Lupei and Salcedo and Anor

[2019] FCCA 2072

FEDERAL CIRCUIT COURT OF AUSTRALIA

LUPEI & SALCEDO & ANOR [2019] FCCA 2072

Catchwords:
FAMILY LAW – Application for property adjustment orders – significant factual disputes – assessments of evidence – assessment of contributions – justice and equity.  

Legislation:

Family Law Act 1975 (Cth), ss.75, 79

Evidence Act 1995 (Cth), ss.55, 76, 78

Cases cited:

Anderson & Dimitrova-Boyadzhieva [2005] FMCAfam 511

Bevan & Bevan [2014] FamCAFC 19

Chapman & Chapman [2014] FamCAFC 91

Falk & Falk (1977) FLC 90-247

Fenech & Fenech (1976) FLC 90-035

Kennon & Kennon (1997) FLC 92-757

Lane & Lane (No. 1) (1976) FLC 90-055

Pavey & Pavey (1976) FLC 90-051

Pierce & Pierce (1999) FLC 92-844

Russell & Russell (1999) FLC 92-877

Scott & Danton [2014] FamCAFC 203

Stanford & Stanford [2012] HCA 52

Stangl & Peng [2012] FMCAfam 615

Teal & Teal [2010] FamCAFC 120

Todd & Todd (No. 2) (1976) FLC 90-008

Applicant: MR LUPEI

First Respondent: MS SALCEDO

Second Respondent: MR B LUPEI

File Number: PAC 5805 of 2017

Judgment of: Judge Obradovic

Hearing date: 5 March 2019

Date of Last Submission: 5 March 2019

Delivered at: Parramatta

Delivered on: 22 August 2019

REPRESENTATION

Counsel for the Applicant: Ms Cantral

Solicitors for the Applicant: Shera Tiongan

Counsel for the First Respondent: Mr Harper

Solicitors for the First Respondent:	O'Sullivan Legal
Appearing for Second Respondent:	No appearance

ORDERS

1. Pursuant to section 106B of the Family Law Act 1975 (Cth), the transfer of the property situated at and known as Property A in the state of New South Wales being the property comprised in Folio Identifier … (“Property A”) to the Second Respondent, Mr B Lupei, be set aside.

2. The Wife be declared the sole legal beneficial owner of the property situated at and known as Property A in the state of New South Wales being the property comprised in Folio Identifier ….

3. Within one (1) calendar month from the date of these Orders, the Wife shall:

   (a)Transfer to the Husband the property situated at and known as Property B in the state of New South Wales being the property comprised in Folio Identifier …;

   (b)Pay to the Husband the sum of $1,919; and

   (c)Pay to the Husband the sum of $472.50 in repayment of her half share of the cost of the Court ordered joint valuations for Property A and Property B.

4. In the event that the Wife fails to comply with Order 3(b) above, then the Wife shall pay to the Husband in addition to the said sum of $1,919 interest thereon calculated at the rate prescribed from time to time by the Family Law Rules 2004 from the due date of the payment until the date of receipt of such monies by the Husband.

5. As between the Husband and Wife, and subject to the above Orders, the Wife shall retain all interest in and entitlement to:

   (a)The 2010 Vehicle C motor vehicle, registration number … .

   (b)All personal property and financial resources now in her respective possession or control.

(c)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in her sole name respectively.

(d)All interests in life insurance policies and superannuation funds standing in her sole name respectively.

1. As between the Husband and Wife, and subject to the above Orders, the Husband shall retain all interest in and entitlement to:

   (a)His 2010 Vehicle E motor vehicle, registration number … .

   (b)All personal property and financial resources now in his respective possession or control.

   (c)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his sole name respectively.

   (d)All interests in life insurance policies and superannuation funds standing in his sole name respectively.

2. Subject to the above Orders, the Husband and Wife shall be and remain liable for any debts in his or her sole name at the date of these Orders and in this respect shall indemnify and hold harmless the other from all and any liability in relation thereto.

3. In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to this Order, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act 1975 to execute such deed, document or instrument in the name of the said party.

4. Remove all outstanding issues from the list of cases awaiting finalisation.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5805 of 2017

MR LUPEI

Applicant

And

MS SALCEDO

First Respondent

And

MR B LUPEI
Second Respondent

REASONS FOR JUDGMENT

Introduction

1. These are Reasons for Judgment with respect to property adjustment orders pursuant to section 79 of the Family Law Act 1975 (“the Act”).

