Liu and Kang

[2018] FCCA 2414

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIU & KANG [2018] FCCA 2414

Catchwords:
FAMILY LAW – Property dispute – significant deficiencies in materials filed by the parties - difficulties arising from self-representation of respondent and further complications of interpretation – court required to achieve a conclusion – property division 65/35 in favour of wife – wife seeking to file materials without leave following reservation of judgment – new matters raised to be heard by a different judge.

Legislation:

Family Law Act 1975

Cases cited:

Stanford v Stanford [2012] HCA 52

Kimber v Owners Strata Plan 48216 (No. 2) [2018] FCAFC 58

Applicant: MR LIU

Respondent: MS KANG

File Number: DGC 187 of 2018

Judgment of: Judge Burchardt

Hearing date: 25 July 2018

Date of Last Submission: 25 July 2018

Delivered at: Dandenong

Delivered on: 6 September 2018

REPRESENTATION

Counsel for the Applicant: Mr Kuan

Solicitors for the Applicant: Einsiedels

The Respondent: In person

ORDERS

1. The parties do all acts and things and sign all documents necessary to sell the real property at Property A within 60 days and that the proceeds of sale be applied as follows:

   (a)Firstly, to pay costs, commissions and expenses of the sale;

   (b)Secondly, to discharge the mortgage and any other encumbrance affecting the real property;

   (c)Thirdly, 25 per cent of the remaining nett funds to the Applicant;

   (d)Fourthly, 75 per cent of the remaining nett funds to the Respondent.

2. That the sale of the real property be conducted:

   (a)By an agent as agreed between the parties and failing agreement, as appointed by the President of the Real Institute of Victoria for the time being (“the selling agent”) and the terms of the sales authority with the agent be in accordance with the standard terms;

   (b)At a reserved price agreed between the parties and failing agreement, as determined by the selling agent;

   (c)By public auction not less than 30 days from the date of the appointment of the agent.

3. Unless otherwise agreed, the husband and the wife accept any offer to purchase which is equal to or higher than 95% of the reserve price.

4. The parties do all acts and things necessary including signing all documents to give full force and effect to the provisions of these orders and in the event that either party refuses or neglects to execute an instrument in compliance with these orders, the Registrar of the Federal Circuit Court of Australia is hereby appointed to execute any instrument in the name of the Applicant or the Respondent and do all things necessary to give effect to the instrument.

5. That in relation to the Husband’s accumulation component of his superannuation interest in Super Fund 1 (“the Fund”):

   (a)There be an allocation for the purposes of Section 90MT(4) of the Family Law Act 1975 of the base amount of $35,750 from the Husband’s accumulation component in the Fund, to the wife Ms Kang;

   (b)That pursuant to Section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the husband’s accumulation component in the Fund, Ms Kang shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount of $35,750 pursuant to subclause (a) hereof of these Orders and there shall be a corresponding reduction in the superannuation interest of the husband to who such a splittable payment would have been made but for this Order;

   (c)That paragraph 5(a) of the Orders shall take effect from the operative time, being the fourth business day after the date on which a certified sealed copy of the Orders is served upon the Trustee of the Fund;

   (d)That having been afforded procedural fairness in relation to the making of this Order, this Order binds the Trustee of the Fund;

   (e)That the Trustee of the Fund and the parties in accordance with the obligations set out under the Family Law Act 1975, the Family Law (Superannuation) Regulations 2001 and the Superannuation Industry (Supervision) Act and Regulations 1994, shall do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of and make pay to Ms Kang in accordance with this Order;

   (f)That each party and the Trustee of the Fund has liberty to apply, on not less than three (3) business days’ notice, in respect to the implementation of the super splitting orders.

6. That within 28 days of this Order being made:

   (a)Ms Kang shall serve a copy of this Order upon the Trustee of the Fund:

   (b)Ms Kang shall serve a Notice upon the Trustee of the Fund pursuant to Regulation 72 of the Family Law (Superannuation) Regulations 2001.

7. That the husband be and is hereby restrained by himself, his servants and/or agents from executing a Binding Death Benefit Nomination in favour of any person or doing any act or thing that would render any part of his accumulation interest in the fund a non-splittable payment within the meaning of Regulation 12 of the Family Law (Superannuation) Regulations 2001 AND the Trustee of the Fund is ordered to give effect to this Order.

