Marella & Marella (No 2)
[2023] FedCFamC2F 821
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Marella & Marella (No 2) [2023] FedCFamC2F 821
File number(s): CAC 1882 of 2019 Judgment of: JUDGE W J NEVILLE Date of judgment: 5 July 2023 Catchwords: FAMILY LAW – Property, modest length relationship of parties, significant errors and omissions in Wife’s evidence much of which must be attributed to her legal representatives, which bordered on professional negligence, one child of the relationship, both young parties with some significant health issues, Wife’s omission to provide any evidence from the Father of her second child and from the maternal Grandfather, relevant adverse inferences drawn, just and equitable considerations, Orders made as sought by the Husband. Legislation: Family Law Act 1975 (Cth) Cases cited: AJO & GRO (2005) 33 Fam LR 134
Bevan v Bevan (2013) 279 FLR 1; (2013) 49 Fam LR 387
Chapman v Chapman (2015) 51 Fam LR 176
Dickons v Dickons (2014) 50 Fam LR 244
Fields v Smith (2015) FLC 93-638; (2016) 53 Fam LR 1
Jones v Dunkel (1959) 101 CLR 298
Stanford v Stanford (2012) 247 CLR 108
Division: Division 2 Family Law Number of paragraphs: 60 Date of last submission/s: 15 May 2023 Date of hearing: 6 April 2023 Place: Canberra Counsel for the Applicant: Dr S Leslie Lawyer for the Applicant: Parker Coles Curtis Counsel for the Respondent: Ms D Kaiti Lawyer for the Respondent: Blomfield Legal ORDERS
CAC 1882 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MARELLA
ApplicantAND: MS MARELLA
Respondent
order made by:
JUDGE W J NEVILLE
DATE OF ORDER:
5 July 2023
ON A FINAL BASIS IN RELATION TO PROPERTY, THE COURT ORDERS BY CONSENT THAT:
1.The Father is to retain the funds in the J Company bank account in lieu of the Mother’s half-share payment of the Dr H Report.
THE COURT FURTHER ORDERS THAT:
2.Within 10 days of the date of Orders, the Respondent Wife is to do all things necessary to facilitate the recovery and collection by the Applicant Husband of all of his personal items, including but not limited to his hobby collections, from the property located at AQ Street, City C and the NSW Police are hereby authorised and directed with such assistance as they require and if necessary, by force, to enforce this Order for the recovery of the Applicant Husband's personal items from anywhere within and on the property located at AQ Street, City C NSW.
3.Within 28 days of the date of these Orders, the parties are to do all things and sign all documents as are necessary to cause the property located at AQ Street, City C, in the State of New South Wales, being the whole of the land Folio number … ("the Matrimonial Property") to be listed for sale on the open market (“the sale”).
4.If within a period of 28 days, from the date of these Orders, the Applicant and Respondent are unable to reach agreement as to the manner, conditions or amount for which the Matrimonial Property is to be sold, the Applicant and Respondent are to do all such things as are necessary to effect the sale of the property by private treaty at the market value determined in accordance with Order 6 at the earliest possible date.
5.The parties are to appoint a real estate agent as agreed, and failing agreement that agent be AR Real Estate, City C (“the Agent”).
6.The market value of the Matrimonial Property is to be as agreed between the parties or failing such agreement the parties are to engage the President of the New South Wales Division of the Australian Property Institute or said President's nominee to determine the market value and the cost of such determination is to be paid for equally by the parties (“the market value”).
7.If the Matrimonial Property is not sold within 3 months from the date that it is listed for sale, or if the property is sold and the sale does not subsequently proceed to completion, the Applicant and the Respondent are to do all such things to offer the Matrimonial Property immediately for sale at a public auction by the Agent, with the reserve price being 95% of the market value.
8.The Applicant and the Respondent will execute all documents requested by the Agent as auctioneers for sale of the Matrimonial Property by auction, upon being requested to do so by the Agent.
9.The Applicant and the Respondent will execute a Contract for Sale.
10.The Applicant and the Respondent will cooperate in every way with the Agent in relation to the auction of the Matrimonial Property, including making the keys available for an inspection of the Matrimonial Property at times requested by the Agent and ensuring that the Matrimonial Property is in a clean and neat condition at the time of inspection by the prospective purchasers.
11.If the Matrimonial Property is not sold at the auction, within 21 days after the date of the auction, the Applicant and the Respondent, will do all things and sign all documents as are necessary to sell the Matrimonial Property at the best price then obtainable on the open market.
12.Upon the sale of the Matrimonial Property, the Applicant and Respondent shall do all things and sign all documents as are necessary to cause the proceeds of the sale of the Matrimonial Property to be distributed in the following order and priority:
(a)To pay all costs, commissions and expenses of the sale, including but not limited to costs of the Agent and conveyancer;
(b)To pay the usual rates adjustments;
(c)To pay the amount required to repay the Commonwealth Bank loan secured by the Mortgage and the parties then do all things required to discharge the Mortgages; and
(d)To pay to Mr AE and Ms AB of the balance of the Loan pursuant to the loan agreement executed and dated 31 July 2015;
(e)Payment to the Applicant of 50% of the residue of the settlement sum; and
(f)Payment of the balance then remaining to the Respondent.
13.Any and all upfront costs associated with the sale of the Matrimonial Property, including but not limited to conveyancing and agency marketing costs, are to be equally borne by the Parties.
14.The Applicant and the Respondent be restrained from further encumbering the Matrimonial Property, except to the extent necessary to comply with these Orders.
15.Except as otherwise provided in these Orders:
(a)The Applicant and the Respondent be entitled to be 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; and
(b)The Applicant will retain sole liability for and will indemnify and continue to indemnify the Respondent with respect to any loan, lease, or credit card liability held or registered in his sole name or jointly with a third party; and
(c)The Respondent will retain sole liability for and will indemnify and continue to indemnify the Applicant with respect to any loan, lease, or credit card liability held or registered in his sole name or jointly with a third party.
16.Should either Party fail to do all acts and things necessary to forthwith sell the matrimonial property in accordance with either the above Orders, then the Registrar of this Court, be appointed pursuant to section 106A of the Family Law Act to execute such deed, instrument or document either in the Applicant husband's or Respondent wife's name, to give effect to these Orders, and to do all acts and things necessary to give validity to the operation of the deed, instrument or document.
17.In the event that the Registrar of this Court be appointed in accordance with Order 16 above, then the party in breach of compliance with these Orders shall be liable for the additional costs occasioned by the default and shall pay such costs to the other party's solicitor on an indemnity basis forthwith on settlement of the sale of the matrimonial property, should said property be sold prior to any Final Orders being made by the Court.
18.Absent any Application filed within 21 days by either party, each party is to bear their own costs.
AND THE COURT NOTES THAT:
A.It is directed that the Judgment delivered with these Orders is to be provided to the senior partner of the firm in which the Mother’s former legal representative is employed.
B.Pursuant to Section 81 of the Family Law Act 1975 these Orders are in full and final settlement of all financial (property and spousal maintenance) matters between the Applicant and the Respondent.
C.The provisions of Section 77A of the Family Law Act 1975 are not applicable in these proceedings.
D.The parties hereby acknowledge that pending completion of these Orders they hold their respective interest in the property dealt with in these Orders on trust pursuant to these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Marella & Marella has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction
Having delivered lengthy reasons last year in relation to parenting matters, what follows is a further instalment in the ongoing litigation between the parties.[1] As with most matters, particularly regarding property, the property contest between the parties should have resolved long ago. Regrettably, and obviously, it has not. It was put somewhat pithily by the Respondent Wife in one of a number of less than productive directions hearings when she said, with a degree of somewhat feigned plea of helplessness, “I want you [the Court] to decide”. This was in lieu of the parties reaching agreement regarding financial matters that were, or should have been, largely not in dispute.
[1] The parenting judgment is Marella & Marella [2022] FedCFamC2F1564.
