Nabel and Nabel

[2018] FCCA 884

FEDERAL CIRCUIT COURT OF AUSTRALIA

NABEL & NABEL [2018] FCCA 884

Catchwords:
FAMILY LAW – Property settlement – marital relationship – family violence – wastage on gambling – failure to disclose.

Legislation:
Family Law Act 1975, ss.75(2), 79(2), 79(4), 106A, 117

Cases cited:
Bevan v Bevan (2013) 279 FLR; (2013) 49 Fam LR 387; [2013] FamCAFC 116
In the marriage of Weir (1992) 110 FLR 403; (1992) 16 Fam LR 154; (1993) FLC 92-338
Kennon v Kennon (1997) 139 FLR 118; (1997) 22 Fam LR 1; (1997) FLC 92-757
Stanford v Stanford (2012) 247 CLR 108; (2012) 87 ALJR 74; (2012) 47 Fam LR 481; (2012) FLC 93-518; (2012) 293 ALR 70; [2012] HCA 52

Applicant: MS NABEL

Respondent: MR NABEL

File Number: MLC 3135 of 2015

Judgment of: Judge Riley

Hearing date: 23 February 2018

Date of last submission: 23 February 2018

Delivered at: Melbourne

Delivered on: 13 April 2018

REPRESENTATION

Counsel for the applicant: Ms McCreadie

Solicitors for the applicant: Lampe Family Lawyers

Advocate for the respondent: In person

Solicitors for the respondent: None

ORDERS

1. The husband pay to the wife the sum of $269,569 (“the payment”) within 45 days of the date of these orders.

2. Contemporaneously with the payment:

   (a)the wife do all such acts and things and sign all such documents as may be required to transfer to the husband at the expense of the husband all of her right, title and interest in the property situate at and known as Property A being the whole of the land more particularly described in certificate of title volume (omitted) folio (omitted) (“the property”); and

   (b)the husband indemnify the wife against all liabilities pursuant to all apportionable rates, taxes and outgoings of or with respect to the property of whatsoever nature and kind.

3. Pending the payment:

   (a)the husband have the sole right to occupy the property and during such right of occupation the husband pay all rates and taxes and like apportionable outgoings in respect of the property as they fall due;

   (b)the parties hold their respective interests in the property upon trust pursuant to these orders; and

   (c)neither party encumber the property without the consent in writing of the other party.

4. In the event that the whole of the payment has not been paid to the wife within 45 days from the date of these orders, then:

   (a)within 60 days from the date of these orders:

   (i)the husband vacate property; and

   (ii)the husband sign all documents and do all things necessary to transfer the property to the wife;

   (b)the wife then hold the property on trust for sale (“the sale”);

   (c)after 60 days from the date of these orders or from the date he vacates the property, whichever is earlier, and pending the settlement of the sale, the husband and his servants and agents be restrained from being within 500 metres of the property;

   (d)as soon as possible after 60 days from the date of these orders, the wife arrange for the property to be sold, after effecting reasonable repairs and rubbish removal as required;

   (e)upon completion of the sale, the proceeds of the sale be applied:

   (i)firstly, to pay all costs, commissions and expenses of the trust, transfer and the sale;

   (ii)secondly, to discharge any encumbrances affecting the property; and

   (iii)thirdly, of the balance then remaining, to pay:

   A.40% to the husband; and

   B.60% to the wife;

   (f)prior to any distribution being made to the husband, the following amounts are to be deducted from the husband’s 40% share of the proceeds of the sale and are to be paid at the settlement of the sale:

   (i)to the wife, $440, being reimbursement of the husband’s half share of the costs of the joint valuation of the former matrimonial home;

   (ii)to the wife, $5,129 for the costs of the appearance thrown away on 31 May 3017, the costs thrown away of the conciliation conference and the costs thrown away of the appearance on 15 September 2017;

   (iii)to the appropriate authority, any outstanding council and water rates; and

   (iv)to the wife, the cost of any repairs or rubbish removal reasonably incurred by the wife in relation to the sale.