8. The Response filed by the respondent wife on 7 August 2018 be adjourned before Judge O’Sullivan for further consideration on a date and time suitable to his Honour.

9. The wife retain for her sole use and benefit, the motor vehicle P in her possession and be responsible for all payments/monies owing in respect thereof.

10. Otherwise each party retain their own furniture and chattels in their possession to the exclusion of the other.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 187 of 2018

MR LIU

Applicant

And

MS KANG

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a property dispute in which the self-representation of the respondent, together with regrettable deficiencies in the materials filed by the applicant husband, present the Court with very significant forensic difficulty.  These difficulties were only compounded and increased at the trial of the matter in which the respondent wife, who was clearly under considerable strain, was all but unable to participate in the proceeding.

2. For the reasons that follow, and emphasising that the Court is doing the best it can in unsatisfactory circumstances, I have decided that the property pool of the parties should be divided in the proportion of 65 per cent to the wife and 35 per cent to the husband.

The parties’ affidavits

1. The husband’s affidavit filed contemporaneously with his initiating application on 22 January 2018 says but little.  He deposed to the marriage with the respondent on 1999 in (country omitted).  He deposed at paragraphs 2-3:

   “2.    … I owned a house in (country omitted) prior to the marriage and Ms Kang and I lived in this house until we migrated to Australia in 2007 with our two children [X] born 2001 and [Y] born 2003.  We separated in early 2017, however, I care for the children in the former matrimonial home at Property A (“the property”) as Ms Kang has re-partnered and only comes to the property occasionally to see the children.

   3.    I sold my house in (country omitted) when we moved to Australia and the net proceeds from the sale of approximately $60,000.00, were used to purchase the property, which is registered in our joint names.”

2. The husband went on to depose to his employment as a (occupation omitted).  He further deposed to the fact that he had been unable to pay the mortgage for several months and the bank was threatening to repossess.  He went on to claim that the wife was receiving Centrelink benefits for caring for the children even though they were in his care.  He deposed to the financial difficulties that this situation was giving rise to and sought the sale of the matrimonial home.

3. In his Financial Statement filed 22 January 2018 the husband put the value of the matrimonial home at $554,000 with the mortgage at $321,000.  His superannuation was valued at $55,000.

4. The wife’s responding affidavit was filed together with her Financial Statement on 26 April 2018.  These documents were filed in Court by leave on 26 April 2018.  She has never filed a Response and this deficiency has had some consequences.

5. In her affidavit filed 26 April 2018 the wife deposed that the date of marriage was 1999 and arrival in Australia 2007.  She deposed that she had recommenced paying the mortgage in January 2018 and the house was not in threat of being sold.  She deposed to desiring to retain the matrimonial home as an appropriate shelter for the children, given the proximity to their schooling for the next three years.  She complained that no Child Support and Maintenance was being paid.  She deposed that the children were one hundred per cent in her care.  Relevantly for these purposes at paragraph 12 she deposed:

   “The request to the Family Court for property settlement by Mr Liu is nothing more than an extension of his family violence behaviour, threatening the safety of Ms Kang and the children and threatening damage to the matrimonial home and property.  The Family Court should adjourn this matter until the Childrens parenting and welfare matters are satisfactorily resolved and adequate provision is made for the children’s welfare and safety.  Given Mr Liu’s history of family violence and threats and damage to property and refusal to provide any child maintenance and support, why would the Family Court want to aid him in Mr Liu’s abuse of his former spouse and children.”

6. The wife’s Financial Statement valued the property at $440,000 and the mortgage at $165,850.  She did not disclose any superannuation.

7. On 26 April 2018 I listed the matter for a Conciliation Conference on 18 June 2018 at 2.15 pm and as is the practice in Dandenong, made the matter returnable before the Court on the same day so that orders to progress the matter could be made were the matter not to settle.  I also made orders by consent in terms of handwritten minutes prepared by the solicitors for the applicant.  Inter alia, this provided “that the wife file and serve her Response to the Initiating Application within seven days”.

8. The wife did not file a Response within seven days or at all. 

9. On 18 June 2018 the matter did not proceed before the Registrar.  The handwritten notes of the Registrar read, “Wife refuses to participate in Conference without her current partner, which is wholly unacceptable.  There is an interpreter”.

10. When the matter returned before Court the disagreement between the parties was so palpable I set the matter down for an accelerated hearing on 25 July 2018.

