just referred to from Super Y ‑ ‑ ‑?‑‑‑I can’t see ‑ ‑ ‑
And there’s a bit of it because you took out $78,000 between June ’13 and June ’14, and then, from June ’16 to June ’17, there was a hundred and three and a half thousand dollars; you see?‑‑‑Yes.
Now, pausing there, you weren’t working during those times, were you?‑‑‑Which times?
Well, those two years that I’ve just referred you to: June ’13 to June ’14 ‑ ‑ ‑?‑‑‑Right.
‑ ‑ ‑ June ’16 to June ’17, this year?‑‑‑Yes to the first, no to the second.
Right?‑‑‑Yes, I wasn’t working in that first period. No, I was working in that second period.
So you’ve been working right up until, what, recently? Are you working now?‑‑‑I’ve had casual jobs. No, I’m not working now. I’m doing some casual work ‑ ‑ ‑
Have you put in your ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ (occupation omitted) for (employer omitted).
Right?‑‑‑Normally Canberra to Town N, or Canberra to Town O, or Canberra to Town P.
Right. And have you completed your 2017 tax return?‑‑‑No.
Have you seen – do you have an accountant?‑‑‑No.
No. So you do your own tax returns?‑‑‑Yes.
Right. So do I take it the – just using the last 12 months, if I may, that is, referring to 30 June 2016 to 30 June 2017 – do you say the vast majority of the moneys that you’ve spent from the Super Y, your superannuation, that is, the hundred and three and a half thousand dollars, that has gone on, what, living expenses? I’m just trying to find out where the money has gone, sir?‑‑‑No. The vast majority wouldn’t have gone on living expenses. No.
No. Right. Now, you’ve paid lawyers $90,000; is that right?‑‑‑Yes.
Is that where all the money went?‑‑‑No.
No? Well, you’ve been working in this last financial year, you’ve said?‑‑‑Yes. Yes, I’ve had some casual jobs. Yes.
You’ve had some casual jobs ‑ ‑ ‑?‑‑‑And two other jobs as well.
‑ ‑ ‑ and what have you earnt from that?‑‑‑I can’t recall.
You can’t recall how much you’ve earnt?‑‑‑Correct.
How many casual jobs have you had?‑‑‑I was working for (employer omitted) for about two months. I worked with (employer omitted) casually, off and on. I’ve done (employment omitted) for (employer omitted), on a casual basis, since January, off and on.
HIS HONOUR: When you say “casually, off and on”, how much is on and how much is off?‑‑‑More off than on.
Yes, but I guess ‑ ‑ ‑?‑‑‑He would ring me if he couldn’t do a job. Like, I did a job for him two weeks ago, one job. He has got a job for me next week.
So might it be one job every couple of weeks?‑‑‑Yes, but then about three months ago, I had a whole week’s worth.
Sorry?‑‑‑Then about three months ago, I had a whole week’s worth. They’re hoping to get new contracts. So – I – they generate the work; I don’t.
MR GARDINER: And ‑ ‑ ‑
HIS HONOUR: Sorry. So, say for those one-off jobs, how much do you get paid for that?‑‑‑If it was a trip to Town N, I would get $200, out of which I take my petrol and things. If it’s Town O, the same; I get $100, out of which I take petrol.
Right?‑‑‑If it’s doing (employment omitted) with (employer omitted), we share the cost of the materials and then share the – share the payment.
And what would the payment be?‑‑‑We did a – (employment omitted) and I think the – we got paid 8000. I think about three of that, three and a half, came out as expenses.
But can I ask you this, though – and again I’m not trying to cut across Mr Gardiner, but at paragraph 113 of your affidavit – this is where you talk about the (employment omitted)?‑‑‑Yes.
Right? You say that it was approximately three months – I thought your evidence just now was ‑ ‑ ‑?‑‑‑Yes, two to three months, yes.
‑ ‑ ‑ approximately two months, but anyway, whatever. If a job involved (duties omitted), you had to take an excessive amount of Panadeine Forte and other painkillers to get through the shifts?‑‑‑Yes, Lyrica and meloxicam as well.
Sorry?‑‑‑Lyrica and meloxicam as well. Gabapentin, meloxicam.
Right. But Lyrica is more of a ‑ ‑ ‑?‑‑‑Nerve ‑ ‑ ‑
A nerve ‑ ‑ ‑?‑‑‑Nerve pain.
Yes. Well – then you say:
I stopped getting shifts in May, and the manager said, “Your production is not keeping up with other employees.”
?‑‑‑Correct.
So – again, it’s a question. I’m not being critical. Just a question. If you had trouble (duties omitted) and you were on significant painkillers ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ (a) how can you do the manual work and (b) how can you do any of the myriad number of repairs that are obviously necessary in relation to the property, leaving aside that I’m told in your earlier affidavit – and Mr M seemed to suggest that it wasn’t disputed even though that it’s not in your current affidavit – about you being on a waiting list for spinal surgery?‑‑‑Yes.
So how do you reconcile not being able to continue (employment omitted)‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ being on heavy painkillers ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ with being able to do the mountains of repair and remedial work at the property, where you’re not able to earn much money, it would seem?‑‑‑At the property at Town M? Yes?‑‑‑Yes. I – I have friends help with the heavy work, any heavy work that’s required, like when we did the – the cleaning up. Again, I take massive amounts of painkillers. I have three friends who come and help me when they can. I had Mr T come and help me for four weeks straight, the initial clean-up, to make it fire-safe. I – I can do the lighter work and I do some of the heavy work if I feel I have to, but then I pay for it later.
But you’re still planning on having this back surgery; correct?‑‑‑Neck surgery. Yes.
Sorry; when?‑‑‑Neck surgery.
Neck surgery. I thought it was – spinal reconstruction is what ‑ ‑ ‑?‑‑‑Yes.
That was the way that it’s described in your affidavit?‑‑‑Yes, the cervical vertebrae, top of the spine.
But you don’t know when that’s going to happen?‑‑‑No. That’s the waiting list.
But how long – it’s a very general question, I know, but how long do you think you’re going to be able to keep doing whatever it is that you would like to do, being on such heavy painkillers, where you had trouble (employment omitted)?‑‑‑ it’s a repetitive job. That’s where – that’s where that hurts. It’s not the heaviness of the job; it’s the repetitiveness of it. But, yes, I need to work. I’ve got to keep my mind busy on something, but the problem is I – there’s so many things I can’t do.