Summarily, the following matters are not, or cannot be, disputed, based on the evidence at trial, and/or from the evidence recorded and accepted in the course of the parenting proceedings:
(a)The relationship between the parties was of approximately 10 years (between 2008 and 2018). They were married in 2012. They are aged 33 and 31 years respectively. Subject to what is set out later, they are both in reasonable health. Again for reasons set out below, neither party is in paid employment;
(b)There is one child of that relationship, X. Despite Orders of the Court for a process by which the Father and X would begin to spend time together again, the actions (and notably inaction) by the Wife and Mother has regularly thwarted that time between Father and son. The Mother has been warned repeatedly of the risks of non-compliance, which could result in X going to live with the Father;
(c)Both parents have different health issues. The Father has long had some mental health issues, arising from when he was working, which ultimately led to a diagnosis of PTSD (among other things). He receives a disability pension, and some insurance payments. He remains under significant medical care. The Wife has repeatedly asserted that she suffers from a medical condition, which has resulted in her receiving a disability pension. However, at trial, her contentions regarding a disability pension were largely disproved. She receives various government benefits as a single Mother, which are set out in submissions below;
(d)The child of the relationship, X, who is now in basic good health, had, and to some degree still has, significant health issues. He attends ongoing medical appointments regarding the monitoring of his ailments;
(e)The principal asset in the property pool is the former marital residence. Its value can hardly be disputed, together with its liabilities, as set out in the Husband’s summary of the property pool (and submissions) set out below. That said, it proved to be excruciating, bordering on the impossible, to secure a valuation of the property. Such attempts were regularly thwarted by the Wife, regularly through contrived misadventures, and equally regularly through the Wife’s extravagant claims of the purported risk the Husband posed or continues to pose, to her, to X, and almost anyone and everyone else. On the evidence before the Court, and having now had the benefit of both parties giving evidence – twice – I have no doubt that the Father loves his son devoutly, and would not risk harming him in any way. In my view, not least in the light of the extensive medical evidence provided by the Husband, whatever difficulties were once evident during the relationship (which are well documented and commented on by Dr H in his earlier Report, which was in evidence in the parenting matter), the Husband poses no risk to anyone. He has lived in City Z for some time but returns regularly to City C to spend time with the paternal family, who also remain, in my view, unreasonably deprived of the company of X, which has been the case now for many years;
(f)In general but often shifting terms, the Wife complained about the Father not paying her child support. The Mother now has a young second child, the Father of whom is a Mr AS. For no proper or reasonable reason, the Mother refused to disclose the name of this child (without knowing the basis for the child’s name, whose surname and middle name are those of his Father). Moreover, there is not the slightest evidence that the Applicant Father here has the slightest interest in the Mother’s second son, other than presumably as X’s brother. As well, although City C is a city of modest size, given the general nature of country towns where, by various means, people tend to know general information about a wide range of others in the community, especially when the second son at least starts day-care and certainly school, his name will become readily known. Finally, at the Court’s direction, the Wife wrote the child’s name on a piece of paper and provided it to the Court.
(g)She confirmed that she seeks, and is paid, no child support from Mr AS. It was pointed out to her the illogically and injustice of her position of requiring child support from one Father but not the other. Somewhat blithely, sometimes bordering on the coquettish, she again feigned either ignorance, disbelief, or both;
(h)Concerningly, Mr AS provided no evidence. Neighbours of the Wife, who were not required for cross examination, provided affidavit evidence of regularly seeing the prominently-named work vehicle (a vehicle emblazoned with his work logo and contact details) of Mr AS at the Mother’s residence. She confirmed that he spent somewhat regular time with their son, and sometimes stayed overnight. It is undisputed that a range of his furniture adorned the Wife’s house, including a very large bed in the Mother’s bedroom. Pursuant to the principles articulated by the High Court in Jones v Dunkel, I am urged to draw the relevant [adverse] inference to the effect that the evidence not called would not materially assist the case of the party in question, which I do, based on the unchallenged evidence of the Wife’s neighbours, and the lack of evidence from Mr AS, that (at least) the Wife and Mr AS remain in a relationship.[2] Further, it is more likely than not that he provides financial, and other, benefits to the Wife;
(i)A further and ongoing difficulty for the Court and for the Husband was the Wife’s changing position regarding what Orders she sought. At one stage, partly in keeping with the limited material filed on her behalf, the Wife’s Counsel confirmed that the Mother sought (in percentage terms) a “70/30” split in her favour. Yet in her oral evidence, the Wife said that her preferred position was that the Husband receive nothing and that, consequently, she would receive the net assets of the couple;
(j)The Wife’s position was further complicated because she said that, if the Husband was to receive some payment from the property pool, with the assistance of her Father, she would pay out the Father and retain the former marital residence. The complications arose/arise this way. As noted already, the Mother lives on government benefits of one sort or another. The Court knows nothing of what, if anything, Mr AS provides to the Wife either for the household generally, and/or simply for the care and support of their son. The Wife said that her Father would assist her. Unfortunately, (i) the maternal Grandfather filed no evidence, other than an unsworn, short Affidavit, that was filed at 8:46 pm on the evening prior to the trial commencing. Ultimately, after argument, it was ruled to be inadmissible on multiple grounds;[3] and (ii) the Grandfather was not otherwise called to give any evidence in support of the Wife’s claims and contentions. Further, the Wife’s payments towards the mortgage since the parties’ separation, but specifically from January 2019 and September 2022, were very modest, and totalled some $10,600.62. She proposes, as does the maternal Grandfather, that he would (or has already) liquidate all of his superannuation to enable the Wife to pay out the Husband, and for the maternal Grandfather to live off what remains. How he would do both (pay out the Husband and have sufficient funds on which to live) was never explained;
(k)For a brief moment early in the trial, the Wife sought to run a so-called Kennon argument arising from what she described as [alleged] family violence during the relationship. After some discussion with the Wife’s Counsel, this claim, which had never been raised in the evidence, was not pursued. It was, in my view, a plainly desperate and unsupportable argument;
(l)In short, in my view, like much of the Wife’s evidence, it was lacking in specifics and independent evidentiary support, and regularly bordered on the fanciful.
[2] Jones v Dunkel (1959) 101 CLR 298.
[3] It would take the matter far afield if one was to go into the relatively brief evidence regarding the contentions by the Wife’s Counsel that the maternal Grandfather signed his Affidavit at the offices of the Wife’s solicitor but for reasons unexplained, his Affidavit was not witnessed by the lawyer. Further not explained was the fact that the trial had been set many months ahead of the hearing date. How and why the maternal Grandfather’s Affidavit was not prepared well beforehand, rather than the day or night before the trial, was likewise never explained. In other circumstances, a number of questions would likely be asked, formally and otherwise, of the lawyer involved.
Because of the immense problems with the Wife’s documentary and oral evidence, and the regularly, independently supported evidence of the Husband, wherever there is any difference between the evidence of the parties, I prefer and accept that of the Husband. Other evidentiary and procedural issues regarding the evidence and conduct of the Wife’s case (e.g. including there being no Case Outline until after the trial commenced, no tender bundle, no joint balance sheet, very late filing of Wife’s material, deficient financial disclosure) are all properly raised in the Husband’s Submissions, which I accept. Subject to what is said later, the responsibility for the deficiencies in the Wife’s material, which was, in a number of instances, simply re-filed material from last year with little or no amendment, obviously falls formally on the Wife’s shoulders, but equally so on her young lawyer who seemed regularly distracted at the multiple mentions/directions, and generally not across or properly au fait with the material. Simply to re-file an Affidavit from the previous year (which still had a Court seal from that time on it), with little or no amendment bordered on professional negligence. These reasons are to be provided to the senior partner of the firm in which the Wife’s lawyer is employed.
Indeed, so problematic was the Wife’s case that, in lieu of the matter proceeding on an undefended basis, it effectively proceeded on a “show cause” basis as to why the Court should not make the Orders as sought by the Husband.[4]
[4] See the extended discussion at Transcript (6th April 2023) at pp.9ff. Hereafter all such references will simply be “T” followed by the page number.
In very general terms, and with some relevant “tweaking”, for the reasons already given and those which follow, the Orders sought by the Husband are, in my view, just and equitable.
Applicant’s Orders Sought
The Applicant’s Orders Sought were contained in the Outline of Case Document filed 4th April 2023. On the morning of the Final Hearing, Counsel for the Applicant sought to clarify that the split sought by the Applicant Husband was 50-50 rather than 60-40 as indicated in the Minute of Orders Sought attached to the Outline of Case Document; those orders were as follows (emphasis in original, and noting again the confirmation by Counsel of the Husband seeking a 50/50 division of the net proceeds of sale):
IT IS ORDERED:
1.That within 10 days of the date of Orders, the Respondent Wife is to do all things necessary to facilitate the recovery and collection by the Applicant Husband of all of his personal items, including but not limited to his [hobby collection], from the property located at number [AQ Street, City C], NSW and the NSW Police are hereby authorised and directed with such assistance as they require and if necessary, by force, to enforce this Order for the recovery of the Applicant Husband's personal items from anywhere within and on the property located at [AQ Street, City C], NSW.
2.That within 28 days of the date of these Orders, the parties are to do all things and sign all documents as are necessary to cause the property located at [AQ Street, City C], in the State of New South Wales, being the whole of the land Folio number … ("the Matrimonial Property") for sale on the open market (“the sale”).