11. The husband filed an amended Initiating Application which relevantly sought orders to enable the matrimonial home to be sold.  He filed an amended Financial Statement which valued the property essentially as previously, but noted the mortgage was now $164,500.

12. The husband’s trial affidavit filed 9 July 2018, in large part is a recitation of the matters in the first affidavit.  He adds that at the commencement of the relationship he was employed full time as a (occupation omitted) and the wife was employed on a casual basis (employment omitted) until the first child was born.

13. He went on to depose in paragraph 4:

    “We separated in early 2017, however, I initially cared for the children in the former matrimonial home at Property A (“the property”) as Ms Kang had re-partnered and only came to the property occasionally to see the children.  In October 2017, Ms Kang and the children returned to (country omitted) for one month.  Ms Kang told me that her partner Mr J had paid for the air fares.  On her return, I tried to talk to Ms Kang about selling the house which caused enormous problems.  Ms Kang would yell and swear in front of the children, which I felt was not appropriate.  Ms Kang was spending more time at the house, so by May 2018 I left our home because of the constant verbal abuse.  There have been no Intervention Orders throughout the marriage.”

14. The husband went on to depose to his endeavours to communicate and spend time with the children, and noted that he is still concerned that the bank may repossess the property.

15. He repeated his claim that the wife was claiming Centrelink benefits even though the children were in his care, and deposed that he continues to pay school fees.  He pays the children $50 per week directly into their bank accounts.  He said he had not been assessed to pay Child Support as until May 2018 the children were in his care.  He asserted that the mother plays (hobby) every day at the (hobby) Club.

16. He further deposed to an offer to settle and reiterated his desire that the property be sold.

Deficiencies in the materials

1. No one has deposed as to the dates of birth of the parties.  From the amended Initiating Application and the husband’s Case Outline, it would seem the father was born on 1973 and the wife was born on 1971.

2. It is asserted in the Case Outline (although not in the affidavit) that the husband purchased a property in (country omitted) in 1996 following which the parties married on 1999.  The dates of births of the children in 2001 and 2003 appear to be uncontroversial, although the Court has been told nothing of any meaningful moment as to their health, wellbeing and development.  Neither party has put on any material whatever about the purchase or sale of the property in (country omitted), although the husband’s Case Outline (but not his affidavit) dates the sale of the property as 2010 and generation of the $60,000 amount therefrom.

3. It is instantly apparent that the assertion in the Case Outline as to sale in 2010 contradicts the husband’s affidavit which relevantly says, “I sold my house in (country omitted) when we moved to Australia”.  Whether they moved in 2007 (wife’s version) or 2007 (husband’s version), the property was not sold contemporaneously with the move to Australia.

4. Beyond the fact that there is a mortgage the Court has been told nothing as to the contribution to the purchase price of the former matrimonial home, and the only date asserted as to the purchase is 2014 (without any further detail) in the husband’s Case Outline.  One might reasonably have expected to see some sort of bank records or other records as to the purchasing of the property.

5. There is no valuation of the matrimonial home which the husband values in his Case Outline as $545,000 and the wife values at $440,000 in her Financial Statement.  The mortgage is asserted by the husband to be some $318,000 and the wife’s assertion is that it is $320,000.  I note that in her Financial Statement the wife asserts that her share of the matrimonial home is 80 per cent, but there is nothing in her affidavit material to explain this assertion.

6. Clearly, the Court is beset with problems of proof.

The proceedings at Court – the opening by counsel for the husband

1. Counsel indicated that the husband has relied on his Case Outline.  He referred to the vehicles owned by both parties (it should be noted there are no valuations for any of these vehicles), the mortgage and the husband’s superannuation of $55,000.  He noted that the wife had not filed a Response and had filed only the Affidavit and Financial Statement on 26 April 2018.

2. Having referred to the dates of birth of the parties, and the marriage, counsel asserted that they lived in the husband’s house which had been bought in 1996.  They have not dealt with the childrens’ birth and the move to Australia.  Counsel asserted that the property in (country omitted) was then sold, generating a $60,000 net payment.  This was used to buy the home in Property A.  The husband had worked in (country omitted) and Australia as a (occupation omitted) and the wife had worked in (employment omitted) in (country omitted).  She ceased work after the first child was born.  Counsel submitted the wife can work in (employment omitted).