2. The applicant and the first respondent are the husband and wife respectively. The second respondent is the parties’ adult son. He has not participated in the proceedings.

3. There is significant dispute between the husband and wife in respect of most of the relevant matters, including the date of cohabitation, date of separation and most, if not all, of the contributions asserted by each of the parties. While there is a thread of commonality in the parties’ evidence, it is but a thread.

4. On the applicant’s case there is 20 years of cohabitation. There is significant mutual support and co-parenting of the parties’ only child. There are significant contributions of both a financial and non-financial nature by each of them throughout the relationship.

5. On the respondent’s case there is only eight years of cohabitation, marred by a living arrangement where the parties for the first part of their cohabitation only lived together for the minor part of the week. There is significant family violence perpetrated by the applicant on the respondent. There are significant, if not sole, financial contributions by the respondent. There are significant, if not sole, non-financial contributions by the respondent. 

6. An important matter in the proceedings is the wife’s unilateral transfer of the home where the parties lived for 12 years to the parties’ son shortly before the commencement of these proceedings.

7. In a nutshell therefore, the issues for determination are:

   a)The date of separation;

   b)Whether the transfer of property to the second respondent should be set aside; and

   c)The assessment of the parties’ contributions during the relationship.

The Relevant Legal Principles

1. The overall approach to the determination of an application for property adjustment orders pursuant to s.79 Family Law Act1975 (Cth) was set out by the High Court in Stanford v Stanford,[1]where their Honours stated:

   [1] [2012] HCA 52; (2012) 247 CLR 108

   [37] … first, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property… the question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.

   …

   [40]… whether making a property settlement order is ‘just and equitable’ is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”. To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.

   [41] Adherence to these fundamental propositions in exercising the power in s 79 gives due recognition to “the need to preserve and protect the institution of marriage” identified in s 43(1)(a) as a principle to be applied by courts in exercising jurisdiction under the Act…

   [42] In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order…

2. Such approach was subsequently considered by the Full Court of the Family Court in Bevan & Bevan[2], Chapman & Chapman[3] and Scott & Danton[4].

   [2] [2014] FamCAFC 19

   [3] [2014] FamCAFC 91

   [4] [2014] FamCAFC 203

3. In many matters which come before this Court, the requirement of whether it is just and equitable to make any orders is readily satisfied by the fact of the parties’ separation; as there is not and will not thereafter be the joint use of property by the parties. It is so in these proceedings.

4. Once the issue of whether it is just and equitable to make any order is resolved, the Court is to then consider the contributions made by the parties as defined in s.79(4)(a) to (c), the matters set out in s.79(4)(d) to (g) and in particular the subjective considerations as to the parties by having regard to the provisions of s.75(2) in so far as they are relevant.

5. The Court is then to consider the justice and equity of the actual orders to be made, in the context of the Court’s obligations to make appropriate orders as provided for in s.79(1) of the Act.[5]

   [5] see generally Russell & Russell (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120

6. The just and equitable requirement is “one permeating the entire process”[6].

   [6] Bevan supra at [86]

Findings

1. The wife was born on … 1957 and the husband was born on … 1968. Both of them were born in Country F.

2. The wife moved to Australia in 1987. The following year, she received her certification as a Health Professionals in New South Wales. 

3. In 1991 the wife purchased a unit at Suburb G (“the Suburb G property”) for $76,000 using her savings and a loan of $60,000. The property was tenanted and the rent was utilised to pay down the mortgage. Any shortfalls between the rental income and the loan repayments were met by the wife from her wages. The husband’s understanding is that the loan associated with the Suburb G property was repaid by the time the parties commenced cohabitation.

4. The parties met in 1993 while working at Employer H. The wife was employed as a Health Professional and the husband as an assistant Health Professional.

5. In or about October 1994, the husband returned to Country F for a period of some six weeks during which he took the professional association exam. Whilst there, the husband married the mother of his child X, who was born … 1991. It was a marriage of short duration which was ultimately annulled. The husband returned to Australia in about November or December 1994. It appears that the parties agree, although not explicitly so, that by this stage in late 1994 they were romantically involved.

6. The wife asserts in her affidavit that she was unaware of the husband’s marriage until 1996 when he told her. This is a factual matter upon which nothing turns, except maybe the wife’s hurt feelings.