3.That if within a period of 28 days, from the date of these Orders, the Applicant and Respondent are unable to reach agreement as to the manner, conditions or amount for which the Matrimonial Property is to be sold, the Applicant and Respondent are to do all such things as are necessary to effect the sale of the property by private treaty at the market value determined in accordance with Order 5 at the earliest possible date. That the parties are to appoint a real estate agent as agreed, and failing agreement that agent be [AR Real Estate, City C] (“the Agent”).
4.That the parties are to appoint a real estate agent as agreed, and failing agreement that agent be [AR Real Estate, City C] (“the Agent”).
5.That the market value of the Matrimonial Property is to be as agreed between the parties or failing such agreement the parties are to engage the President of the New South Wales Division of the Australian Property Institute or said President's nominee to determine the market value and the cost of such determination is to be paid for equally by the parties (“the market value”).
6.That if the Matrimonial Property is not sold within 3 months from the date that it is listed for sale, or if the property is sold and the sale does not subsequently proceed to completion, the Applicant and the Respondent are to do all such things to offer the Matrimonial Property immediately for sale at a public auction by the Agent, with the reserve price being 95% of the market value.
7.That the Applicant and the Respondent will execute all documents requested by the Agent as auctioneers for sale of the Matrimonial Property by auction, upon being requested to do so by the Agent.
8.That the Applicant and the Respondent will execute a Contract for Sale.
9.That the Applicant and the Respondent will cooperate in every way with the Agent in relation to the auction of the Matrimonial Property, including making the keys available for an inspection of the Matrimonial Property at times requested by the Agent and ensuring that the Matrimonial Property is in a clean and neat condition at the time of inspection by the prospective purchasers.
10.That if the Matrimonial Property is not sold at the auction, within 21 days after the date of the auction, the Applicant and the Respondent, will do all things and sign all documents as are necessary to sell the Matrimonial Property at the best price then obtainable on the open market.
11.That upon the sale of the Matrimonial Property, the Applicant and Respondent shall do all things and sign all documents as are necessary to cause the proceeds of the sale of the Matrimonial Property to be distributed in the following order and priority:
a.To pay all costs, commissions and expenses of the sale, including but not limited to costs of the Agent and conveyancer;
b.To pay the usual rates adjustment;
c.To pay the amount required to repay the Commonwealth Bank loan secured by the Mortgage and the parties then do all things required to discharge the Mortgages; and
d.To pay to [Mr AE] and [Ms AB] of the balance of the Loan pursuant to the loan agreement executed and dated 31 July 2015;
e.Payment to the Applicant of 60% of the residue of the settlement sum; and
f.Payment of the balance then remaining to the Respondent.
12.That any and all upfront costs associated with the sale of the Matrimonial Property, including but not limited to conveyancing and agency marketing costs, are to be equally borne by the Parties.
13.That in the event that the Matrimonial Property is to be sold in accordance with Orders 2 to 10, and the parties cannot agree on the terms and conditions of the sale, the parties have liberty to apply to the Court as to the terms and conditions of the sale on 7 days’ notice to the other with respect to the terms and conditions of the sale.
14.That the Applicant and the Respondent be restrained from further encumbering the Matrimonial Property, except to the extent necessary to comply with these Orders.
15.That except as otherwise provided in these Orders:
a.The Applicant and the Respondent be entitled to be 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; and
b.The Applicant will retain sole liability for and will indemnify and continue to indemnify the Respondent with respect to any loan, lease, or credit card liability held or registered in his sole name or jointly with a third party; and
c.The Respondent will retain sole liability for and will indemnify and continue to indemnify the Applicant with respect to any loan, lease, or credit card liability held or registered in his sole name or jointly with a third party.
16.That should either Party fail to do all acts and things necessary to forthwith sell the matrimonial property in accordance with either the above Orders, then the Registrar of this Court, be appointed pursuant to section 106A of the Family Law Act to execute such deed, instrument or document either in the Applicant husband's or Respondent wife's name, to give effect to these Orders, and to do all acts and things necessary to give validity to the operation of the deed, instrument or document.
17.That in the event that the Registrar of this Court be appointed in accordance with Order 16 above, then the party in breach of compliance with these Orders shall be liable for the additional costs occasioned by the default and shall pay such costs to the other party's solicitor on an indemnity basis forthwith on settlement of the sale of the matrimonial property, should said property be sold prior to any Final Orders being made by the Court.
NOTATIONS
A.Pursuant to Section 81 of the Family Law Act 1975 these Orders are in full and final settlement of all financial (property and spousal maintenance) matters between the Applicant and the Respondent.
B.The provisions of Section 77A of the Family Law Act 1975 are not applicable in these proceedings.
C.That the parties hereby acknowledge that pending completion of these Orders they hold their respective interest in the property dealt with in these Orders on trust pursuant to these Orders.
Respondent’s Orders Sought
The Respondent’s most recently filed Orders Sought were contained in the Response to an Initiating Application filed 29th September 2022. However, on the morning of the Final Hearing the Respondent filed an Outline of Case Document indicating she was seeking a 70‑30 split in her favour. The Respondent’s Counsel confirmed this to be the case, however no formal document was filed setting out the Orders Sought by the Respondent.
Under cross-examination, the Mother appeared to revert to her initial position, namely that she sought that the Applicant Husband transfer his right, title and interest in the former matrimonial home to the Wife with no pay out to the Husband. The Respondent’s Orders Sought contained in her Response to Initiating Application filed 29th September 2022 are as follows:
1.That within 90 days of the date of these Orders (First Date) and subject to the Wife’s compliance with his obligations pursuant to paragraph 2 of these Orders;
a. The Husband do all things, sign all documents and give all necessary instructions required to transfer all of his right, title and interest in the property at [AQ Street, City C], NSW more particularly described in Certificate of Title Folio Identifier […] (“the real property”) to the wife at her expense; and
b. Procure the Withdrawal of Caveat registered number […] to Legal Aid Commission of NSW (Caveat 1) insofar as it relates to Certificate of Title Folio Identifier […], at the Husband’s expense.
2.That within 90 days and contemporaneously with the Husband’s obligations pursuance to paragraph 1 of these Orders, the Wife do all things, sign all documents and give all necessary instructions required to:
a. Discharge mortgage registered number […] to Commonwealth Bank of Australia (Mortgage) and indemnify the Husband against all approportionate rates, taxes and outgoings of or with respect to the real property or whatsoever nature and kind at the Wife’s expense; and
b. Procure the Withdrawal of Caveat registered number […] to Legal Aid Commission of NSW (Caveat 2) insofar as it relates to Certificate of Title Folio Identifier […], at the Wife’s expense/
3.That within 90 days and contemporaneously with their obligations in paragraphs 1 & 2 the Husband and Wife Procure the Withdrawal of Caveat registered number […] to [Ms AB] & [Mr AE] (Caveat 3) insofar as it relates to Certificate of Title Folio Identifier […], with all costs to be shared equally.
4.The Husband retain his [hobby collection].
5.The Husband retain the [Motor Vehicle 1] with identification number […] and indemnify the Wife against all associated liabilities.
6.That within 90 days of the date of these orders the monetary funds held in trust for [X] be returned to the benefactors.
7.Unless otherwise specified in these orders and save and except for the purpose of enforcing any monies due under these or any 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 the date of these orders;
b. Each party forgoes any claims they may have to superannuation benefits belonging to or earned by the other;
c. Insurance policies remain the sole property of the owner named therein;
d. Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
e. Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
f. Each party shall bear their own costs of the proceedings.
Chronology
The following brief chronology, provided by the Husband, assists in detailing an overview of signal events in the lives of the parties.
Chronology of events Briefly outline significant events in chronological order relevant to the issues to be determined by the Court Date Event 1989 Mr Marella (“Husband”) born 1991 Ms Marella (“Wife”) born 2008 Parties start dating 2010 Husband purchases AT Street property (purchase price $190,000 – equity $19,000) 2012 Parties marry and commence living together 2015 Parties purchase City C property with loan from the husband’s parents 2015 Parties’ son X born 2016 Husband sells AT Street property 2017 Parties refinance mortgage to borrow further $35,000 to purchase Motor Vehicle 4 2018 Husband ceases work 1.11.2018 Parties separate on a final basis March 2019 – July 2019 Husband receives compassionate release of his superannuation to meet his medical and living expenses. 2020 Parties divorce 16.11.2022 Final Parenting Orders made re X Unknown Wife’s child with Mr AS born The Wife’s evidence
Summarised, the Wife’s evidence was as follows.