3. The husband seeks that the home be sold and the proceeds divided equally.  The husband lives where he works.  He works for a friend.  He intends to rent and the children will be welcome to stay.  He has a good relationship with them and sees them often.  Separation was early 2017 when the wife moved in with her partner.  The husband was in the matrimonial home with the children.  In 2017 the wife had taken the children to (country omitted) for about one month, and on return she moved back in and the parties were separated under one roof.  In March 2018 the husband moved out.

4. This opening, it will be noted, differs materially as to the time the husband remained in the matrimonial home and presents the return of the wife as being earlier than the husband’s affidavit suggested.

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

6. Cross-examination by the self-represented wife presented significant problems.  Both of the parties had interpretation available to them, but the interpreter for the wife, who sought the Court’s permission to clarify what the wife was saying to her in (language omitted), appeared to find it very difficult to construe questions out of what the wife was saying to her in a mix of English and (language omitted).  The transcript will perhaps not fully identify the almost chaotic nature of the proceeding.  At one point, one of the interpreters purported to give evidence from the back of the Court where she was sitting with the husband.  The trial was extremely difficult to control.

7. The questions asked of the husband effectively revealed that the husband asserted the wife had mental health problems.  He called her every night.  He sees the children weekly.

8. It was put to him that he was aware the children were bullied, he said his children had problems, but he visited the school.  They were sometimes sick.  He said he supported the children by paying school fees, and he pays school fees every week in the amount of $200.  The wife put it to him that he had not paid the mortgage or utilities but he appeared to suggest that he did.  The matter was further complicated by the husband electing on various occasions to speak in English which was helpful to an extent, but made more complex by his lack of command of the language.  His answers were simply not easy to follow.  He then said he pays $100 a week towards the household.

9. When the wife put to him who was looking after the children after separation, he said it was the mother.

The submissions and evidence of the wife

1. The wife, who was under visible strain throughout the trial, said she was not feeling well.  She said she required medical assistance.  She said that all the husband’s affidavits were false and therefore she could not reply to them.  She said the husband had asserted she had moved into his property in (country omitted), but he had no property.  She then said that the property in (country omitted) that was sold was in his name.  The dates of arrival in Australia were wrong.  The marriage date was wrong.  She said there was evidence that her contribution in (country omitted) was more than that of the husband.  This was before the birth of her first child.

2. She looks after the mortgage, the children and all financial matters.  Her Motor Vehicle P has a loan of $12,000 remaining.  She said that before the property is sold she wants children’s custody and Child Support matters to be dealt with.  She had been to the Child Support Agency who ordered that the husband pay $15,000, but he has not paid any money yet.  She asked how the husband would afford rent on his income.  She said she looks after the finance for the children.  She said for the last 18 years she has contributed significantly.

3. The wife, notwithstanding her assertions of ill health, was able, with persuasion from the Court, to give evidence.  She adopted her Affidavit and Financial Statement as true and correct.

1. Under cross-examination the wife confirmed that the date of marriage was 1999, not 1999.  This evidence was given with conviction and I accept it.  The parties had not lived together before marriage.  They moved into a monthly rental property, but neither of them owned it.  She conceded there was a big rental deposit.  This is the normal practice in (country omitted).  The deposit was (currency omitted).  She said this was not a large sum, but the husband paid it.  The rental property was in her name and they sublet it.  The wife said, “During the tenancy, we came to own the property.  It was leased under my name and bought under my name.  It was sold in 2011”.

2. She was adamant that the sale was 2011, not 2010.  She said it was sold for $120,000, but they had to pay the tenant back A$60,000.  When it was put to her that $60,000 was contributed to the Property A property, she said some moneys were used to obtain citizenship but the rest was applied to purchase.  The husband works as a (occupation omitted) and she pays the mortgage.  This started in January 2018.

3. The wife conceded that the husband ceased employment at (employer omitted) in June 2017.  She was not sure if he started work in July with a friend.  They lived together till March 2018.  She was a victim of family violence.  She did not move in with her boyfriend.  She took her holiday to (country omitted) for which she paid all expenses.  She was in the house before this and was looking after the children.  She denied that the husband paid all utility bills and said she had to pay for her children.

4. When challenged as to the date of separation, the wife said this was on 9 January 2017.  She stayed in the house and looked after the children.  She said she has no partner, but her friend supports her (this was clearly a reference to the gentleman who was in Court with the wife and who has attended Court with her on previous occasions).