I understand that. And that’s one of my questions – is given the myriad number of jobs that the property obviously requires ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ how are you going to be able to do that?‑‑‑If ‑ ‑ ‑
I mean, you’ve already told me that you’ve got ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ friends ‑ ‑ ‑?‑‑‑I do. I’ve got three particular friends who help a lot. And if the maintenance is maintained, there’s not many heavy jobs, to start with, because you prevent it by doing preventative maintenance.
(j)And further, in my view, the Respondent’s more “aspirational” assessment of his employment and financial capacity is also readily apparent from the following further exchanges (emphasis added):[24]
[24] T 56 – 57.
Where, in the financial statement, sir, does it talk about your casual employment that you’ve just given pretty good detail about? Do you want that document – have you got that document in front of you? Have you got that?‑‑‑No. I don’t.
I can give you a copy. Might I provide the witness with this?
Now, you would recognise that document because that’s your signature on the front page, isn’t it?‑‑‑Yes.
So just have a look at that and see where it is that you include in that document, which you have sworn and been drafted no doubt with the help of your solicitor, where is it that you have mentioned there your casual employment that you have done in the most recent financial year, ’16/17?‑‑‑I can’t see it.
Yes. That’s because it’s not there, is it?‑‑‑If I can’t see it, I would assume so, yes.
Yes. Because you would have been very careful about, and it would have been explained to you no doubt from your solicitor, that that was you swearing to tell the truth in that document?‑‑‑Yes.
Anyway, there’s nothing there about your employment. What is there though, interestingly, is the amount that you earn, which is $280 a week, isn’t it, sir?‑‑‑That’s the equivalent to Newstart I’m on, disability payment.
And I’m suggesting to you, sir, that on that basis alone there is absolutely zero chance of you to obtain funds from any financial institution sufficient to make a payment to my client to avoid this property at Property A to be sold. What do you say about that?‑‑‑I say you’re wrong.
Wrong?‑‑‑Yes.
Banks are falling over themselves, are they, to give someone on $280 per week a loan of hundreds of thousands of dollars. Is that your understanding?‑‑‑No.
No?‑‑‑Do you know of any banks doing that?
No. Because you would need to speak to them, wouldn’t you, sir, because ‑ ‑ ‑?‑‑‑I have spoken to the banks.
Have you?‑‑‑Yes.
Yes. Well, you have said that in your affidavit, you have spoken to a number of them[banks] and ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ none of them have given you any indication that they’re going to extend to you a loan, have they?‑‑‑Yes, they have.
Well, that’s news. That’s not in your affidavit, is it?‑‑‑What?
That a bank has provided you with an indication that they’re going to give you a loan?‑‑‑No. They will provide me with a loan if I can get a job and produce payslips.
Which you haven’t got?‑‑‑Correct, at this stage.
And you want six months for that to happen. Is that right?‑‑‑Yes.
Yes. Despite the fact that these proceedings have been going now for what, 18 months, thereabouts, two years. You have known all along, sir, haven’t you, that it’s going to be impossible to do justice to my client and not sell Property A. That’s right, isn’t it?‑‑‑No.
(k)The Respondent confirmed that he was not paying any rent where he currently lived with his brother; he did casual jobs in lieu of rent. But even with these casual jobs, where there was no suggestion that they were “repetitive” which the Respondent said was the affliction with working in (employment omitted), he remained on very heavy pain and other medication. He said he tried to work “several hours” each week (emphasis added);[25]
HIS HONOUR: But you’re still on painkillers though?‑‑‑Yes. I’m on a lot of painkillers.
How much?‑‑‑I take eight Panadeine Forte a day. I have Lyrica twice a day, morning and evening. I have meloxicam once a day.
The Lyrica is sort of more like a mood stabiliser though, isn’t it?‑‑‑Which one?
[25] T 58 - 59.
Lyrica is more a mood ‑ ‑ ‑?‑‑‑It does both. It’s – it’s nerve pain ‑ ‑ ‑
A mood stabiliser?‑‑‑Nerve pain and antipsychotic.
(l)There was a lengthy discussion about payment of a telephone account, payment of electricity, and the locality (and condition) various chattels. In my view, it did not shed any relevant light on any particular issue. True it was, contrary to earlier assertions, that the Respondent confirmed that a previous item was found at his brother’s place, that a certain kind of bike was found crushed under a fallen tree, a camera that was once said to be lost was found by the Respondent, and likewise found later by the Respondent were a “HD dust extractor with ducting”, the sliding panel saw, and some fire-fighting pumps;[26]
(m)The Respondent confirmed, to the degree that he was able to do so, that he had been informed by his parole officer that he was unable to make any application to borrow funds until 12 months had lapsed from the date of his release from prison.[27] Although it was never argued on this basis, and never earlier notified to the Court, this may explain, in part, why there had been such desperation on the Respondent’s part to resist every attempt by the Applicant to sell the Property A property at various and multiple interim property hearings;
(n)The Respondent was taken to his tax assessments for the period 2001 – 2009, noting that there were no assessments for the years 2003 and 2009.[28] These were part of the records provided only in the course of the morning of the trial. Those records disclosed very modest income that ranged from $6259 in 2001, $9024 in 2006, to $23,208 in 2007. It was against this background of assessed income that the Respondent was asked questions regarding the income of $52,000 that he had stated to the Bank (“the Bank”). The Respondent said that he did not recall seeing the documentation from the Bank, and that he did not say to them what his income was. There was no other evidence provided by the Respondent as to how the Bank recorded this information in its documentation regarding the Respondent’s “work” and “income”. Presumably the Bank did not just invent this information; it must have come from somewhere, presumably the Respondent;[29]
(o)The Respondent confirmed, with a modest degree of reluctance, that a limited number of improvements made to the property during the course of the relationship were in fact also contributed to by the Applicant, other friends, and the Applicant’s family; the rest he said that he did;[30]
(p)At the end of his cross examination, I canvassed with the Respondent the following matters: (i) his medical history; (ii) his work history since leaving prison (to this the Respondent said that prior to 2014 he had a strong work history – but he did not address the tax returns/assessments that are in evidence before the Court between 2001 and 2009 which highlight a very modest income); (iii) his extensive legal fees and his reliance upon his family to continue to meet them; (iv) an informal “hand-shake” agreement with his brother to receive a sizeable part of the profits from the sale of the brother’s house (there was no evidence of this “informal agreement”).[31] All of the above led to the Court asking the Respondent about the basis for his confidence in being able to obtain any loan. For my part, his responses were, at best, implausible, and not only because there is no expert medical evidence before the Court regarding his spinal surgery, which, in a worst case scenario, could be totally debilitating for him. But generally, his assessment of his stellar income-earning capacity is not supported by the evidence he provided. In fact it was severely undercut by it;
(q)Finally, I asked the Respondent to comment on what seemed to me the manifest inequity in the Orders he sought. The basic proposition was that, for a relationship measured in decades, where both parties worked and cared for the family (albeit with some dispute regarding the detail and percentages of the care and other matters provided), he was proposing that the Applicant receive $59,000 and he would receive an unencumbered property worth approximately $500,000. I should note that the discussion only involved the real estate, the principal asset of the property pool. Although it took a number of questions to get him to focus on what was being asked, ultimately he agreed that the Orders he was seeking were not fair.[32]
[26] See the general discussion at T 59 – 67.