7. The parties agree that early on in their relationship the wife helped the husband purchase a motor vehicle. The husband was making some repayments to the wife for the money she gave him to purchase the car, but such repayments stopped after a few months. The husband says this was because the wife no longer asked him to make the repayments, the wife says it was because he refused to do so. It is not clear on the evidence when this vehicle was bought, but it appears to be more likely than not that it was purchased sometime in or about 1995. In her evidence, the wife asserts that the husband still owes her approximately $18,000 in respect of this “loan”[7].

   [7] See paragraph 68 as to relevant assessment of contributions regarding the purchase of this motor vehicle

8. The husband asserts that the parties commenced cohabitation in January 1997 living in rental accommodation in Suburb J, New South Wales. The wife disputes the date of cohabitation. She says that they did not start living together until after they were married. It was an important matter for the wife that the Court accepted this, not only because of what appeared to be some strict moral beliefs but also because of when property was acquired[8].

   [8] It was clear after hearing the wife’s evidence that her personal beliefs as to moral entitlements to property were not in line with legal authority

9. The parties were married in a civil ceremony on … 1997. It is after this date that the wife asserts the parties started living together. Ultimately, nothing of relevance turns on whether the parties commenced living together in January or February 1997.

10. On both parties’ evidence, early in the parties’ relationship the wife was earning about double relative to the husband, although they do not agree on what their respective wages were.

11. In early 1997, the wife purchased a vacant block of land at Property B for $85,356 (“Property B”). The wife says that this land was purchased solely by her using her savings and a mortgage of $50,000 with the husband making no contribution to this property. The husband asserts that the deposit was paid using joint savings and that whilst the property was registered in the wife’s name only, it was purchased by both of them.

12. At the time of the parties’ marriage, the husband did not own any property apart from a (omitted) motor vehicle, the value of which is not the subject of any evidence. When this vehicle was purchased it had a value of approximately $19,000. The wife was responsible for payment of the purchase price.

13. The documents annexed to the wife’s affidavit are unclear as to when the mortgage with respect to Property B was registered. The mortgage appears to have been certified on 26 January 1997[9]. The loan of $50,000 was settled on 7 February 1997. It appears from the annexures to the wife’s affidavit that she had some $36,204 in a bank account in her name as at 5 February 1997. The loan used to purchase Property B was repaid in full by 11 April 2002.[10]

    [9] The copy annexed to the affidavit is very faint

    [10] Page 42 of Wife’s Affidavit

14. At the time of the parties’ marriage, the wife owned the Suburb G property, Property B, a (omitted) motor vehicle, and superannuation. The value of the wife’s motor vehicle is not the subject of any admissible evidence, nor is the value of her superannuation at the time. There is no historical valuation of the Suburb G property as at the date of the parties’ marriage.[11]  The wife’s evidence is that she purchased her motor vehicle in 1992 for $30,000 which she had in savings, and that as at the date of the parties’ marriage she had $45,000 in superannuation with AMP and $35,000 in superannuation with Superannuation fund K.

    [11] The wife does make some assertions in her affidavit as to her opinions of what certain assets were worth. Those opinions are inadmissible as they fall foul of ss 55, 76 and 78 Evidence Act 1995 (Cth).

15. There is a significant dispute between the parties as to where they resided between 1997 and 2005. The wife says she stayed at the Suburb J unit on weekends but that she essentially lived with her family (presumably at Suburb L) for most of the week.

16. What is interesting about the loan statements annexed to the wife’s affidavit is the address to where the statements were sent. It is clear that for the majority of the period, albeit some statements are missing, the wife’s mailing address was Suburb L, and not where the parties are said by the husband to have resided at Suburb J. Although for a period of time, the statements were sent to the Suburb J address.

17. Neither party was cross-examined about the detail of their living arrangements between 1997 and 2005. The addresses on the bank statements could potentially be corroborative of both parties’ cases: on the one hand they corroborate the husband’s case that the wife was secretive about her financial affairs and did not share such matters with the husband, and on the other hand they corroborate the wife’s case that she really didn’t live with the husband but only spent some time at the address where he lived. However, the wife’s case is that notwithstanding that she spent a great deal of her time staying with her family, she and the husband were nonetheless cohabiting between February 1997 and December 2005. It is common ground that the parties did not hold any joint bank accounts nor did they have access to each other’s bank accounts. There was no formal intermingling of finances.

18. In 1998 the husband commenced full time study in a Health Professional degree and continued to work on a casual basis.