5. The wife said she had borrowed from many friends.  The husband moved out of the house in March 2018.  She has paid utilities after the husband ceased work in June 2017.  They were living together, but had no communication.  She obtained Newstart payments this year and receives $600 per fortnight which she uses to pay the mortgage.  She also receives family payments of $172.

6. The wife conceded that she could not get a loan to pay the husband out of the house.  She said she needs to drop the children off.  She said she has seen a psychologist and cannot work.  Before the husband moved out in March he used to drop the children off the school because it was on his way to work.

7. The wife went to the Child Support Agency in November 2017.  The husband only phones the children twice a month.  He provides cash to supply the children, but does not supply food.

8. The wife said that the police had attended the house on 28 January 2017.  She said the husband took her bag away and punched the wall.  He tried to hit her.  She then said (and this is hard to really understand in the circumstances) that the husband ran away with her children, but the police then told her it was a private matter and that they would not intervene.  After the police left, he returned.  She remained in the house.  She tried to contact the husband about Child Support, but was blocked.

9. When it was put to her that they were still living in the same house, she said there was no communication.  He would come home around midnight.

10. The wife said that she receives money from many friends.  She is not sure how many friends.  Some is from the man in Court, whose name is Mr J.  When I asked the wife the names of the other persons who had given her money she said Mr M, Mr A and some other person whose name I did not catch.  She says she plays (hobby) twice a week, when the boys are at school, at the (hobby) Club.  The wife’s answers on all these matters were vague and unbelievable.

11. The wife says she plays (hobby) during weekdays, but only for two days.  She said she had put the Child Support Assessment on the table, but the husband ignored it.  The husband only supported one child after separation and ignored the eldest one.  He takes the children fishing twice a month.

12. The wife said she did not know if she was in a relationship with Mr J.  She would like to receive Spousal Maintenance.  She professed not to know that Mr J had his own house.  She said it was not relevant if she stayed with Mr J.  She repeated that she wants Spousal Maintenance.  She asserted that she earned more money than the husband.  She said that the husband wants to sell the house to pay his credit card bills.  She tendered as exhibit R1, correspondence from the Child Support Agency.

13. This documentation shows a letter to the wife dated 20 September 2017 from the Child Support Agency.  I note that it was based on a taxable income in 2017 for the husband of $77,089, that it was asserted that the children were one hundred per cent in the care of the wife.  It also asserts a debt, as at 19 July 2018, in Child Support of $8,898.88.

The husband recalled

1. Given that much of what was asserted by the wife had not been put to the husband, I permitted him to be recalled.  He said he had never been contacted by the Child Support Agency.  He pays school fees by direct debit and pays weekly.  He pays electricity and gas by direct debit.  The mortgage was by direct debit, but he stopped when he left (employer omitted) as he wanted to sell the house.  The wife’s car is in his name and he pays the loan which is about $12,000.  It is a separate loan.  He stopped paying when he left (employer omitted). 

2. The husband said he phones the children regularly.  He gives the eldest son a $100 allowance weekly by bank transfer.  He is asking the youngest son for bank details.  After the house is sold if the children wish to live with him, he will rent near their school.  He has had no discussion with the wife about the children.  It is up to the children.

The wife’s final submission

1. The wife said that what she had wanted was to provide a good environment for her children.  She was wondering about selling the house.  How can the husband afford it?  He cannot purchase the house.  She is not sure why he is trying to separate the two children.  She said she paid all the utilities with borrowed money.  She wants to keep the house until the children are independent.  It is a joint title and she wishes to pass the house to the children.

2. Counsel for the husband was content to rely upon his Case Outline.

Findings about the Facts and the Credit of the Parties

1. Matters of demeanour are always attended by some measure of difficulty and when the parties are giving their evidence substantially through interpreters this difficulty is compounded significantly.  The husband struck me as being generally fairly direct in his answers, although he was unable to conceal a measure of anger with the wife.

2. The wife, who I note was under considerable strain, was nonetheless able to articulate clearly in her submissions.  Although she said she was ill she gave no specifics.  I have to say that, while I had some difficulty understanding some of the answers the husband gave, much of what the wife had to say was either vague or unbelievable, or internally inconsistent.