[27] T 68.
[28] Those tax records became Exhibit A1.
[29] T 72 – 76.
[30] T 77 – 79.
[31] T 81 – 84.
[32] T 84 – 86.
41.In relation to the delicate issue of the impact on the Applicant (and the children of the relationship) of the Respondent’s crime and time in prison, and particularly in the light of the Respondent’s post-hearing submissions, it is as well to set out the relatively brief exchange with the Respondent and Counsel for the Applicant (emphasis added):[33]
[33] T 46 – 49. I should note that, at times during the trial, the Respondent did not, and could not continue with his evidence. He seemed to “freeze”, in a manner of speaking, and simply put his head down, or into his hands. The Court took a break to enable him to regain his composure.
And pausing there, you would also agree with me, wouldn’t you, sir, that your conduct leading to the criminal charge and conviction and sentence was conduct that had a detrimental effect on both your girls and my client, your ex-de facto wife?‑‑‑My charging and jailing would have had a detrimental effect on them, yes.
And it would have made my client’s job – her task of caring for and raising your two daughters much more difficult, wouldn’t it?‑‑‑Yes. It put the whole load onto her.
Yes. And would you agree with me that the fallout for that continues?‑‑‑I don’t know.
Well, you’ve read my client’s affidavit, haven’t you?‑‑‑Yes.
And you’ve read where she speaks of the counselling that Ms G has had to undertake?‑‑‑Yes.
And you understand that it’s a topic that is extremely difficult for her to think about, let alone to put in writing?‑‑‑Yes.
That is, of my client?‑‑‑Yes.
Understand that?‑‑‑Yes.
Now, you raised it with Ms Landy – that is, my client – in 2013, didn’t you, sir, that it would be a nice thing to do to bring this 15-year-old girl into the family unit, didn’t you?‑‑‑No.
Well, she came to stay with you, didn’t she?‑‑‑Yes. She stayed for ‑ ‑ ‑
And you knew her beforehand?‑‑‑Yes.
Yes. She was actually a friend of Ms G’s, wasn’t she?‑‑‑No.
They played (Hobby) together?‑‑‑Yes.
Yes. So I’m suggesting to you, sir, that you raised the possibility of this girl coming to live with the family unit at Property A with my client?‑‑‑No.
You raised it with her, didn’t you?‑‑‑No.
So she just rocked up one day, did she?‑‑‑She came for a visit for a weekend, from my recollection. For – for a night, I think, the first time.
Yes. And thereafter, how long did she stay?‑‑‑She stayed that night and I took her home.
And thereafter?‑‑‑From my memory, she stayed once or twice more for short periods.
And do you honestly say that you’ve never had a conversation with my client about the fact that you thought it would be a nice thing – given that she was – that is, this young girl – was going through a difficult period in her life – and it would be a good idea for her to come and stay with your family unit during that time?‑‑‑You mean for these visits she had?
Yes?‑‑‑Yes.
And I’m suggesting to you, sir, that the very fact that you suggested such a thing goes completely against your idea that at 2013 you had separated under the one roof from my client. What do you say about that?‑‑‑No.
No?‑‑‑We were still living under the same roof.
So it would be – it would be a usual thing, would it, in your mind, for a man to suggest to his wife that it would be a compassionate thing to do to let this 15-year-old girl come into the house for a period of time, in the circumstances where you were separated under one roof? Is that your evidence?‑‑‑Can you repeat that?
Yes. It would be entirely plausible in your mind, would it, that a man would say to his estranged or separated under the one roof wife at the time – that is, in 2013 – that it was okay to have this girl come and stay, as you’ve just given evidence ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ you did?‑‑‑Yes.
Right. So I suggest to you, sir, that the reality of the situation is that you suggested that, knowing full well your wife – that Ms Landy wouldn’t have a problem with it because you were still in a relationship and you were until you left the premises in 2014?‑‑‑No.
HIS HONOUR: So when this girl came to stay at your residence, where did she sleep? Was she sleeping with one or both of your girls?‑‑‑She slept in the foldout sofa bed in the family room.
Each time when she stayed?‑‑‑Yes.
MR GARDINER: Pardon me for a minute, your Honour.
Now, you entered a plea of guilty to the charge – and correct me if I’m wrong – of aggravated sexual assault; is that right? Do you need a moment, sir?
HIS HONOUR: Mr Pace, do you want us to give you a few moments?‑‑‑Yes.
The court will temporarily adjourn.
MR GARDINER: Your Honour please.
ADJOURNED [12.13 pm]
RESUMED [12.23 pm]
HIS HONOUR: Yes, Mr Gardiner.
MR GARDINER: Thank you, your Honour.
Sir, my question before the break was that you entered a plea of guilty to the charge of aggravated sexual assault; is that right?‑‑‑I have no memory of that whole period.
Well, what do you understand you served two years in jail for?‑‑‑Yes.
What for?‑‑‑Sexual assault.
Thank you. And it’s true, isn’t it, that the girl that you assaulted and who you said only stayed for a night at a time, in fact, stayed for a week at a time; that’s true, isn’t it?‑‑‑I have no memory of that whole period.