First, the Wife confirmed that her last, and only, Financial Statement, as filed, is dated 29th September 2022. When asked why she had not filed an updated Statement, she simply stated that she did not recall being asked to do so. She said further that her bills remained exactly as they were as set out in the September 2022 Financial Statement, except for the addition of her son into her household.
Next, the Wife confirmed that she sought to have the former marital residence transferred to her and that the Husband receive no payment. She repeated simply that she wanted the Court to decide the matter. She confirmed that there were three caveats over the property – two lodged by the ICL and the third lodged by the Husband’s parents, all of which relate to debts owing by the Wife, solely or jointly (e.g. there is an acknowledged debt to the Husband’s parents regarding a loan of $30,000, which the Wife seeks, quite inexplicably, to have the Husband bear completely). There was, typically, some variation about this and other debts, such that some of them, she averred, were to be paid by her Father
This said, earlier in her evidence, she proposed that her Father would pay out the debt owed to Legal Aid of approximately $9000.00, and that her Father would also pay out half of the debt owing to the paternal Grandparents, a sum of $15,000.00. Making these payments would result in the caveats on the property being lifted.
The Mother said that the basis of her contention that the Husband be paid nothing arose from (a) significant contributions paid into the Husband’s superannuation during the relationship (the Wife acknowledged that such contributions came solely from the Husband’s income at the time because she was not employed); and (b) the purchase of a Motor Vehicle 1. Again, relevant details were lacking, save that in the course of discussion with the Wife’s Counsel, it was confirmed that the Motor Vehicle 1 in issue had been purchased during the relationship and, on the contentions from the Bar Table, had been disposed of by the Husband sometime during the litigation for something like $20,000. It was asserted that the purchase price was something like three times this amount. At other times, she suggested that its value was somewhere between $30 – 35,000.00. The Wife sought to have the purchase price of the Motor Vehicle 1 added-back to the property pool.[5]
[5] Among many places, see the discussion at T 11, 26, and 30.
The Wife’s September 2022 Financial Statement deposed that she (and the Husband) held very modest superannuation. In her oral evidence, she confirmed, without detail, that both parties had superannuation.[6]
[6] See T 45 & 46.
The Wife was taken through various bank accounts in her name. Some accounts, she said, she had forgotten she still had, and therefore they had not been disclosed. They had no funds in them, she deposed. Others, such as an account with AU Bank, confirmed that it had something like $4000.00 in it. The Wife said that this was from funds accumulated from “having the baby.”
Regarding the new baby, the Wife said that she had wanted another baby; Mr AS “obliged” in this regard but has no parental responsibility for the child, and provides no financial or other support for him.[7] From time to time, it seems, he mows the Wife’s lawn, but apparently few other services are provided.
[7] T 50.
The Wife confirmed that she “gifted” a Motor Vehicle 2 to her Mother sometime in 2019. It was estimated to be worth approximately $15,000.00. No formal transfer papers were produced. She resisted any suggestion that this sum should be added back into the pool. This was in circumstances where she confirmed that the car remained at her house for her use. Methinks there is some inconsistency, incongruity and tension here – as with much of the Wife’s evidence.
The Wife said that she has owned Motor Vehicle 5, but has never owned a business. She worked, some time ago, as a tradesperson but has since sold off equipment regarding this profession, such as furniture and the like.
Returning to issues surrounding superannuation, the Wife confirmed that she had approximately $14,000.00 in superannuation.
The Wife confirmed that she still held or retained much, or at least some, of the Husband’s personal belongings. Again, details were somewhat limited. Obligingly, Mr AS seems to have listed something things for sale on Facebook. Why this was so was not explained.[8] She confirmed that there was no reason why the Husband could not collect his personal items from the former marital residence. There was brief discussion regarding the logistics of having these personal items collected.
[8] T 62 ff.
The Wife was challenged, briefly, about how (if at all) her medical condition might affect her capacity to work, now or in the future. Her generalised response was to the effect that there would be something from a specialist, somewhere in the material, which would support her inability to work because of her medical condition. Regrettably, like much of the Wife’s evidence, such general statements assisted her, and the Court, not a jot.
In summary, as already noted, the Wife’s evidence was regularly deficient and cursory, including the few attempted explanations for multiple absences and omissions in detail, including the lack of basic updating documentation regarding, for example, superannuation. Given how modest the pool is, and how long the litigation has been on foot, with the Wife regularly legally represented, it was completely unsatisfactory how deficient her evidence was. In short, the Wife’s evidence, oral and written, was very unsatisfactory. Her oral evidence was perfunctory if not regularly curt. The clear impression was that she recognised, up to a point, her completely compromised position (notably but not only in relation to the lack of evidence from Mr AS, as well as from her Father) and she therefore determined to minimise her exposure to more harm by reducing her responses in cross examination to the barest minimum. It gave the impression that, to some degree, she recognised that “the game was up”, to speak colloquially, but she was going to resist anything and everything along the way as her financial ship sank.
The Husband’s evidence
Summarised, the Husband’s very brief evidence was as follows.
Although it was not formally put, the Husband’s evidence, particularly regarding the treatment he receives from his psychiatrist and medication prescribed was extensively set out in the parenting judgment. His psychiatrist gave evidence at that trial but was not required for the property matters. Many of the questions put to the Husband regarding treatment of his mental health issues, his treatment, the cost of his medication and the like were all laid out plainly in the earlier proceedings. The Wife’s regular contentions about not knowing, or not being provided with, such information was inappropriate and inaccurate. The Husband’s evidence on such matters was, therefore, in the light of the parenting hearing and judgment, more by way of update. Indeed, early in his cross examination on such matters, I noted to the Wife’s Counsel that they were all canvassed in detail in the parenting litigation, including in the parenting judgment. Quite surprisingly, she contended that she did not have access to that judgment even though it was sent to the parties (one of whom is, obviously, her client) and which is otherwise publicly available.[9]
[9] See T 76.
The Husband confirmed that he disposed of Motor Vehicle 4 perhaps 2019 or 2020. He sold it for approximately $20,000.00. He said that this sum was used by him for living expenses, as were general draw-downs on his superannuation, since separation.
The Husband confirmed that he has not been in paid employment since shortly prior to separation. He confirmed also that he remains on a disability pension.[10] The Husband noted that he effectively lives at two addresses, one in City Z and the other in City C (NSW). He resides in City Z because it is easier for him to travel to Sydney for his regular medical appointments.[11] He said that he lived perhaps “50/50” between the two residences, the one in City C being that of his parents. Details of his rent and payments were provided. I need not detail them here, save to note that there was a call for bank statements that showed his regular rental payments and the agent who received them.[12]
[10] T 76 ff.
[11] T 78.
[12] See T 78 – 79.
The Husband said that it is unlikely that he will ever be able to be in paid employment again due to his medical issues. Certainly, once the litigation is concluded, it will be one less stressor out of his life.
The Husband confirmed that his hobby collection could only be at the former marital residence, notwithstanding that the Wife says that the collection is not there. He also confirmed that he puts money aside into an account for X, which he had attempted (unsuccessfully) to offer to the Mother and that he continues to pay health insurance for his son. He also said that health insurance information for X (including a membership card) was provided to the Mother via his previous solicitors.
Regarding the “fixation’ on matters relating to the Motor Vehicle 1, the Husband said that the Mother was aware of its purchase because that occurred during the relationship, and that her Father went with the Husband to pick it up – so, in his view, the Wife knew all about the Motor Vehicle 1. The Father confirmed in his Affidavit evidence that he and the Mother used the Motor Vehicle 1 while they were married.
The Husband confirmed that he knows that X lives full-time with the Mother; he said that he is not in any relationship; and if he borrows any funds or receives financial assistance from his parents, he pays them back. Details of the funds he receives from his disability pension, and from his income protection insurance, were outlined: approximately $566.50 per week from his pension, and approximately $2700 per month from his insurance, subject always to him getting a report from his psychiatrist, which sometimes is delayed due to various circumstances.
The Husband’s limited evidence was (a) consistent with his evidence in the parenting trial, (b) very straight-forward and uncomplicated, (c) earnest and simple, without embellishment. I accept the Husband’s evidence.
Evidence of paternal Grandfather
Mr AE gave very brief oral evidence. This was simply to confirm that the Husband regularly resides with them whenever he returns to City C from City Z. He said that the Husband goes back and forth between City Z and City C “all the time.”
The Grandfather also confirmed that he (and his Wife) support their son whenever such is required. He said that he did not seek to have any funds repaid because “he is my son.” However, in relation to a formal loan, this would have to be re-paid.
There were a couple of other brief matters regarding repairs to the former marital residence of the parties, and matters regarding hair-cutting. These did not assist in any relevant respect.