5. In the event that the husband fails to give the wife the payment within 45 days from the date of these orders and fails to provide vacant possession of the property pursuant to order 4(a)(i) herein, the wife may seek a warrant of possession upon the filing of an affidavit sworn or affirmed by herself or her solicitor stating that the husband has failed to vacate the property.

6. Both parties do all acts and things reasonably required by the other including the signing or execution of all necessary documents to give effect to the provisions of these orders within 14 days of being requested to do so.

7. If either party refuses or neglects to sign, execute and return a document within 14 days of a written request to do so then:

   (a)a registrar of the Federal Circuit Court is hereby appointed under s.106A of the Family Law Act 1975 to sign or execute any such  document on behalf of that party upon:

   (i)the lodgement of such document; and

   (ii)the filing of an affidavit sworn or affirmed by the requesting party or a solicitor on behalf of the requesting party as to the said neglect or refusal of the other party, which affidavit shall be sufficient evidence of the neglect or refusal; and

   (b)the defaulting party pay the other party’s taxed costs of and incidental to such request and production of documents to the registrar.

8. Pending the payment, and, if the payment is not made within 45 days from the date of these orders, pending the sale, the husband and his servants and agents be restrained from:

   (a)selling, disposing, transferring, assigning, charging, encumbering, or otherwise dealing with or attempting to deal in any way whatsoever with the property or any part thereof;

   (b)removing from the property any fixtures and fittings;

   (c)doing, causing, enabling, authorising or facilitating any act or thing has or may have the effect of:

   (i)demolishing, razing, dismantling, harming, breaking, defacing,  polluting or damaging the property (or any part thereof)  in any way whatsoever;

   (ii)diminishing the utility or  aesthetic  appeal  of  the  property  (or any part thereof)  in any way whatsoever;

   (iii)diminishing the value of the property (or any part thereof); or

   (iv)terminating  any tenancy agreement in respect of the property

   without the written  consent of the Lampe Family Lawyers having first been obtained, such written consent only to be provided for the purpose of implementing these orders.

9. Unless otherwise specified in these orders and save for the purposes 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 superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the property being deemed to be in the possession of the husband);

   (b)insurance policies remain the sole property of the owner/beneficiary named therein;

   (c)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; and

   (d)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

NOTATION

Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3135 of 2015

MS NABEL

Applicant

And

MR NABEL

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for property adjustment under s.79 of the Family Law Act 1975 (“the Act”).  The proceeding was commenced by the wife on 6 April 2017. 

2. The wife was born on (omitted) 1960 in (country omitted). She is 57 years old and has not worked outside the home since 1990, when her first child was born.  The husband was born on (omitted) 1954, also in (country omitted). He is 63 years old.  He is now in receipt of WorkCover payments, but previously worked as a (occupation omitted) and had certain business interests.

3. The parties were married in (omitted) 1989.  Final separation occurred in October 2006, with the parties living under the one roof until October 2011. The relationship lasted about 17 years.  The parties were divorced on 4 June 2015. 

4. The parties have two children together, Mr S, who is now 27 years old, and Mr N, who is now 18 years old.  Mr N currently lives with the wife, on whom he is financially dependent.

Material relied upon

1. The wife relied on:

   a)her further, further amended initiating application filed on 3 December 2017,

   b)the affidavits affirmed by her on:

   i)4 April 2017; and

   ii)17 November 2017;

   c)her financial statement filed on 6 April 2017;

   d)her outline of case filed on 6 December 2017;

   e)an affidavit affirmed by Mr T on 5 December 2017 which annexed a valuation of the former matrimonial home located at Property A;

   f)an affidavit sworn or affirmed by Dr C on 31 January 2018 which annexed a medical report regarding the wife; and

   g)an affidavit sworn by the wife’s solicitor, Constantina Demetriou, on 15 February 2018 relating to the costs of the conciliation conference.

2. The husband relied on his response, financial statement and affidavit filed on 6 October 2017.

3. The wife and husband were cross examined. Dr C was cross-examined by telephone. Mr T and Constantina Demetriou were not cross examined.

History of the proceedings

1. This matter was first heard in the duty list on 31 May 2017. On that day, the husband did not attend court, although he had been properly served. Orders were made adjourning the matter to 19 July 2017 for interim hearing and requiring the husband to attend court personally on 19 July 2017.