Well, it could be right, couldn’t it?‑‑‑It could be, but I doubt it.
Thank you. And – this is the last question on the topic, your Honour.
The assault, sir, took place in the former de facto marital home; that’s right, isn’t it?‑‑‑I have no memory of that whole period.
42.As I apprehended these questions, they were primarily for the purposes of (a) the Respondent acknowledging the significant difficulty for the Applicant in her total care of the children and the ongoing difficulties his conduct and incarceration have caused; and (b) confirming that the parties remained in a de facto relationship for a period longer than that asserted by the Respondent. It also showed or confirmed the Respondent’s difficulty to recall certain matters. However, in the absence of relevant medical evidence, it cannot be known exactly what the Respondent meant by “having no memory of that whole period.” For example, it is not clear whether the Respondent was attempting to say that, consciously he has shut out all of memory of that time, or that he has actually lost his memory of that time. And if it is the latter, what then does the Court do about evidence of financial matters from the same period? How can that evidence be reliable if, on his own account, the Respondent has no memory “of that whole period”? Thus, this is yet another significant and problematic area of the Respondent’s evidence.
43.Further to this I asked whether any documents relating to the conviction and incarceration were to be tendered. None were provided during the trial and came only after a series of questions put to the Respondent’s solicitors, post the trial, and even then, only with some diffidence and with written submissions, which are set out below. Relevantly the Respondent’s Certificate of Conviction will be admitted into evidence as Exhibit R4. Its primary relevance is not, and was not, in relation to the offences charged and the conviction, neither of which is in dispute. Rather, as it turned out, it set out a number of concerns about the Respondent’s health which he raised or noted but for which he provided no independent evidence. Those matters remain ongoing issues of concern undoubtedly for the Respondent (who continues to take medication for them, on his account) as well as the Court. In the “Custody Orders” set out in that Certificate (dated 24th September 2014, Order 13(a)), there is the following notation:[34]
… receive counselling and treatment including relevant medication … as to his mental health, including conditions of major depressive disorder, anxiety and stress together with pain management and grief and a risk of self harm and his physical health (spine condition)
[34] Similar matters are noted in Order 16 upon the Respondent’s release from custody.
Submissions on behalf of Applicant De Facto Wife
44.The Applicant’s primary submissions, filed 6th October 2017, were as follows:
Introduction
1. These are the wife’s submissions in respect to proceedings as to orders for the final property alteration of the parties in accordance with section 90 SM of the Family Law Act 1975 (the Act).
2. These submissions are divided into four main parts, namely:
a) Part A, which deals with the ascertainment of the pool of property for division;
b) Part B, which deals with the assessment of the contributions by the husband and the wife; and
c) Part C, which deals with the s 90 SF (3) considerations; and
d) Part D, which deals with appropriate orders affording justice and equity to the parties.
3. The approach to property settlement matters is well known. The 4 step procedure was outlined by the Full Court in Hickey and Hickey [2003] FamCA 395; (2003) FLC 93-143, Stanford & Stanford (2012) 247 CLR 108 and Bevan & Bevan [2013] FamCAFC 116.
4. At the outset and for abundant clarity, in the wife’s respectful submission the husband’s credit has not withstood attack. He is a man who has lied to his bank (and the Court about his dealings with it) failed to disclose clearly relevant financial material during the proceedings and failed to adequately complete his financial statement: all to give a different impression (or to mislead) the Court. Where there is a contest between his evidence and that of the wife, the Court would prefer the wife’s evidence every time.
Part A: Ascertainment of pool of property for division
5. The significant asset of the parties is the Property A property.
6. Chattels, monies in accounts, motor vehicles and collectibles are variously valued. The wife wishes to only retain her car and monies in her personal accounts beyond the principal order allowing her 60% of the net proceeds of the Property A property.
7. The husband has spent $181,000 of his superannuation post separation. Given the wife’s preferred orders she is entitled to retain the total of her superannuation ($178,226) in the context of the husband having chosen to access and spend his.
8. The money paid to the wife during the proceedings ($40,000 pursuant to Orders of Judge Neville made 18 October 2016) is most appropriately characterised as maintenance given her need to re-house herself and the children of the relationship.
9. None of the husband’s asserted loans are made out. No evidence was put forward by the lenders and the husband’s evidence should be afforded no weight.
10. The chattels (referred to as “household furniture, plant and equipment”) were valued by Mr S, a joint expert. The valuation was $51,284. The husband did not require the joint expert to give evidence. There is no basis to contend a different value.
Summary of the parties’ assets and liabilities
(leaving aside superannuation and add backs)
Assets
Property A property $610,000
Chattels/cars/accounts/shares etc $165,690
Liabilities
Wife’s Bank personal loan $1,974
TOTAL OF NET ASSETS $773,716
Wife’s preferred distribution to the husband:
40% (after costs) of the proceeds of sale of the Property A property plus
all other chattels and collectibles other than wife’s car & personal accounts worth $23,754
That is:
40% x $610,000 = $244,000
$165,690 less $23,754 = $141,936
Total $385,936
which equates to 50% of the net asset pool.
Part B: assessment of the contributions of the husband and the wife
Financial contributions: s 90SM (4)(a)
12. This case concerns a long de facto relationship of (on the wife’s case) 31 years. To the extent there is a contest in respect to the length of the relationship – it was common ground at the hearing that on either case it was of no moment when the relationship ended. At the commencement of cohabitation, in 1983, the wife had a car and personal affects. She was in full time employment. The wife worked in full-time, part-time and casual work throughout the relationship including (occupations omitted) at (employers omitted) and (occupation omitted) at (employer omitted) where she continues to work.
13. The husband initially owned a property situated at Property B, in the Australian Capital Territory, which was worth $80,000. The parties lived at that place until 1997. In 1997 the wife purchased the Property B property from the husband for $100,000 and paid the mortgage as and when payments fell due, until the property was sold. When Property B was sold the parties then purchased the Property A property for $270,000. A mortgage of $190,600 was secured from the Bank to fund the purchase.
14. The parties occupied the Property A property until separation.
15. The wife received a redundancy payout of $164,767 in 1999 $60,000 of which was applied to family expenses such as the purchase of a motor vehicle and living expenses.