I have no reason to doubt any of the evidence given by the paternal Grandfather.
Written submissions on behalf of the Applicant
The Applicant Husband’s written submissions were filed on 4th May 2023; they were as follows (emphasis in original):
1.This property matter was heard on 6 April 2023. Parenting proceedings for these parties had been heard in May and June 2022 and a decision in relation to the parenting dispute was handed down on 16 November 2022. Orders for written submissions and the filing of a Joint Tender Bundle were made on 6 April 2023 and these submissions are filed in accordance with those Orders.
2.At the conclusion of proceedings His Honour made directions for the filing of a joint tender bundle within 7 days. Given the Wife's legal representatives failed to respond to questions about what, if anything, they sought be included, a “Joint” Tender Bundle was filed on behalf of the Husband. References in these submissions are to that Tender Bundle.
3.Orders were also made about arrangements for the collection of the Husband’s personal effects and items within 21 days. If either party wishes to make any application in relation to that they may need to seek have the matter relisted pending delivery of judgment.
The Difficulties with the Respondent Wife’s Documents and Her Evidence
4.The property proceedings were attended with many of the same difficulties encountered in the parenting proceedings: the Wife was reluctant to or simply failed to provide relevant and necessary information. She failed to comply with filing deadlines and Rules of the Court in relation to the same. Notably, the Wife was legally represented throughout the proceedings.
5.The Wife’s affidavit failed to provide relevant information about current assets and liabilities. She chose not to respond to much of the Applicant Husband’s evidence, leaving the Court and the Husband in the dark as to what her evidence about such things would ultimately be. That was especially problematic in circumstances where disclosure was not up to date and no Case Outline with a balance sheet had been filed by the Wife (though one did ultimately appear, which will be addressed in due course). No proper evidence was filed by relevant and necessary supporting witnesses. The Wife did not file an updated Financial Statement and relied on her Statement from 29 September 2022. The Husband therefore filed his Case Outline without the benefit of knowing what the Wife’s current assets were, or what she asserted in relation to other balance sheet items, or important elements of her evidence. Ultimately this evidence needed to be obtained by way of cross-examination.
6.A Case Outline for the Wife was then filed at 10:05am, literally during the proceedings. That Case Outline contains 3 entries in the balance sheet. It did not represent all the assets and liabilities of the parties – which is extraordinary given the Wife had by this stage had the benefit of the balance sheet prepared on behalf of the Husband and could presumably have copied the parts that were agreed – leaving the impression that any or all of the excluded items may have been in dispute. Her Case Outline indicated that the Wife was seeking a 70/30 split in her favour. What the pool is that she says is to be split is not clear from the document. It was also unclear what proportion of the percentage was based on contributions and what was based on future needs since the persons preparing the Case Outline on behalf of the Wife curiously elected not to complete the section on contributions. Counsel for the Wife confirmed in preliminary addresses that the Wife was indeed seeking a 70/30 split. Unhelpfully the Wife later resiled from this position in cross examination and indicated that she just expected to be able to retain the former matrimonial home, make no payment to the husband, and that they otherwise retain what was in their name as “that would be preferred” by her.
7.The Wife refused to provide the name of her new child in her affidavit or in open Court. Quite what danger could possibly have attended the revelation of this information in circumstances where the Court and the Husband know both where the child resides and who the father of the child is, was entirely unclear, but in any event at His Honour’s request a note was handed up to His Honour inscribed with the name of the child.
8.In part as a result of these deficits in the wife’s evidence and trial documents, His Honour determined that despite being the Respondent in the proceedings she would be required to give evidence first. Counsel for the Wife then informed the Court and the Husband for the first time that she now intended to press a Kennon claim that had not been foreshadowed. This was ultimately abandoned after the difficulties with the position, lack of procedural fairness and the complete lack of any relevant evidence was pointed out to Counsel for the Wife by His Honour.
9.The Wife’s affidavit provided no real indication of how she intended at a practical level to facilitate the Orders she was seeking to retain the former matrimonial home. She stated in her affidavit (filed 29.3.23) at paragraph [50] “I have assistance from my father who is going to help me with the balance of the mortgage of the home.” This was the extent of her evidence in chief on the issue. While the issue of any payment to the husband remains a live one in these proceedings, it is an agreed fact that the mortgage is in joint names and in the sum of approximately $311,000, so at the very least the wife would need to be able to refinance this amount into her name, or into joint names with someone else, or borrow that amount from someone else. She did not provide the evidence necessary for the Court to find that any of these options are possible in her material or in her oral evidence. It is also an agreed fact in the proceedings that the Wife is not employed, and her income is by way of government benefits. By the time the proceedings commenced at 10:00am on 6 April, a formally deficient and unhelpfully vague affidavit had been filed on behalf of the Wife’s father at 8:46pm the night before the trial. Objection was taken to this affidavit. It was ultimately ruled that the affidavit was to be excluded. Given that her father’s evidence was crucial to her ability to obtain orders that she retain the property, it is assumed that proper diligence and care would have attended to ensuring that this evidence was properly before the Court. This did not occur. The Wife’s oral evidence on this issue was ultimately essentially the same as what she set out in her affidavit which can be summarised as an acknowledgement that she would need assistance as a bank was unlikely to lend her the money alone, and that she expected her father to provide this assistance.
10.It was well-known to everyone involved that a significant issue in the proceedings was the Wife’s relationship with [Mr AS], who is the father of the Wife’s second child (an infant), and what financial support or resources, if any, he may provide the wife, and whether he was living in the former matrimonial home and under what circumstances. It was raised in a directions listing. It was raised by His Honour’s Associate in email correspondence with the parties prior to the hearing. It was raised in the Husband’s affidavit. The Husband filed affidavits by two witnesses whose evidence went specifically to this issue. The Wife chose not to file an affidavit by [Mr AS] or subpoena him to give evidence. Her evidence in relation to [Mr AS] is at paragraphs [57]-[61] of her affidavit which state: “I am not in a relationship with [Mr AS][sic], we are friends. [Mr AS] and I share my youngest child together. There are times that [Mr AS] visits my home so that he can visit his child. I also borrowed [Mr AS]’s [motor vehicle] when my vehicle was damaged, my neighbors may have also seen the vehicle during this time. [Mr AS] has gifted me some items from his [work] which are at my home.” In cross examination the Wife was shown Facebook posts by [Mr AS] that depict himself and the Wife that date back to January 2020 (Tender Bundle No.4 and No.5). In oral evidence the wife intimated that she remained in a sexual relationship with [Mr AS] (“no comment”) and confirmed that they have a child together and that he spends time with the child, sometimes staying overnight at the Wife’s home. The Husband seeks that the Court draw the inference available given [Mr AS]’s evidence was identified by the Court as being of significant relevance, and his failure to give evidence was not satisfactorily explained, that it would not have assisted the Wife. The Husband relied on the affidavits of [Ms AV] and [Ms AW]. These witnesses give evidence in relation to their personal observations of [Mr AS]’s regular and long-standing presence and activity at the former matrimonial home and in conjunction with [Ms Marella] in the local community. No objection was taken to these affidavits by the Wife, and these witnesses were not required for cross-examination. The legal representatives for the Wife did not comply with the Rules requiring notice to be given that a witness was required, nor did they do the Husband and his lawyers the courtesy of providing this information even if it was late. Despite this, the Husband still ensured that both witnesses travelled from out of town to appear. Their evidence therefore goes in in its entirety.
11.The Wife was cross examined in an attempt to ascertain her position in relation to the current assets and liabilities of the parties. Calls were made for statements or screenshots that showed the current balances of her various bank accounts. Although documents were produced none of them provided current balances. They were statements that went up to December 2022. It was reluctantly agreed that production could occur after the conclusion of the proceedings given that written submissions would occur. As will be discussed below, it did not.
12.The Wife agrees that there is a $30,000 loan owing to the Husband’s parents pursuant to a formal loan agreement. The Husband’s parents have a caveat over the former matrimonial home. The Wife agrees that this should be repaid. Her proposal for how this is to occur appears to be that the Husband be responsible for repayment of half of the amount and that she will ask her father to pay her half. It is no clear where she says the Husband should obtain the money. One hopes it will not be asserted that he needs to borrow or obtain money from his parents to pay back the loan to his parents.
13.The Wife accepts that both she and the Husband owe amounts to Legal Aid for fees associated with an ICL’s involvement in the parenting matter. Legal Aid also have a caveat over the former matrimonial home. The funds will need to be paid if the caveat is to be lifted. The wife’s proposal for dealing with this appears to be that the Husband be responsible for payment of his amount and that she will ask her father to pay the amount that she owes so that the caveat Legal Aid NSW has placed on the property can be lifted.