2. On 19 July 2017, the husband did attend court. He was unrepresented on that day and throughout the proceedings. The wife was represented on 19 July 2017 by Mr Hoult of Counsel. It became apparent that the wife’s application for property settlement was out of time by nine months. Orders were made:

   a)by consent:

   i)extending the time for the wife to file an application for property settlement to 6 April 2017;

   ii)adjourning the matter for final hearing;

   iii)requiring the husband to file and serve a response, an affidavit in support and a financial statement by 9 August 2017; and

   iv)requiring the husband to provide discovery by 9 August 2017; and

   b)by the court, for the parties to attend a conciliation conference on 4 September 2017.

3. The husband was accompanied at the conciliation conference, at the subsequent directions hearing, and at the final hearing by Mr E, who is the husband’s mental health support worker from (omitted). However, the conciliation conference could not proceed as the husband had not filed any material. 

4. As a result, the matter was listed for directions on 15 September 2017. The court considered whether the husband needed to have a litigation guardian appointed, but such an appointment was ultimately deemed to be unnecessary. The costs of the conciliation conference were reserved.

5. The husband eventually filed a response, an affidavit in support and a financial statement on 6 October 2017. 

6. The matter proceeded as a final hearing on 23 February 2018, with the husband unrepresented, and the wife represented by Ms McCreadie of Counsel.

Credibility

1. Overall, I found the wife to be a more credible witness than the husband.  The wife gave her oral evidence in a straightforward and considered manner.  The husband was sometimes argumentative and sometimes charming, but, generally, did not inspire confidence in the truthfulness of his evidence.

2. In addition, the husband failed to disclose documents relating to his financial affairs.  For example, he failed to disclose his bank statements and payslips.  The wife was obliged to subpoena records at her own expense from the (omitted) bank and from the husband’s superannuation funds.  The subpoena to the (omitted) bank disclosed numerous deposits into the husband’s main account from account number (omitted).  The husband did not provide any information about that account and the wife was unable to find any.

3. The husband also failed to disclose that he has a person living in his house who pays him $150 per week, although he admitted it in cross-examination.  The $150 per week may be rent or a contribution to household expenses, but, either way, it is a significant non-disclosure in the context of this case. 

4. It is well established that, where a party has failed to disclose their financial information, the court should not be unduly cautious in making findings in favour of the other party.  In In the marriage of Weir (1992) 110 FLR 403; (1992) 16 Fam LR 154; (1993) FLC 92-338, the Full Court of the Family Court said at pages 407-8:

   This Court has pointed out in a line of cases leading up to the recent decision of the Full Court in In Marriage of Black (1992) 106 FLR 154, that it is the duty of a party involved in property proceedings in this jurisdiction to make a full disclosure of their financial affairs. See also In Marriage of Giunti [1986] FLC 75, 548 and In Marriage of Mezzacappa (1987) 90 FLR 350. It is clear enough from his Honour’s findings in the present case that the husband had not done so and had in fact pocketed the proceeds of a substantial number of cash sales. It is obvious that in most cases of this nature it is difficult enough for the other party to establish that fact let alone establish the quantum of what has been taken.

   It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour’s findings in this case, then the court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.

5. The husband was unrepresented and he has some mental health difficulties.  However, I consider that his failure to disclose financial information cannot be adequately explained by those circumstances. 

6. I also note that, on the husband’s own admission, he spent eight months in prison in (country omitted) for attempting to bribe a Customs officer so that he could take a larger quantity of alcohol out of (country omitted) and bring it into Australia than was legally permitted.  The husband tried to minimise this criminal offence by telling the court that Customs officers in (country omitted) are very particular about that sort of thing, namely, bribery of government officials with a view to smuggling alcohol. 

7. However, it seems to me that this offence shows that the husband, on at least one occasion, was grossly dishonest.  Combined with the other evidence in the present case, I conclude that the husband is substantially dishonest in financial and other matters, and that, in general, the wife’s evidence is to be preferred to the husband’s where there is a difference.