19. The parties’ only child Mr B Lupei was born on … 1998 and is currently 21 years of age. The wife’s evidence is that her brother was much more of a father to the parties’ child than the husband ever was. She is adamant that the husband only took on parenting responsibilities when it suited him, and that overall this was minimal. The husband says that he was an involved father and that he participated in the daily parenting to a significant degree[12].

    [12] See paragraph 73

20. The wife took one year maternity leave to care for the parties’ child returning to casual employment in mid-1999.

21. Shortly after the wife’s return to casual employment in 1999 she was seriously assaulted by a dementia patient receiving injuries to her spine, neck, back, arms and legs. She has not been able to return to work since this time. The wife made a claim for personal injury in 1999.

22. The wife began receiving income protection payments of $920 per week in 2001. She continues to be in receipt of such payments and will continue to receive them whilst she is living.

23. The husband graduated in 2001 and commenced employment as a Health Professional at Employer M. The husband provides a summary of the parties’ respective annual incomes from 2005 to 2017. It is apparent from that summary that the husband’s income was more than the wife’s, at times double.

24. On … 2002 the wife sold the Suburb G property for $112,000 with net proceeds of the sale being $103,479. The wife paid Capital Gains Tax of $14,535 from the net proceeds. As such there was a sum of approximately $89,000 from the sale after the payment of all costs of sale and associated tax.

25. In 2004 the husband was diagnosed with a genetic disorder of the eye causing degenerative and progressive loss of vision.

26. In 2005 the wife’s personal injury claim was resolved. She received a part-payment of $432,866 in June 2015 and final payment of $155,512 in November 2006. The net compensation payout the wife received as a result of her claim arising out of the workplace assault was $588,378.

1. In late May Property A was purchased in the wife’s sole name for $612,000 (“Property A”). The parties moved into this property in December 2005. This being the time the wife asserts that the parties separated on a final basis under the same roof. The wife asserts that she solely paid for all improvements and renovations to the home.

2. Property A was purchased using the net proceeds of the Suburb G property as well as the wife’s partial compensation payout. There was a further contribution of some $113,000 which the wife asserts came from her savings. There is no independent evidence about this. Whatever savings were accumulated, they were accumulated during the parties’ cohabitation. Both parties put before the Court corroborating evidence of contributions to the property, including receipts for various purchases used to improve and maintain the property.

3. In 2006/2007 the husband suffered some health complications which resulted in him requiring kidney surgery. The husband has two half kidneys as a result.

4. In 2010 the parties purchased a Vehicle C motor vehicle. There is dispute about where the purchase funds came from, with the husband asserting from his savings and the wife asserting from her savings. The vehicle was purchased during the parties’ marriage.

5. The parties’ son Mr B Lupei was diagnosed with depression in 2016. The wife asserts that she was primarily responsible for taking the child to various medical practitioners and that the husband did not assist except to a limited extent. 

6. The husband asserts that the parties separated on a final basis in June 2017.

7. Between August and October 2017 the husband’s legal representatives contacted the wife to discuss an amicable property settlement on numerous occasions without any response from the wife.

8. On 16 October 2017 the wife transferred Property A to the parties’ son Mr B Lupei without the knowledge of the husband, although the wife asserts that the husband knew that she had an intention of doing so. The wife paid for the transfer and stamp duty with Mr B Lupei paying $1 consideration for the property.

9. On 11 November 2017 the husband’s legal representatives conducted a title search of Property A and discovered the transfer to the parties’ son.

10. On 21 November 2017 the husband filed an urgent Initiating Application which was listed ex parte on 29 November 2017.

11. On 29 November 2017 the Court made orders adding Mr B Lupei as a respondent to the proceedings and injuncting both the wife and Mr B Lupei from dealing with Property B and Property A.

12. On 18 September 2018 Property A was valued at $1,150,000.

13. On 10 October 2018 Property B was valued at $535,000.

Date of Separation

1. Even though the wife’s case is that the parties separated on a final basis at or around the time of the purchase of Property A, they lived together at that home for the next 12 years. The wife asserts that she was fearful of the husband and that is why she did not insist that he leave the property over all those years. The husband says that the wife had told him many times to leave, but that this was simply part of their relationship, namely, that they would argue and she would say such things, but that afterwards they remained living together as husband and wife.