14.The Wife complains at paragraph [27] of her affidavit of funds that she says the husband withdrew from the “mortgage” between early 2017 and late 2018 (this is stated in general terms as the Wife does not provide the dates of the transactions, just the date ranges of the statements). It is an agreed fact that the parties separated in November 2018. The transactions were during the relationship, not post separation, and the vast majority of the sum was for the purchase of a [Motor Vehicle 1] for the parties’ joint use during the relationship that the Wife’s own evidence is that she knew about [37].
15.The wife appears to assert that there should be an addback for the proceeds of sale of the [Motor Vehicle 1] that the husband sold post separation. His evidence is that he used the funds to assist in meeting his living expenses. Given the limited means of the Husband, and that the uncontroverted evidence is that he still needs to borrow money from time to time from his parents to meet bills and expenses, there is no basis to doubt that this was so. The wife gives evidence that she gifted a vehicle to her mother and received nothing for it. It is open to the Court to find that neither is added back given the sums involved and the fact that both have had the benefit of a matrimonial asset unilaterally disposed of.
16.The wife’s own evidence at paragraph [24] is that in over 4 years she has only paid down approximately $10,000 on the mortgage and that she acknowledges that she has not been paying the full amount due [49]. For the whole of this time she has had the exclusive use of the property. That would work out to her paying less than $50/week to reside in the property that is jointly owned. The wife should not be given any adjustment for post separation contributions for this.
17.The wife appears to assert future needs on the basis of a) an inability to work due to a disability and her childcare responsibilities, b) her greater proportion of care of the parties’ child [X], and c) the Husband’s failure to pay child support.
18.The Wife’s evidence as to her income is at paragraph [42] which says, “My only source of income is a Disability Pension in the amount of $677 per week from Centrelink.” And at [66] “I am on a Disability Pension due to suffering from [a medical condition].” Neither of these statements are true. The documents put to the wife showing her Centrelink benefits (both historical and a recent statement produced pursuant to a call – see Tender Bundle No.3 and No.8) show that the wife does not receive a disability pension. She receives a parenting payment, a carer allowance, family tax benefits and some energy and pharmaceutical allowances. This is important as a disability pension implies that someone at least has assessed that a person is not able to work due to a disability or injury. Even if a party has not proven that satisfactorily, the inference is available to the Court on the basis that the pension is being paid that the assertion about an inability to work at that time is at least prima facie correct. No such inference is available in circumstances where in both the parenting and the property proceedings the Wife has asserted she in receipt of such a pension when this is not the case. The Wife’s oral evidence is that she did not know that this was the case. Leaving aside the inherent unbelievability of such an assertion, even if it were true, all it means is that no one has assessed that the wife cannot work due to a disability or injury, and the wife provides absolutely no evidence to support that this is the case, other than to say that she is a diabetic. She provides no evidence of her current state of health, of the impact that it has on her day-to-day functioning (on her own evidence she raises two children, maintains a household and a social life) or any assessment by any qualified person of how her ability to work may be impacted. The Court cannot find nor even infer that the Wife has no capacity to return to work in the future. She is a qualified [tradesperson]. There are other types of work that it is reasonable to suppose that she could do if she wanted to. Her position appears to be that she is not presently working due to her need to care for another man’s child who, by her own choice, she does not receive financial support from, and that she cannot work for health reasons she provides no evidence for, means that there should be an adjustment form her former Husband. That is a nonsense. The Husband does not work either. He IS in receipt of a disability pension and his historical and present mental health issues are well-evidenced in these proceedings.
19.For reasons that are opaque questions were raised as to whether the Husband is actually paying rent (to his landlord [Ms AX]). The bank statements provided pursuant to a call at Tender Bundle No.6 demonstrate that he is.
20.It is the case that the Wife presently has greater care of the parties’ 7-year-old son, [X], pursuant to current Orders of the Court. The Father has been seeking increased time with [X] for 4 years and has been frustrated at every turn by the Wife’s refusal to comply with Court Orders. It is the case that the Husband does not presently pay child support. The Wife’s own evidence is that she sought and obtained an exemption from the Child Support Agency. It is not clear what child support he would be assessed to pay in any event given his income is from a pension and an insurance payment regarding his mental health injury. The Wife’s evidence is that [Mr AS] pays no child support for his child. The Wife seeks none from him and does not intend to do so in the future. She is critical of the Husband in these proceedings for not paying child support at her request but is content for [Mr AS] not to do so. An inference is available that one of the reasons for this might be that he is providing financial assistance in other ways or that they are in a relationship, so child support arrangements do not arise.
21.In circumstances where the Wife’s evidence as to future needs is so poor and demonstrably inaccurate, where the only relevant future needs factor is that she has greater care of the parties’ son, where her evidence is that her father is willing to foot the bill for the mortgage, the payment to legal aid, and the payment to the paternal grandparents, and the significant gap in the evidence in relation to the role [Mr AS] plays in the Wife’s life and circumstances, then it is submitted that there should be no specific adjustment for future needs. However, given that the orders that the Husband seeks are that the proceeds of sale of the property are split equally and that they each otherwise retain what they have, then it is possible on the balance sheet that given the wife has greater savings and more superannuation that she will be receiving more than 50% of the pool and that an adjustment to her is therefore made in any event.
22.The Wife has not paid to the Husband her half share of the fees that were paid to [Dr H] in the parenting proceedings. She acknowledged that she was required to do so. The parties agreed that since there were funds in an account as a result of [J Company] that were in the Husband’s control of a roughly similar amount that he would retain these, and this would discharge the Wife’s obligation to make this payment to him. Orders can be made by consent to this effect.
23.The Wife’s evidence is that she does not have the Husband’s [hobby] collection that he asserts was in the safe at the former matrimonial home. While the Husband was willing to concede the value of those [items] as an asset of his in circumstances where he was intending to have them returned to him, if they are not there, and cannot be returned to him then they are no longer in the pool and the sum of $0 must be allocated to them in the balance sheet.
24.The husband seeks that a number of personal items be returned to him. A list is in evidence. The Wife’s evidence appears to be that he can have the items on the list if they are there. Given the evasive and vague nature of the evidence there is no clarity around what items may ultimately be returned to the Husband, but he nevertheless seeks orders for their return.
25.As a coda, some documents were provided, ostensibly pursuant to the calls for current bank balances for the wife, however these too only went to December 2022. This means that the best evidence available is the Wife’s oral evidence of the current balances of her accounts being about$4,000. The screenshot from MyGov or the ATO showing the Wife’s list of superannuation entitlements was never produced pursuant to the call. The best evidence available is the statement from [Super Fund 1] as at 30 June 2022 produced by the wife pursuant to the call during the proceedings (Tender Bundle No.7).
The Husband’s Evidence
26.The Husband relies on the submissions contained in his Case Outline filed 4 April 2023 in relation to the nature of his contributions. None of these assertions were challenged under cross-examination. Apart from asserting that she too made some non-financial contributions to the properties they owned, upon which nothing turns, none of the assertions made by the Husband in relation to contributions appears to be disputed by the Wife.
Summary
27.To the best of the Applicant’s ability to compile it from the evidence, the Balance Sheet in the matter is as follows:
Description Ownership Applicant’s value Respondent’s value ASSETS 1 City C property Joint $545,000 $545,000 2 Motor Vehicle 3 Husband $4,500 Unknown 3 Motor Vehicle 2 Wife $8,750gifted to her mother 4 Motor Vehicle 5 Wife $8,000Says does not own Motor Vehicle 5 and uses her father’s 5 Wife Business Wife $10,000Says items sold 6 Savings – Husband Husband E$1,000 Unknown 7 Savings – Wife Wife E$4,000 E$4,000 (oral evidence) 8 Hobby collection Husband $22,005but in wife’s possession. Since wife asserts she does not have it then the value is lost and is $0.Wife says she does not have this so it appears to be lost Assets subtotal E$554,500 LIABILITIES 9 Loan associated with City C property Joint E$311,000 E$311,000 10 Loan from husband’s parents Joint $30,000 $30,000 11 Funds owed to Legal Aid by husband (for ICL) Husband $3,000 $3,000 12 Funds owed to Legal Aid by wife (for ICL) Wife $9,000 $9,000 Liabilities subtotal $353,000 $353,000 SUPERANNUATION Name of Fund Type of interest Member Applicant’s value Respondent’s value 13 Super Fund 1 accumulation Wife $13,818 $13,818 (at 30.6.22) 14 Super Fund 2 accumulation Husband $7,351 Unknown Superannuation subtotal $21,169 Unknown 28.On the evidence available the Court simply cannot find that the Wife has the capacity to refinance the property into her sole name without assistance. At its highest the Court has the Wife’s assertions that her father will provide that assistance. In what form, up to what amount, and how this might work in the event of a cash payment being ordered to be made to the Husband all remain unknown. If the Court is not satisfied that the Wife can retain the property and make whatever payment to the husband that is ordered then it must be sold. This is especially so where there are debts that both parties agree must be paid so that caveats can be lifted. If the debts must be paid, and they cannot be paid by either party themselves, payment must be funded from the sale proceeds. The Wife gives evidence that she will simply seek that her father pays her debts but no binding order to that effect can be made, and that does not resolve the issue of where the husband’s portion of the liabilities is to come from. His position is that the only way that the debts get paid is from the sales proceeds – there is no other available pool of money.