16. The husband was paid redundancy in 1997 of which about $150,000 was paid off the mortgage over the Property A property.
17. Exhibit A1 is emblematic of the problems encountered in accepting the husband’s evidence. The following table is a summary of the husband’s notices of assessment in respect to his taxable income for the years indicated:
2001 $6,259 2002 $5,360 2004 $5,743 2005 $6,134 2006 $9,024 2007 $23,208 2009 $26,652 18. During the above years the husband contends he was paying his income into the joint account from which was paid “the utilities, school fees and rates” as well as “family outings” and “groceries”. The wife denies that but according to the evidence, in the majority of the years for which disclosure was (belatedly) made, precious little could have been contributed by the husband to pay for those things.
Non-financial contributions: s 90SM (4)(b) and (c)
19. The wife contends she was the primary carer of the parties’ two children: Ms G born 1998 now aged 18 and [X] born 2000 now aged 16.
20. The wife “attended to all the day-to-day household duties”. She would take the children to school: see her affidavit page 13.
Post separation
21. The husband conceded in his evidence that from 2014 to 2016 the wife had to do everything for the children due to his incarceration. That task was not an insignificant one given the trauma the children and the wife suffered because of the husband’s criminal conduct.
22. The wife had occupation of the Property A property from separation until re-establishing herself but paid for all family expenses. The husband has been living with his brother rent free since release from gaol but has done nothing to improve the Property A property to make it easier to sell.
23. The wife paid all expenses in relation to the property from 2014 when separation occurred.
Part C: section 90 SF (3) adjustment
24. If the wife’s contentions in respect to the net value of the pool are accepted (that is, the value of the chattels, collectibles and books, add backs in relation to the husband’s superannuation and the rejection of the loans as alleged by him) the wife does not seek any adjustment be made in her favour in accordance with s. 90 SF (3).
Argument in the alternative
25. If however, the pool as urged upon the Court by the wife is not accepted and the pool is found to be what is asserted by the husband then it would be appropriate in those circumstances to afford the wife a greater overall contribution percentage together with some s. 90SF (3) adjustment based on the following matters:
Consideration and Disposition
50.In accordance with the decision of the Full Court in Bevan v Bevan, in my view there is no question regarding the satisfaction of the Court that, as a matter of justice and equity, there should be an alteration of the parties’ property interests.[35] Both parties relevantly sought such Orders.
[35] Bevan v Bevan (2013) 279 FLR 1; (2014) 49 Fam LR 387; (2013) FLC 93-545.
The Evidence: General Comments
51.At the outset, and accepting that what follows is somewhat repetitious in the light of comments made earlier in these reasons, I should say that I prefer and accept the submissions on behalf of the Applicant in their entirety, save that I accept the submissions of the Respondent in relation to the chattels in the light of the Applicant not requiring Mr L for cross examination on this subject.
52.That said and as already observed more than once, in my view it was rather striking that the Respondent provided no independent evidence from any medical expert regarding his acknowledged need for spinal surgery and the possible or likely impact it will have on his health and capacity to work in any relevant respect. This was a serious omission in the Respondent’s evidence. It placed everyone, and now most especially the Court, in an invidious and unsatisfactory position. This is more so the case when there was no explanation given why no such evidence was provided, and where the Respondent indicated that he would do so. Absent this evidence, the Court has only the Respondent’s comments regarding his likely or possible disability regarding his limited head/neck movement. Given how much the Respondent has paid in legal fees it is a most unfortunate gap that such basic and essential evidence was not put before the Court.
53.Moreover, as far as I can see, there is nothing in the Respondent’s multiple submissions that address his (a) neck condition, (b) spinal operation, (c) his very significant consumption of pain relief and other medication, and (d) all of this in the context of a gentleman who is aged 62 years and who has been unable, on his own evidence, to work regularly and or consistently since he left prison, in large measure because of his pain levels.
54.Further, as already noted, the Respondent said in his trial affidavit, filed 1st September 2017 (par.102) that he would attempt to procure updated medical evidence in relation to his “physical and mental health issues prior to the final hearing.” This did not occur. And there was no evidence why it did not occur.
55.Although perhaps formally this aspect should be part of the discussion and consideration under s.90SF(3) factors later in these reasons, it is logically apposite here to note that it follows from the facts just outlined (and as submitted on the Respondent’s behalf at various times in earlier Court events prior to the final hearing) that the Respondent has been unable to secure enough employment to enable him to obtain sufficient, and sufficiently regular, pay-slips to put before a financial institution in order to secure any funds so as to be able to buy out the Applicant’s interest in the Property A property.
56.I remain very troubled about the lack, or very late provision, of the Respondent’s tax records, significantly incomplete as they are. Indeed, I recall here the comments by the Full Court in Chang v Su, at [67] – [70]. Relying upon earlier authority, the Court there said (emphasis added):
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
57.Very significantly in my view, was the Respondent’s extremely poor evidence, including his admission of lying to the Bank regarding (a) his employment and (b) his income. I will not repeat what I said earlier. I regard his evidence as being designed, as far as possible, to minimise the Applicant’s contributions to the family and the relationship generally, and to increase his own well beyond what it in fact was. This was both unfortunate, inaccurate and inappropriate.
58.I regard his evidence generally, unless supported by independent documentary evidence, as highly suspect and unreliable. The desperation of his situation does not give him any licence (a) to lie about his circumstances, or (b) to give evidence that down-plays the contributions of the Mother of his children over the course of a long relationship. True it is that his conviction and incarceration came late in the relationship. It has naturally cast a pall over his life and the lives of his family ever since. It will likely continue to do so in the years ahead to some degree. But his evidence on matters prior to that time was very unsatisfactory in any event for the reasons I have given.
The Property Pool
59.The next matter to be addressed relates to the establishment of the parameters of the property pool. In certain respects, this was something of a distraction, in the sense that (a) there was agreement regarding the value of the Property A property ($610,000), (b) the Applicant sought no Orders in relation to the extensive and discordant list of chattels set out in Mr S Affidavit, filed 31st August 2017, and (c) there are no formal claims by either party on the limited superannuation of each of them. More particularly, the Applicant only sought Orders for the distribution of proceeds from the sale of the Property A property for the reasons set out in her submissions.