2. The Court does not accept the wife’s evidence that the parties separated in December 2005.

3. Separation under the one roof is a concept which has been the subject of many a judicial pronouncement. The law is well established. The Court adopts the useful summary in an earlier decision of this Court[13]:

   [13] Stangl & Peng [2012] FMCAfam 615

   [25] … The parties to a marriage may regard themselves as being married even though they are living apart for a period of time… 

   [26] The authorities make it clear that there are three elements which constitute the finding that separation has occurred.  These elements are:

   a) An intention to separate.

   b) Action upon that determination.

   c) Communication of that intention to the other party.

   [27] In Todd & Todd (No. 2)^[14] Watson J said:

   Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention or, alternatively, act as if the marital relationship has been severed.

   [28] The Full Court of the Family Court of Australia has made it clear that there is also a need to communicate the intention to separate to the other party.  That communication can be spoken or unspoken (see Falk & Falk[15]).  Where it is claimed that parties have separated while still living under one roof, there is often difficulty in establishing when the separation commenced or even that it has occurred at all.  It is usually not sufficient to provide a list of household tasks done or not done by either of the parties.

   [29] In Pavey & Pavey[16], the Full Court of the Family Court held that:

   It is not possible to apply some mathematical formula to these activities and determine whether a separation has occurred.  Rather, the evidence should examine and contrast the state of the marital relationship before and after the alleged separation.

   [14] (1976) FLC 90-008; 9 ALR 410

   [15] (1977) FLC 90-247

   [16] (1976) FLC 90-051; 10 ALR 259

   [30] The law is unclear about the extent to which the breakdown of the marital relationship must be communicated to other people.  In the case of Fenech & Fenech[17], the parties lived in a strained relationship under the same roof but the separation was not apparent to outsiders.  This was held not to be sufficient.  It is usually the case that some corroboration is required, but it is not mandatory whether parties to a marriage assert that their marriage has broken down, but they continue to live under the same roof.

   [17] (1976) FLC 90-035

   …

   [32] In … Lane and Lane (No. 1)[18]… her Honour Murray J dismissed the application and said:

   I am of the opinion however, that a different consideration applies when in fact both parties continue to reside in the same residence. Where the latter situation exists, and one party intends to bring the marriage to an end, that party must carry out that intention overtly, unequivocally and specifically.  If it were otherwise, this sole ground for dissolution, one year’s separation, evidencing irretrievable breakdown of the marriage, could be grossly abused by one spouse “who wants the cake and eat it too”, viz.  enjoying certain aspects of marital cohabitation, rejecting others as it suits and then divorcing the other spouse when expedient.[19]

   [18] (1976) FLC 90-055

   [19] (1976) FLC 90-055 at 75,225-75,226

4. It has been held[20] that:

   [9] For very good reason it is the practice of the court in cases where separation under the one roof is alleged to require some corroborative evidence.  In my mind this is not a case where I should dispense with the need for corroboration.  In relation to corroboration, I refer to the decision of Pavey & Pavey (1976) FLC 90-051 in which the Full Court of the Family Court observed -

   without a full explanation of the circumstances, there is an inherent unlikelihood that the marriage has broken down for the common residence suggests continuing cohabitation.

   [10] The Full Court then went on to indicate that because of this inherent unlikelihood of a marital breakdown the applicant for dissolution should always be ready to corroborate his or her assertion of separation.  At page 75,214 the Full Court said:

   The party or parties alleging separation must satisfy the court about this by explaining why the parties continued to live under the one roof and by showing that there has been a change of their relationship, gradual or sudden, constituting a separation.  For this reason many judges of the Family Court of Australia have adopted the practice of requiring corroboration of the applicant's evidence in cases where the parties reside in the same residence.  We do not wish to lay down an inflexible rule that evidence from a witness other than the parties to a marriage must be given, but an applicant should always be ready to call such evidence.  Whether the judge will require such evidence will depend on the circumstances of each case. 

   [20] Anderson & Dimitrova-Boyadzhieva [2005] FMCAfam 511

5. There is no corroborating evidence of separation in the wife’s case. Indeed, there is no evidence of a relationship which is any different pre and post December 2005. In essence, the wife says the parties always had separate finances, that even whilst living in Suburb J she and the parties’ child spent significant amounts of time with her family, that the husband was violent towards her and that she was frightened of him. The situation was no different after the purchase of Property A, except that there is no evidence that thereafter the wife and the parties’ son continued to spend significant amounts of time away from the husband as the wife asserts had been the case while the parties lived in Suburb J. It is common ground that the parties did not usually sleep in the same bed together for the duration of their relationship. There was no particular event the wife was able to point to which occurred in or around December 2005 which was said to be a catalyst for the separation. There was no evidence of the wife acting differently towards the husband after this date, compared to their relationship prior to December 2005.