29.The Husband seeks that he receives half the proceeds of the former matrimonial home (or half the equity if the Court determines the Wife can retain it). On the evidence available that would mean a payment to him of $117,000 if the wife retains the property (the calculation upon sale is not able to be made given the uncertainties regarding sale price and sales costs). That means that the Wife would need to be able to refinance or pay out the sum of $428,000 if she retains the property. There is no evidence to suggest even with her father’s assistance is possible.
30.The Court would find that the parties made equal but different contributions throughout the relationship, that there should be no adjustment for post separation contributions, and that there should be no, or only a minimal adjustment to the wife for future needs, and that this adjustment is already accommodated in fact in the orders sought by the husband.
Written submissions on behalf of the Respondent
The written submissions of the Respondent Wife were filed a week late and were a total of two pages in length, despite the parties being provided a limit of 8 pages; they were as follows:
1.These are property proceedings between [Mr Marella], the Applicant Husband and [Ms Marella], the Respondent Wife.
2.The wife seeks to maintain the matrimonial property located at [AQ Street, City C] in the state of New South Wales.
3.The parties commenced a relationship on or about late 2008 and married [in] 2012. The parties separated on the 1 November 2018. It is considered a long relationship of approximately 10 years. The parties divorced [in early] 2020.
4.A child was borne of the relationship [in] 2015 and is currently 7 years old.
5.The wife has primary care of the child. At the time of hearing, [X] was not spending any time with his father.
6.The parties purchased the matrimonial property located at [AQ Street, City C] in [in] 2015. Prior to purchasing that hoe as joint tenants, the parties purchased a home in [AT Street] in 2015 for $235, 000. This property was later sold, and at the time of purchase it was purchased in the husband's own name. The wife asserts that after sale, the monies left over from the sales after expenses were paid, were retained by the Husband.
7.At the time of separation, the wife remained in the matrimonial home. She continues to live in the matrimonial home with [X] and her younger son.
8.The wife has continued to service the mortgage repayments. The wife continued to do since 1 November 2019 solely on her own and continues to do so. The wife was able to maintain the family home, whilst in the time since separation the value of the property has increased, and such to the benefit of both parties.
9.The matrimonial property has an agreed value of $545,000. The current mortgage owing on the matrimonial home was approximately
10.It is submitted that it is just and equitable for the wife to have first option for 56 days on retaining the matrimonial property prior to any forced sale.
11.The wife has given evidence that she will obtain monies from her father to buy out the Husband. Noting that she has continued to remain in the house and service the mortgage for almost 5 years, an order to this effect should be made.
12.The wife also gave evidence that the go fund me page monies to the wife can be retained by the Husband for her share of the Expert report in the former parenting proceedings.
13.the husband submitted that he had been paying rent and living with friends and also his parents, and a call on documents was made with no response by the Husband. Hence the wife could not contribute to documents in the tender bundle.
14.The wife submitted that the husband had dissipated assets during the relationship and post separation, and such should be added back into the property pool.
15.A final ADVO was made after a defended hearing in the Local Court protecting the wife and the child from the Husband. Findings were made that the Husband had perpetrated family violence.
16.The child also has special needs, and it is noted that the wife holds sole parental responsibility and in addition to full time care of [X].
17.It is also submitted, although no evidence was tendered that the wife suffers from [a medical condition] and PTSD, and this will impact on her future working capacity. The husband made a concession in his affidavit by stating that he helped care for [X] as a baby as the mother was suffering [a medical condition].
18.The wife is a [tradesperson] but has not worked for some time. She is currently a caregiver for two children.
19.[X] is solely reliant on his mother to provide for his financial needs.
20.Even if the Husband is putting money into an account for [X] as he alleges the Wife has no access to those funds. The husband's evidence in an earlier hearing is that if the wife asks for and proves what she needs the money for, he will pay it to her. It is submitted that this demonstrates coercive and controlling behaviour.
21.The husband has failed in the past to provide financial support to the wife so she can clothe and feed [X] and provide for his significant medical needs. The Husband now states he is on a disability pension, and it appears due to his mental health.
22.The husband does have working capacity, but it is submitted he chooses not to work as he does not feel mentally well to do so. the Husband gave evidence that he is able to work and looking at work opportunities which he says are limited for him.
23.The wife has also made the concession that the loan to the paternal grandparents will be paid back.
24.The wife told the court the alleged [hobby collection] in the safe that the father asserted too are not in the safe. He did not leave them behind. The husband provided no evidence as to this, and the Court does not have the evidence that the Wife has or had the [items] in her capacity.
25.It is submitted that it is just and equitable that the property pool be adjusted with an adjustment in favour of the wife of 70%.
26.It is submitted that it is just and equitable to adjust the property pool in favour of the wife, in light of the above contributions, and needs of the Wife.
Outline of Principle
In Chapman v Chapman, the Full Court said, firstly at [19] – [21] (Strickland and Murphy JJ; Bryant CJ agreeing, at [1] – [9]):[13]
[19] Section 79 demands a consideration, separately, of all of its requirements without conflation. Provided a trial judge has done so, and the reasons demonstrate that this has been done, no error is demonstrated by a failure to follow a particular order in doing so. Further, the breadth and depth of the consideration of the s.79(2) issue, and the extent of an adequate exposition of it in the reasons, will vary from case to case. In that respect, the plurality in Bevan said, at [82], that the separate s.79(2) issue will, “...in many cases ... [be] ... effectively answered in the affirmative by the way the parties present their cases.”
[20] Each of those conclusions conforms entirely with what was said about those issues by the High Court in Stanford v Stanford (2012) 247 CLR 108.
[21] First, it is “...not possible to chart [the] metes and bounds” of the relevant discretion. Just as importantly, it was recognised specifically that the characteristics of individual marriage unions, in so far as they acquire, hold and deal with property, differ. In “many cases”, the union is underpinned by “...stated and unstated assumptions between the parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of the husband and wife during the continuance of their marriage” (Stanford, at [41]). And, in “many cases”, (but, not all) the “...just and equitable requirement is readily satisfied...” by the fact of separation: “[i]t will be just and equitable to make a property settlement order ... because there is not and will not thereafter be the common use of property by the husband and wife” (Stanford at [42]).
[13] Chapman v Chapman (2015) 51 Fam LR 176.
Regarding matters of “weight”, also in Chapman, the Full Court said, at [64]:
“...what is ‘plainly wrong’ will vary in the eyes of different beholders” and also the fact that the “...functions and purposes of the Court ... [involve] ... difficult and evaluative decisions...” such that “...any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions”. (CDJ at [186(2)], per Kirby J).
In AJO & GRO, at [46], subject to the matters outlined from Stanford and Bevan above from Chapman, the regular “four-step” process will be undertaken here.[14] That process begins with (i) the identification and value of the net property of the parties, (ii) assessment of the contributions of the parties under s.79(4), (iii) consideration of the factors under s.75(2), and finally (iv) consideration and determination of what Orders are just and equitable between the parties in all of the circumstances, having regard to all the evidence and in the light of the principles outlined.
[14] AJO & GRO (2005) 33 Fam LR 439.
“Contributions” were a vexed issue in this matter, albeit in a limited number of respects. It is important therefore to note the following from Fields v Smith, where the Full Court said (Bryant CJ and Ainslie-Wallace J; May J agreeing), at [75] and [168] (emphasis added):[15]
[75] … As we have already said, there is no requirement to attribute different percentages to different periods in the relationship. Indeed the Full Court has cautioned against it: see Dickons & Dickons(2012) 50 Fam LR 244, Lovine & Connorand Anor (2012) FLC 93-515 and Bolger & Headon [2014] FamCAFC 27 where the Full Court said at [28], “[d]oing so ... is not consistent with a holistic assessment of the parties’ contributions which is what s.79(4) requires.” It is only if error can be demonstrated in the overall result that the appeal would succeed.
[168] … 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.