60.The only other matter that needs to be added back to the property pool, even if only for an exercise in accounting, are the sums paid by each party for their respective legal fees. In the Husband’s case, those sums are especially significant. In my view, the sums expended on his legal fees regarding his criminal proceedings should also be added back into the pool, at least formally or as an accounting exercise, because the Applicant does not seek to draw down on anything other than the proceeds of sale of the Property A property. The Respondent’s evidence at trial was that legal fees of approximately $107,000 have been incurred.[36] Payment of these prodigious fees has come from either his Super Y Superannuation account or from his family. As an aside, but an important one, I simply observe that the Respondent’s family has obviously been, and remains, generous (especially in bearing the weight of legal fees) and otherwise supportive of him. Understandably, the converse is true: the Respondent remains, it would more than reasonably seem, very heavily reliant upon his family and friends for almost every kind of support.
[36] See T 84.
61.On these bases, the property pool should be as per the “balance sheet” filed in Court and set out below. And for the purposes of these reasons I should be taken to accept the pool as proposed by the Respondent:
| BALANCE SHEET | |||||
| Assets | Ownership | Description | App. Value | Resp. Value | Comments from solicitor |
| 1 | Joint | Property A | $ 610,000 | $ 610,000 | Agreed |
| 2 | Joint | Chattels (Auctions List) | $ 51,284 | $ 12,824 | |
| 2A | Mr L | Chattels | Exclude | ||
| 2B | Mr O | Chattels | Exclude | ||
| 2C | Mr I | Chattels | Exclude | Ownership Disputed, Value Agreed | |
| 2D | Mr T | Chattels | Exclude | ||
| 2E | Mr B | Chattels | Exclude | ||
| 2F | Mr R | Chattels | Exclude | ||
| 3 | Joint | (omitted) books | $ 44,000 | ||
| 3A | Joint | Portrait books | $ 33,000 | $ 311 | Value disputed |
| 4 | Joint | Bank … (estimate) | $300 | $300 | Agreed (estimate) |
| 5 | Wife | Bank … | $ 8,454 | $ 8,454 | Agreed (FS) |
| 6 | Wife | Bank … | $ 3,400 | $ 3,400 | Agreed (FS) |
| 7 | Wife | Vehicle A | $ 6,900 | $ 6,900 | Agreed (Midpoint) |
| 8 | Wife | Contents (post separation) | $ 5,000 | $ 5,000 | Agreed |
| 3 | Husband | Bank Account… | $ 109 | $ 109 | Agreed |
| 10 | Husband | Bank Account… | $ (4) | $ (4) | Agreed TBC by A |
| 11 | Husband | Bank … | $ 307 | $ 307 | Agreed TBC by A |
| 12 | Husband | Bank … | $ 712.00 | $ 712.00 | Agreed TBC by A |
| 13 | Husband | Shares | $ 3,128 | $ 3,128 | Agreed |
| 14 | Husband | Shares | $ 3,600 | $ 3,600 | Agreed |
| 15 | Husband | Vehicle B | $ 1,500 | $ 1,500 | Agreed |
| 16 | Husband | Business 2 | - | - | Agreed |
| 17 | Husband | Business 1 | - | - | Agreed |
| 18 | Husband | 2x Vans | $ 4,000 | - | Disputed as to existence and value |
| Total | $ 775,690 | $ 656,541 | |||
| Add Backs | |||||
| 19 | Husband | Withdrawal from Super Y Superannuation | $ 103,000 | - | Resisted by R (see Item 20C) |
| 20 | Husband | Withdrawal from Super Y Superannuation (separation) | $ 78,000 | - | Resisted by R (see Item 20C) |
| 20A | Wife | Part property settlement | - | - | Characterisation of the $40,000 payment to the wife, to be decided |
| 20B | Wife | Paid legal fees if 20A is not added back | - | $ 27,141 | Paid legal fees |
| 20C | Husband | Paid legal fees by Respondent | - | $ 89,814 | Paid legal fees |
| Total | $ 181,000 | $ 116,955 | |||
| Liabilities | |||||
| 21 | Wife | Bank Personal Loan | $ 1,974 | $ 1,974 | Agreed |
| 22 | Husband | Alleged loan (Mr J) | - | $ 5,500 | Disputed (exclude) |
| 23 | Husband | Alleged loan (Ms C) | - | $ 7,717 | Disputed (exclude) |
| 24 | Husband | Alleged loan (Mr L) | - | $ 24,000 | Disputed (exclude) |
| Total | $ 1,974 | $ 39,191 | |||
| Superannuation (note – all accumulation plans) | |||||
| 25 | Wife | Super Z | $ 46,295 | $ 48,295 | Agreed |
| 26 | Wife | Super Y | $ 131,931 | $ 131,931 | Agreed |
| 27 | Husband | Super Y | $ 24,096 | $ 24,096 | Agreed |
| 28 | Husband | Super X | $ 58 | $ 58 | Agreed |
| Total | $ 202,380 | $ 202,380 | |||
| Financial Resources | |||||
| 29 | Husband | Free accommodation provided for the Husband by the Husband’s brother ($415 per week for 43 weeks) | $ 17,485 | - | Disputed |
| $ 17,485 | - | ||||
Contributions
62.Having regard only to those matters that are directly established on the evidence, I note the following by reference to s.90SM(4) of the Act.
63.First, I note that in his submissions, filed 20th October 2017 (par.10), the Respondent said: “… both parties made substantial contributions during their relationship both to their property and to the welfare of the family.” This was then rather heavily qualified. I do not accept the qualifications. The basic statement is and remains essentially true.
64.Secondly, it seems essentially unchallenged that the main wealth of the parties relates to the Property A property, which was purchased in 1997 for $270,000 with a mortgage of $190,000. The mortgage was mostly paid down using the Respondent’s redundancy received in 1997 in the sum of approximately $180,000.
65.Thirdly, the Applicant’s redundancy in 1999, which totalled approximately $165,000 was paid into superannuation but which was then drawn down for the purposes of family and other living expenses.