6. There is also the purchase of the Vehicle D in 2010 referred to earlier in these reasons. It is a vehicle which was registered in the husband’s name but which the wife asserts she paid for.

7. The parties’ individual tax returns name the other as his/her spouse for the duration of the period the husband lived at Property A. The parties had family health insurance for 2013 and 2014. The husband travelled overseas with the parties’ son on holiday. There are photographs of the husband and wife together in 2013 and 2014. The onus is on the wife to establish separation under the one roof. She has not done so.

8. There is evidence that the relationship was different after June 2017, which the husband asserts is the date of separation. After this time the parties no longer lived together.

9. Therefore, the Court finds that the date of separation is June 2017.

Transfer of Property A

1. One of the misconceptions the wife personally holds is her belief that her decision and intention to purchase a house for the parties’ son, which she ultimately transferred to him without the husband’s consent, are actions which are immune from the law and consequently that the property which has been so transferred ought not form part of the pool.

2. It is a fact that the parties’ son has not made any financial contributions towards the purchase of Property A and which was transferred to him for $1. It is a property where the parties lived for the last 12 years of their relationship, a property which was jointly maintained and improved, a property to which each of the parties contributed. It was a significant asset of the parties’ prior to its transfer to the parties’ son. The stamp duty paid by the wife for the transfer was a further significant dissipation of the parties’ assets post separation.

3. Property A is a property which should rightly form part of the pool. As such, it is appropriate for an order to be made setting aside the transaction transferring the property to the parties’ son.

The Pool

1. At the time of final hearing, the property pool consisted of the following assets:

Item	Owner	Value
Property A	Second Respondent	$1,150,000
Property B	Wife	$535,000
Vehicle E	Husband	$18,880
Vehicle C	Wife	$12,600
TOTAL:	$1,716,480

Superannuation:

Fund	Owner	Value
Superannuatin fund N as at 30 September 2018	Husband	$263,620
AMP	Wife	$102,025
Superannuation fund K	Wife	$91,253
TOTAL:	$456,898

1. At the time of final hearing, the property pool consisted of the following liabilities:

Liability	Owner	Amount
Various personal loans	Husband	$28,000
Go Master Card Credit Card	Husband	$9,959
CBA Gold Credit Card	Husband	$5,321
CBA Credit Card	Wife	$32,425
TOTAL LIABILITIES:	$75,705

1. Therefore, the total net pool at the time of hearing is assessed at $2,097,673.

Assessment of Contributions and s75(2) Factors

1. The Court accepts the wife’s evidence that, as at the date of cohabitation, the wife brought into the relationship the entire equity in the Suburb G property held at the time as well as the entire equity in Property B held at the time, together with her motor vehicle the motor vehicle purchased for the husband and her superannuation. Her initial contributions were significant.

2. The Court does not accept the evidence of the husband that Property B was purchased utilising the joint savings of the parties. At is highest the husband’s evidence is that the parties commenced living together in January 1997 at or around the time the property was purchased. He does not give any evidence of the parties’ joint savings prior to that time. He asserts that the property was purchased from “savings we had both accumulated in the last few years”, however he does not offer any corroborating evidence in respect of this assertion indeed he does not assert holding any particular savings at the relevant time. Whilst corroborating evidence is not necessary as a general rule, where issues are in dispute it is helpful to resolve the conflict. In this instance, the evidence in the wife’s case shows a contribution of over $36,000 from her bank account towards the purchase of this property. It is the parties’ evidence that they always had separate bank accounts and that their earnings were never intermingled in that sense. Consequently, the Court finds that the wife contributed the entire deposit for the purchase of Property B.  

3. In respect of Property A, findings have already been made that the husband, at least indirectly, contributed to the purchase price of that property. Whilst the majority of the purchase price came from the wife’s compensation payment and the Suburb G property, which she brought into the relationship, some of the purchase price did come from savings which were accumulated during the relationship. The wife conceded this much during cross-examination, albeit she refused to concede that the husband contributed in any way to these savings. The wife was adamant throughout her evidence, that it was only her hard work and effort which resulted in the parties having any of the assets which were accumulated during the relationship. The Court does not accept this part of the wife’s case.