[15] Fields v Smith (2015) FLC 93-638; (2016) 53 Fam LR 1.
Because of the vagaries outlined in the troubled and often opaque evidence in this matter, I should note the further comments by the Full Court in Dickons v Dickons regarding the evaluation of “contributions.”[16] First, at [18] – [22], the Full Court said (emphasis added):
[18] Any and all such contributions, whether or not they sound in, or are directly linked to, the property available for distribution, should be considered and assessed together with the nature, form and extent of all other contributions of all types contemplated otherwise by s 79(4).
[19] That is true of assets or income generated within the relationship and it is equally true of assets or income coming from outside of the relationship (for example, as here, in the form of inheritances). In the same way, s 79(4) specifically requires the Court to take into account contributions made to the welfare of the family (and substantively and “...not in any merely token way...”; see, Mallett v Mallett (1984) 156 CLR 605 at 636 per Wilson J) notwithstanding that those contributions may not be, or cannot be seen to be, directly linked to the available property at trial, or any increase or decrease in the value of the property.
[20] Put another way, consistent with authority, the s 79 discretion involves as a necessary requirement that “... trial Judges weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such an assessment into a percentage of the overall property of the parties or provide for a transfer of property in specie in accordance with that assessment.” (In the Marriage of Aleksovski (1996) 20 Fam LR 894 at 903). In Aleksovski, Kay J outlined the well-known “gold bar” analogy and said “[w]hat is important is to somehow give a reasonable value to all of the elements that go to making up the entirety of the marriage relationship” (at 83,443).
[21] Those same principles can be expressed as saying that the requirements of the section are met by approaching the assessment of contributions holistically and by analysing the nature, form, characteristics and origin of the property currently comprising that to which s 79 applies, and, in turn, analysing the nature, form and extent of the contributions (of all types) contemplated by s 79. That task is also undertaken by reference to the nature and form of the particular marriage partnership manifested by the particular circumstances of this particular marriage. Is it, for example, a relationship, as Deane J put it in Mallett at 640-641 “...where the parties have adopted the attitude that their marriage constituted a practical union of both lives and property...” or is it, for example, a union where parties lived very separate domestic and financial lives?
[22] The analysis just referred to might, obviously enough, also involve an examination of when contributions were made and the use made of contributions. But that is quite different to attributing to, or searching for, a necessary causal connection between contributions and the available property as a requirement for a particular contribution having significance in the overall assessment of what is just and equitable.
[16] Dickons v Dickons (2014) 50 Fam LR 244.
Regarding the dangers of attributing “percentages” to specific contributions, the Full Court forcefully noted, at [23] – [26] (emphasis added):
[23] We wish also to refer to the approach of the Federal Magistrate in attributing percentages to differing periods within the relationship, or types of contribution made. There is in our view little to be gained, and much to be said against, approaching the task of assessing contributions by attaching percentages to components of it. (The same, it might be said, applies to attributing a percentage to each of the relevant s 75(2) factors).
[24] There can be little doubt that the classification of contributions by reference to terms such as “initial contributions”, “contributions during the relationship”, and “post-separation contributions”, can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
[25] Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “...giving over-zealous attention to the ascertainment of the parties’ contributions...” (Norbis v Norbis (1986) 161 CLR 513 at 524) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the Court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
[26] The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
As the Full Court noted in Dickons, the issue is less a matter of the “erosion” of initial and perhaps large contributions, and more about questions of “weight”. Likewise, regarding those early contributions being considered as a “springboard” for later financial matters, as set out in the extracts above, again the Full Court in Dickons said that the appropriate course is to look at all contributions in a “holistic” manner for the purposes of determining what Orders are ultimately “just and equitable.”
In accordance with multiple other, earlier authorities, in Chapman, at [39], the Full Court said (emphasis added):
The consideration of the relevant matters referred to in s.75(2) of the Act, pursuant to s.79(4), like the assessment of contributions, is holistic. Also, like the assessment of contributions, it is not an accounting exercise.
Consideration and Disposition
Essentially for reasons outlined earlier, especially because of the Husband’s independently supported evidence, and the poverty and paucity of the Wife’s evidence, the following propositions and findings may be stated relatively summarily.
I accept the parameters of the property pool as set out in the Husband’s Case Outline, as amended in his written submissions, set out above, and for the reasons also set out there. For ease of reference, that table is set out again below:
Description Ownership Applicant’s value Respondent’s value ASSETS 1 City C property Joint $545,000 $545,000 2 Motor Vehicle 3 Husband $4,500 Unknown 3 Motor Vehicle 2 Wife $8,750gifted to her mother 4 Motor Vehicle 5 Wife $8,000Says does not own Motor Vehicle 5 and uses her father’s 5 Wife Business Wife $10,000Says items sold 6 Savings – Husband Husband E$1,000 Unknown 7 Savings – Wife Wife E$4,000 E$4,000 (oral evidence) 8 Hobby collection Husband $22,005but in wife’s possession. Since wife asserts she does not have it then the value is lost and is $0.Wife says she does not have this so it appears to be lost Assets subtotal E$554,500 LIABILITIES 9 Loan associated with City C property Joint E$311,000 E$311,000 10 Loan from husband’s parents Joint $30,000 $30,000 11 Funds owed to Legal Aid by husband (for ICL) Husband $3,000 $3,000 12 Funds owed to Legal Aid by wife (for ICL) Wife $9,000 $9,000 Liabilities subtotal $353,000 $353,000 SUPERANNUATION Name of Fund Type of interest Member Applicant’s value Respondent’s value 13 Super Fund 1 accumulation Wife $13,818 $13,818 (at 30.6.22) 14 Super Fund 2 accumulation Husband $7,351 Unknown Superannuation subtotal $21,169 Unknown
The initial contributions of the parties was, at best, modest with the Husband perhaps providing some extra financial contributions, and given that the Wife provided no evidence of such contributions.
During the relationship, a “conventional” approach was taken whereby, upon X’s birth, the Wife remained a “stay-at-home” Mother, and the Husband was in paid employment. The Wife confirmed this arrangement. Her paid employment as a tradesperson was sporadic and infrequent.
There is a validly executed loan agreement between the parties and the paternal Grandparents for the loan to the parties of $30,000.00. It was acknowledged to be a liability of both parties for payment back to these Grandparents.
In all of the circumstances, in my view an assessment of equal contributions during the relationship should, and will be, made.
Regarding post-separation contributions, the Husband received, on compassionate grounds, access to his superannuation in 2019, of $36,280.00. These funds were used towards his living expenses.
On the other hand, the Wife has lived in the former marital residence, while the Husband has paid rent elsewhere. The Wife has met some of the mortgage repayments, while the Husband has paid the house insurance since separation.
It is not disputed that, since separation, the Mother has had the sole care of X. However, this is in circumstances where she has been antipathetic to the Father spending any time with the child, notwithstanding the Court’s detailed Orders last year. In my view, completely imprudently, she has also rebuffed every offer and attempt by the Husband to provide financial assistance for X.
Overall, in my view, contributions should be properly assessed as being equal.
Regarding “future needs”: (a) both parties are still quite young; (b) it is unlikely that either of them, for slightly different reasons, will be in paid employment any time soon, if at all; (c) both are in receipt of government benefits; the Husband gave detailed evidence (twice) regarding his ongoing medical expenses; and (d) the Wife gave no relevant evidence to support her contention that Mr AS (the Father of her second child) is not in a relationship with her, and equally that he provides her with no financial (or “in kind”) support. Similarly, there was no evidence before the Court from her Father regarding his “offer” of financial assistance to the Wife. Even if that were to materialise, I have grave doubts about how the Husband could be paid out, the mortgage re-financed, the loan to the paternal Grandparents could be paid as well as the moneys owing to Legal Aid NSW repaid, and the maternal Grandfather live off whatever might be left-over. As already noted, everything was so terribly poorly prepared and ill‑considered and ill-conceived, without proper or reliable evidence in support. Added to this were the significant factors of not calling any evidence from Mr AS, or her Father. Such gaps and omissions were fundamental flaws in the [lack of] preparation and conduct of the case. I have noted earlier my grave concerns about the proper preparation of the Wife’s case by her solicitor. In many respects, it almost warranted being referred to the Law Society of NSW. I have barely managed to restrain myself from making such a referral.
Given the extremely modest financial position of both parties, and although the Husband is not opposed to the Wife retaining the former marital residence provided he can be assured of being paid out, in my view, it is impossible for any other course than for the former marital residence to be sold and the net proceeds to be divided equally between the parties.
For the reasons given, in my view, the Orders sought by the Husband are just and equitable.
Absent any Application in 21 days, each party is to pay their own costs.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 5 July 2023
8
0