66.Fourthly, I accept that at the commencement of the relationship he had a property at Property B; then later, the Wife borrowed funds (approximately $90,000) which she “paid” to the Respondent who transferred this property into her name. Later still, when the Property B property was sold, funds from that sale were used to purchase the [current] Property A property in 1997, with a mortgage. Because of the Respondent’s proper concession, I do not accept that the Respondent’s initial contribution to the relationship was so overwhelming as to provide the “springboard” for later purchases to the degree advanced in submissions. I also do not accept that the Respondent’s submissions regarding his initial contributions, and later, paid sufficient attention and weight to those by the Applicant both regarding her borrowing for the Property B property, and equally the use and application of her redundancy payout for the benefit of the family.
67.Fifthly, the further “contributions” from the Respondent, albeit relatively modest in the sums of $5000 and $20,000 from his parents’ respective estates, and a compensation payment of $20,000, are acknowledged and due allowance ought to be given to them. The Respondent’s evidence (trial Affidavit, filed 1st September 2017, par.75) gives no specific date for these sums other than to refer generally that they occurred “when we started living together” or thereabouts. Accordingly, these amounts were contributed very early in the relationship.
68.Sixthly, the Respondent’s Submissions (filed 20th October 2017, par.12) were subtly critical of the Applicant’s limited evidence regarding her contributions arising from her care of the children and related matters arising from the Respondent’s conviction and incarceration. Apart from the demeaning nature of those submissions, the Respondent’s evidence during the trial accepted that everything regarding the care and welfare of the children relating to and arising from those events fell to the Applicant to provide.[37] It essentially remains the case that everything falls to the Applicant regarding the provision for the children of the relationship. Otherwise, I accept in their entirety the submissions of the Applicant in this regard in particular.
[37] See too the matters detailed in her Affidavit, filed 10th February 2017, especially at pars.35 – 44. At par.45 of that Affidavit, the Applicant stated: “I seek the Orders in my Application in a Case so that the girls and I can obtain certainty and security.” The Respondent seems to be oblivious to such matters or concerns even in relation to his daughters.
69.In assessing the parties’ contributions, I must have proper regard to authority such as Pierce and subsequent cases.[38] In a well-known passage, at [28], the Full Court said:
In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife.
[38] In the Marriage of Pierce (1999) FLC 92-844.
70.More recently, in Fields v Smith, a case that also involved (like the present matter) a long relationship, the Full Court said, at [168]:[39]
… the task is to consider the contributions holistically over the whole period from the commencement of cohabitation to trial and the analysis requires the court to weight all of the contributions of all types prescribed by s 79(4) made by both parties across the entirety of the relationship until the time of hearing, including the post-separation period.
[39] Fields & Smith (2015) FLC 93-638; (2016) 53 Fam LR 1.
71.Neither of these authorities were cited by either of the parties. Accepting that every case is different, I simply note that in Fields v Smith, the Full Court took the view in the light of its detailed consideration of the trial Judge’s reasons and the evidence before him, that in such a long relationship the contributions and the factors under s.75(2) “should have led to an exercise of discretion, ordering that the property be divided equally.” To have done otherwise on the facts of that case, as the trial Judge did, was not “just and equitable.”[40]
[40] These comments are taken primarily from the short, concurring judgment of May J at [198] – [203]. Her Honour concurred with the expansive joint judgment of Bryant CJ and Ainslie-Wallace J. See in particular, in the joint judgment, [158] – [196].
72.It seems to me that the so-called “range” in relation to contributions in the present matter, especially having regard to the entirety and the incidents of the relationship, including post-separation contributions, and having regard to the Full Court’s instruction in Fields v Smith that contributions should be viewed “holistically”, the only real or permissible conclusion to be drawn from the evidence is that contributions should be assessed as equal.
Section 90SF(3) and 90SM(4)(d) – (g) factors
73.The Respondent’s submissions in relation to these matters are, in my view, somewhat inconsistent. First, in the Case Outline (filed 15th September 2017: par.12) there is set out the reasons why, he said, there should be a significant [further] adjustment in his favour. These factors include him having been out of the work force “in the sense of having a permanent full-time job” since 2014, at which time he was involuntarily admitted to a mental hospital for nine months. The submissions go on to refer to the Respondent’s incarceration, and that since his release from prison, he has been “largely reliant on welfare benefits for his day-to-day living expenses and has been unable to secure stable employment.”
74.In later submissions (filed 30th November 2017; par.18), it was submitted that: “The Respondent’s capacity for employment is hindered by his health issues and periods away from work but he gives evidence, and it is submitted compelling and reliable evidence, that he is likely to become employed soon.” It is unclear whether in making this submission, the Respondent’s solicitors were intending to juxtapose or to contrast whatever this “compelling evidence” was with his admission of lying to the Bank about his employment and income, which surely must also be compelling but in a rather different direction.
75.In any event, the following striking aspects of the Respondent’s evidence were not addressed (in addition to his lying to the Bank to which I have just referred):
(a)The lack of expert medical evidence promised by or aspired to by the Respondent regarding any of his medical conditions and prognoses (this should be taken to include his proposed spinal surgery, recovery from it, and likely impairment for work generally);
(b)The lack of medical evidence promised by or aspired to by the Respondent regarding the impact of his multiple medications, including his consumption of significant pain relief;
(c)The absence of expert and or updated medical evidence put before the Court regarding his “mental health, major depressive disorder, anxiety and stress,” which are referred to in his Certificate of Conviction. It seems not controversial that at least some of the Respondent’s conditions just noted are related directly to the impact on himself of his own conduct. If that be true, especially since nothing has been put before the Court to challenge what is recorded in the Certificate of Conviction or to explain matters concerning his abundant use of medication, in my view it rather begs the question how the Respondent can therefore claim an entitlement to a financial benefit in this Court under s.90SF(3) in relation to matters that arise out of his own criminal conduct. Put another way, should the Court accede to his submissions, he would benefit financially from his conviction, incarceration, and the debilitating consequences that have flowed from them, while the Applicant would suffer even more, if that be possible, from the Respondent’s conduct. It would defy, in my view, every precept of justice for the Respondent to benefit financially as a result of his medical and other conditions which have, to a relevant degree (and in the absence any other evidence), been caused by his own criminal conduct – conviction and incarceration. All this said, I should not be taken to penalise the Respondent by virtue of his criminal conduct or anything else. The Court’s assessment is strictly in accordance with the evidence and the exercise of the Court’s broad discretion.