3. Doing the best I can, the following narrative seems to me more probable than otherwise. 

4. The parties met and married without prior cohabitation in 1999.  Thereafter, and contrary to the husband’s assertions, they rented a property.  In (country omitted) such rentals appear to involve deposits more akin to a purchase price.  In some fashion, not really explained by the parties, their interest in the property was ultimately realised and some $60,000 was applied towards the purchase of the matrimonial home.  The wife’s evidence about the property in (country omitted) was more convincing than that of the husband and I accept it.

5. Where I have great difficulty however with the wife’s evidence is in her numerous assertions that she earned more than the husband.  The husband was always in employment as a (occupation omitted).  There is no detail in the wife’s materials as to her earnings in (country omitted).  She has not worked since the birth of her first child.  She has not asserted, either in her affidavits or in what she said to the Court, that she has actually worked in Australia.  It seems clear to me that following the birth of the children she was a stay-at-home mother.

6. The matrimonial home was bought at a date wholly unrevealed in any meaningful way with the $60,000 from (country omitted) and the husband must have paid the mortgage until at least he left his job in (employer omitted) in mid-2017.  It seems clear that he has at all times thereafter sought to sell the property and for this reason has not, as I find, attended to the mortgage.

7. Separation took place in 2017.  It is not possible to say when in 2017 this occurred.  The incident on 28 January 2017 makes no sense at all.  How the husband ran away with the two children, who it should be noted are not in young infancy, and then managed to come back once the police had left is wholly unclear.

8. The wife has asserted family violence in generalised terms but has not offered any descriptor other than of that particular incident.  I suspect it is more likely than otherwise that some significant altercation did indeed take place.  The husband’s demeanour suggested that he was well capable of becoming angry.  Beyond this particular incident, however, it is not possible to make any findings as to the wife’s assertions as to family violence.

9. I do not accept the wife’s assertions that she has not re-partnered with Mr J.  She refused to even go into the Conference with the Registrar without him.  He has sought, albeit not at the trial, to represent the wife in proceedings before the Court.  The wife is plainly in a relationship with him despite her denials. 

10. Quite how all this operated on the interrelationship between the husband and the wife is unclear.  Plainly, the husband on any version of the events was living in the matrimonial home until at least March 2018.  He did not pay the mortgage after mid-2017 but I think he probably has continued to contribute at the very least to school fees and living expenses of the children in an informal way. 

11. The wife was adamant that she has paid the utilities but it is impossible to see where she would have had the money to do so, likewise the mortgage.  This can only have been with moneys advanced by third parties.  The evidence about the friends who play (hobby) was utterly unconvincing.  I find that she is materially supported both as to payments of the mortgage and otherwise by Mr J.

12. The children live with both parents (the husband’s assertion that they were in his care after the wife moved out is plainly wrong) until the husband finally moved out in either March or May 2018.  On any view of the matter they are continuing to reside with the wife in the matrimonial home.  Despite the husband’s denials, it seems plain that he sees but little of the children and his proposals for the children to live with him were made in a surprisingly neutral way if he really wished to have them live with him.  It is clear the wife will have ongoing responsibility for the children’s wellbeing.

Stanford v Stanford

1. This is a case in which, despite their differing views, both parties accept that it is just and equitable there be an adjustment of their property interests.  It is clear that there should be one. 

The Pool

1. The pool consists of the matrimonial home in which the value is wholly unascertained.  The property will have to be sold, if only to work out its value.

2. Other than the matrimonial home, the parties both have cars.  It appears that that of the wife is encumbered by a $12,000 loan.  There is no valuation of the car, nor that of the husband.  I do not propose to allot any value to the vehicles in these circumstances.  I will order that the wife take over payment for the Motor Vehicle P in her possession.  She can pay the loan out of her share of the proceeds of the matrimonial home.

3. The only other asset of any note is the husband’s superannuation of some $55,000.  Nothing has been said as to whether there ought or not be a superannuation split but, in circumstances where the parties were together for a total of 18 years and all the superannuation was engendered during that time, in my view the superannuation should be included in the pool and divided in the same proportions as the pool more generally.

Future Needs

1. The husband has employment.  It is said now to be less munificent than his prior employment at (employer omitted).  No explanation has been given for why the husband left his employment at (employer omitted) and I note that the Child Support Agency assessed his income, presumably at (employer omitted), in the sum of $77,000 per annum.  The husband’s current amended Financial Statement gives his income as $676, a sum under half of that assessed by the Child Support Agency.  As I find, the husband can obtain more highly remunerated employment should he elect to do so.