4. As noted earlier, the Court accepts that the date of separation is June 2017. As such, the parties cohabited for a period of almost 20 years. In terms of contributions to the welfare of the family, the Court finds that the parties both contributed in this manner, with the wife taking on more of the household and child-rearing tasks. The husband, after all, was engaged in paid employment outside the home, while the wife, due to her serious workplace assault, has not worked outside the home since 1999. It is therefore more probable than not, that she was the one who was more available to take on these tasks and did take on these tasks. The Court accepts that the husband was an involved father, who helped raise the parties’ only child.

5. The wife makes allegations of family violence, some of them being allegations of serious physical assaults. She says she was frightened of the husband throughout the relationship. On balance, the Court does not find that the allegations of violence have been established to the requisite standard. For the purposes of property proceedings such allegations would only be relevant in respect of an argument pursuant to Kennon[21]. No such argument is raised in these proceedings. Findings in respect of the date of separation have already been made, and is so far as the allegations of violence are relevant therein, the evidence simply does not establish separation under the one roof as required by the authorities.  

   [21] Kennon & Kennon (1997) FLC 92-757

6. The Court finds that both parties contributed equally in respect of the non-financial contributions towards the maintenance and improvements of the various property[22] held by the parties during their relationship. The parties were in a mutually supportive relationship, which while not a ‘happy’ marriage, was one where they pooled their efforts together. Whilst their contributions differed for a number of reasons, they were united in their life together for the benefit of the family unit including in raising their child. Whilst there may been disagreements about spending patterns and the wife being much more frugal than the husband, this does not mean that only one party contributed. Each marriage is different and reasonable minds differ in terms of weight attributed to different types of contributions. In this instance taking into consideration a 20 year marriage, where both husband and wife contributed in varied ways, it is appropriate to take a broad brush approach in assessing the non-financial contributions.

   [22] Not limited to real property

7. Given the significant initial contributions made by the wife, and in line with authorities such as Pierce & Pierce[23] it is clear that the parties’ accumulated wealth can in large part be traced back to the wife’s initial contributions as well as the receipt of the personal injury award in 2005/2006. However, this does not lead to a finding that the husband did not make any contributions, or that it would not be just and equitable to make orders for property adjustment per se. It simply means her contributions overall are assessed as greater.

   [23] (1999) FLC 92-844

8. The overall contributions are assessed as 30% to the husband and 60% to the wife.

9. Both parties have some health issues. The husband is 10 years younger than the wife and he is still able to be gainfully employed. He will continue to accumulate superannuation whilst he continues to be employed. The wife will continue to receive insurance payments to her death. In this sense, the wife’s future financial resources are significant. Her future income is not dependent on her capacity to work, or her accumulated superannuation. As such, it is appropriate to make an adjustment of 7% in the husband’s favour for 75(2) factors.   

Conclusion as to Adjustment

1. In all of the circumstances of this case, the Court finds that an adjustment of 37% to the husband and 63% to the wife is appropriate and just and equitable. Given that the pool is $2,097,673, the husband will therefore receive $776,139 and the wife will therefore receive $1,321,534.

2. As such, the husband is to receive:

Item	Owner	Value
Property B	Wife	$535,000
Vehicle E	Husband	$18,880
Superannuatin fund N as at 30 September 2018	Husband	$263,620
Various personal loans	Husband	($28,000)
Go Master Card Credit Card	Husband	($9,959)
CBA Gold Credit Card	Husband	($5,321)
Plus payment from wife	$1,919
TOTAL:	$776,139

1. As such, the wife is to receive:

Item	Owner	Value
Property A	Second Respondent	$1,150,000
Vehicle C	Wife	$12,600
AMP	Wife	$102,025
Superannuation fund K	Wife	$91,253
CBA Credit Card	Wife	($32,425)
Less payment to husband	($1,919)
TOTAL:	$1,321,534

Conclusion

1. The husband seeks an order for the payment of half the cost of the valuations of the two properties the subject of these orders. In circumstances where an order was made for the valuations to be carried out and the wife did not comply with the order, it is appropriate for her to repay the husband half the cost of such valuations.

2. Otherwise, orders are made providing for the wife to retain Property A and for the husband to retain Property B. There will be a small cash adjustment in the husband’s favour.

3. In all of the circumstances, the orders are just and equitable.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 22 August 2019