76.True it is that the Wife is gainfully employed, as she has been for many years. She earns approximately $50,000 per year. She continues to have financial and almost all other responsibility for the children of the relationship, accepting their ages. She is aged in her late 50s. For her part, there are no identifiable health issues. There is some degree of counselling still being undertaken by either the Applicant and or the children. She continues to rent a unit for herself and the children for $400 per week, while the Respondent lives rent-free with his brother.
77.The assessment of the factors under s.90SF(3), for hopefully obvious reasons, is delicate and difficult. In the ordinary course of other matters, a person in the Respondent’s condition would likely receive an adjustment in his favour. However, for the reasons given above, (a) the lack of evidence on medical and related issues, and (b) his own conduct and the matters noted by the District Court of his poor if not concerning mental and psychological health (indeed, even in the hearing in this Court, when he was asked questions about his conviction and related matters, he was simply unable to engage and the Court had to adjourn to allow him to compose himself), in my view, on balance the factors under this section should be considered to be generally equal.
78.In Bonnacci, at [61], the Full Court said:[41]
… the so-called fourth step is not an opportunity to make a further adjustment; it is an opportunity for the judicial officer to determine finally how, in reality, a just and equitable order might be achieved based on the circumstances of the case before him or her…
[41] Bonnacci & Bonnacci [2012] FamCAFC 15.
79.The two agreed questions posed at the commencement of the trial were: (a) what is the just and equitable payment to the Applicant, and (b) what is the capacity of the Respondent either to retain the Property A property or his capacity to pay out the Applicant. To answer the latter first: the capacity of the Respondent to retain the Property A property, or to pay out the Applicant, on his own evidence, at its highest is utterly negligible if not impossible.
80.And by way of observation only: not only does the Respondent see himself as a victim of his circumstances, while “blacking out” his memory of all of the circumstances that give rise to his “victimhood.” But also if he was truly or genuinely contrite and remorseful about his conduct and what it has visited upon his family, rather than spend prohibitive sums of money on lawyers, surely he would seek to finalise matters both for his daughters’ sakes and his own. If he pursues further litigation, such a course will simply continue to embroil his family for years to come and render their existence (and his own) captive to (a) discretionary judgments of Courts, and (b) consume and ultimately drain almost everything from the limited asset pool. I genuinely hope my dismal assessment of the Respondent ultimately proves to be incorrect.
81.In this regard, I also note, lest it be thought that my concerns regarding the imposts from ongoing litigation are a unique comment, the following observations by Gleeson CJ in Swain v Waverley Municipal Council, at [2] are apposite:[42]
In the common law system of civil justice, the issues between the parties are determined by the trial process. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal.
[42] Swain v Waverley Municipal Council (2005) 220 CLR 517.
82.To add insult to injury, the Applicant (and the children) put the Respondent and his lawyers on notice very early on in the litigation about the state of the property, how it got to the despairing state it became, and the impossible and shameful position in which he had placed his family. There are a number of examples of this notice, yet in submissions, the Respondent criticised the Applicant for the modest evidence of the toll the Respondent’s actions had taken on her and the family, and was equally criticised for the state of disrepair of the property. Such submissions, if legally permissible, in my view bordered on the offensive. It is sufficient to note the following from the Applicant’s trial Affidavit, filed 31st August 2017 (pars.84 – 97), the Applicant summarised the following matters.[43]
[43] In an earlier affidavit, filed 16th August 2016, relied on in an earlier aspect of the proceedings, obviously while the Respondent was still in prison, the Applicant set out significant detail of the adverse impact on her and the children. In my view, the Respondent was clearly on notice of the painful and deleterious impact his conduct was having on his former long-time partner and their children. It was niggardly, and worse, to seek to minimise the human toll on her and the children.
83.After noting the Respondent’s failure to comply with earlier Court Orders regarding notification of his “borrowing capacity”, at pars.14 and following there is a description of the “state of the property.” At pars.18 and 19, the Applicant stated:
[18] As a result of all the junk, goods and chattels at the property, the house is in a state of disrepair. Moreover, the house is a health and safety hazard in its present condition. The girls cannot bring anyone home for company and are very distressed to be still living here. We are all ashamed of the state but are unable to clear it all due to the Respondent insisting that he wishes to retain the items.
[19] In early 2014, when the girls and I were in Melbourne the Respondent stated that he was renovating the bathroom. When we returned nearly all the bathroom tiles had been removed. A week later the Respondent went to hospital and while in hospital he was charged. He never returned home and that job was never completed. The children and I have been using the bathroom in that state ever since…
84.Later in that same Affidavit (pars.25 – 28), the Applicant deposed as follows:
[25] The Respondent is in prison for having sex with an underage (Hobby) player whom he coached. He did this at our home.
[26] My eldest daughter and I have been undertaking counselling since the charges were laid and we find it very distressing to still be living in the same property that this crime occurred.
[27] My daughters and I are patients of Dr J. Dr J has been concerned about the level of anxiety that we have suffered while remaining in the property and has prescribed medication to assist me.
[28] I am often anxious and in tears at having to remain in this particular property so long after separation knowing what went on there and living in squalor which is too daunting to clear out given I do not want to retain many of the items.
85.I mention these matters – again – simply to highlight that the Respondent has been on notice for a very significant period of time of the immense toll his actions have taken on his family. He now has an opportunity to do something relatively positive about it.
86.And added to all this, as previously noted, the Respondent never provided full and complete financial disclosure. At best, only at the final hearing did he provide some of his income tax assessments. But even that was incomplete. And the most recent of them was for 2009. His declared income from those assessments was extremely modest.
87.Again I record that I prefer and accept the Applicant’s submissions. They are significantly more congruent with the evidence of the parties.
88.In answer to the first agreed question, in all of the circumstances of this troubling matter, noting again that each party is to retain their respective superannuation, modest as it is, and that the Applicant makes no claim in relation to the chattels, the Respondent shall have the further opportunity to pay out the Applicant, based on 54% of the agreed value of the Property A property of $610,000. Thus, he shall pay her within 30 days of the date of the Orders made today the sum of $329,400, failing which there shall be a split of the net proceeds of sale of the Property A property with 54% to the Wife and 46% to the Husband. Otherwise, the balance of the Orders as proposed by the Wife should be made with respect to what might be called “machinery provisions” to give effect to the substantive Orders. In my view, this division of property is just and equitable in all of the circumstances.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 6 July 2018
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