2. The wife, who admits (hobby) at least twice a week, has asserted that she seeks Spousal Maintenance.  She does not work and plainly does not, it would seem, see the need to do so.  Any application for Spousal Maintenance (and none has formally been filed with the Court) would face very significant difficulties.  I accept that the wife is likely to be able to obtain employment should she seek to do so, but it seems improbable that she will.  It seems clear beyond any doubt that she is significantly assisted by her new partner and possibly by other third parties.  The wife has not asserted any loan agreements of any kind of formality and it is to be presupposed that she will be able to support herself from a combination of benefits (which might well arguably not be properly payable to her given her new relationship and the partner that she has), and support from third parties, together with Child Support.

3. The wife has made glancing reference to ill health on her part and, indeed, the husband has asserted in broad terms that she may have mental health issues.  I note that even with an interpreter the wife found it almost impossible to formulate questions.  The transcript will almost certainly not record the lengthy discussions between the wife and interpreter in which the interpreter was endeavouring to distrain a question out of the torrent of words that the wife was saying.  I am not a doctor but, as a matter of impression, the wife presented as somebody who might have mental health difficulties of some sort.

4. Beyond this neither party has asserted any health difficulties.

5. The wife has the care and expense of the two children who are now 16 and 15 and is likely to do so for some time to come. 

6. Doing the best one can in this very difficult evidentiary landscape, I would describe the wife’s future needs as requiring an adjustment of 15 per cent.

7. While it is clear that the husband worked throughout the marriage and that the wife ceased work in 2001, in all the circumstances, and once again doing the best I can, I would assess their contributions as equal.

Conclusion

1. I have complained on a number of occasions in this judgment about the difficulty that this case presents.  In the ultimate I think that a division of the parties’ property and superannuation in the proportion of 65 per cent to the wife and 35 per cent to the husband is indeed just and equitable.

Postscript

1. Judgment in this matter was reserved on 25 July 2018.  The above reasons for judgment were prepared in draft form relatively shortly thereafter.  On 7 August 2018 the respondent, Ms Kang filed a Response.  She had made no application during the hearing for leave to file further materials.

2. The Response raises in substance three matters in alleged arrears in Child Support, an application for Spousal Maintenance and an application for parenting orders.

3. It is a fact that Ms Kang had referred in the briefest and glancing way both in her affidavit material and in what she had to say before the Court some brief suggestions that she would seek Parenting Orders and Spousal Maintenance.  I have in fact already commented on the Spousal Maintenance matter above.

4. Nonetheless it is plain, as indeed I pointed out to Ms Kang during the currency of the trial, that the matter I have heard and will by these reasons for judgment determine whereas the property dispute between the parties.

5. Ms Kang’s Response seeks that the matrimonial home not be sold and be retained for her children until they complete education as late as 2021.  This was in fact the wife’s position at trial.

6. The general rule as to submissions on materials following the reservation of judgment is that referred to by the Full Court of the Federal Court in Kimber v Owners Strata Plan 48216 (No. 2) [2018] FCAFC 58 at [12] where the Full Court said:

   “We endorse the conclusion reached by Allsop P (as the Chief Justice of this Court then was), Giles JA and Tobias AJA in Bale v Mills (2011) 81 NSWLR 498; NSWCA 226 at [61] that after judgment is reserved, sending submissions to the Court without leave is wrong, and the Court may (and generally will) ignore what has been sent.”

7. Given Ms Kang’s self-representation, I have on this occasion exercised my discretion to read the materials she has filed.  Her Affidavit in support is in part a complaint about the way the trial was conducted, an irrelevant complaint about the conduct of the Conciliation Conference and in part designed to support the matters sought in the Response.

8. It is clear in my view that the matters that Ms Kang seeks to agitate do not as a matter of first principle operate on the application for property division, save insofar as they raise an application for a stay of outcome until 2021 when the children’s education is complete.

9. I am not prepared to stay the sale of property until 2021.  It is my view eminently appropriate that there be an adjustment in property interests now so that the parties can get on with their lives.

10. In these unsatisfactory circumstances, showing yet again the difficulties caused by self-represented parties and all the more exacerbated in this case by Ms Kang’s lack of understanding of the proper way to go about conducting proceedings, I will cause the Response to be listed before Judge other than myself.  That judge can determine whether it is appropriate for the matter to proceed and in what fashion. 

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date:  6 September 2018