The legislation

1. Section 79 of the Act gives the court power to alter the interests of the parties to a marriage in the property of the parties to that marriage. Sub-section 79(2) of the Act provides that:

   The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

2. Section 79(4) of the Act sets out the matters the court must take into account when considering what orders, if any, should be made for the alteration of the interests of the parties in property. Those matters are:

   (a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

   (b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

   (c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and

   (d)the effect of any proposed order upon the earning capacity of either party to the marriage; and

   (e)the matters referred to in subsection 75(2) so far as they are relevant; and

   (f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and

   (g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

3. The matters to be taken into account under s.75(2) of the Act are as follows:

   (a)the age and state of health of each of the parties; and

   (b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and

   (c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and

   (d)commitments of each of the parties that are necessary to enable the party to support:  

   (i)himself or herself; and

   (ii)a child or another person that the party has a duty to maintain; and

   (e)the responsibilities of either party to support any other person; and

   (f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

   (i)any law of the Commonwealth, of a State or Territory or of another country; or

   (ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

   and the rate of any such pension, allowance or benefit being paid to either party; and

   (g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and

   (h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and

   (ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and

   (j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and

   (k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

   (l)the need to protect a party who wishes to continue that party’s role as a parent; and

   (m)if either party is cohabiting with another person — the financial circumstances relating to the cohabitation; and

   (n)the terms of any order made or proposed to be made under section 79 in relation to:

   (i) the property of the parties; or

   (ii)vested bankruptcy property in relation to a bankrupt party; and

   (naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:

   (i)a party to the marriage; or

   (ii)a person who is a party to a de facto relationship with a party to the marriage; or

   (iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

   (iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

   (na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

   (o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

   (p)the terms of any financial agreement that is binding on the parties to the marriage; and

   (q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

The approach to applications under s.79

1. In Stanford v Stanford (2012) 247 CLR 108; (2012) 87 ALJR 74; (2012) 47 Fam LR 481; (2012) FLC 93-518; (2012) 293 ALR 70; [2012] HCA 52, the High Court explained the proper approach to an application under s.79 of the Act as follows:

   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. (emphasis added)

   38.Secondly, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth, Dixon CJ observed that a power to make such order with respect to property and costs “as [the judge] thinks fit”, in any question between husband and wife as to the title to or possession of property, is a power which “rests upon the law and not upon judicial discretion”. … (footnotes omitted)

   39.Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is “just and equitable” to make the order is not to be answered by assuming that the parties’ rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that “[c]ommunity of ownership arising from marriage has no place in the common law”. Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be “decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses”. The question presented by s 79 is whether those rights and interests should be altered. (emphasis added)(footnotes omitted)

   40.Thirdly, 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. (emphasis added)(footnotes omitted)

   …

   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. What order, if any, should then be made is determined by applying s 79(4). (emphasis added)(footnotes omitted)

2. The High Court emphasised that the just and equitable requirement of s.79(2) of the Act is not necessarily satisfied merely by a consideration of the contributions of the parties as described in s.79(4) of the Act. However, in the usual case before this court, where the parties have separated, the High Court acknowledged at [42] that the just and equitable requirement would be readily satisfied.

3. Stanford requires the following matters to be determined in applications brought under s.79 of the Act:

   a)whether the parties have separated;

   b)the assets and liabilities of each party;

   c)the contributions of each party;

   d)the future needs of each party;

   e)bearing in mind all of the foregoing matters, whether it is just and equitable to make any orders altering the interests of the parties in their property; and

   f)what orders, if any, are just and equitable in all the circumstances of the case.

4. Stanford does not require these matters to be addressed in any particular order. In most cases, it would seem rational to consider them in the order set out above. It is not possible to determine whether it is just and equitable to make an order altering the parties’ interests in their property without the other matters mentioned above having been previously determined. That seems to be clear from the opening words of s.79(4) of the Act, which are that:

   In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account [the various matters set out in s.79(4)] … .

5. The approach outlined above is consistent with the decision of the Full Court of the Family Court in Bevan v Bevan (2013) 279 FLR 1;

   
   

   (2013) 49 Fam LR 387; [2013] FamCAFC 116. I note that in that case, the Full Court said at [89]:

   In our view, it will be less likely that the separate issues arising under s 79(2) and (4) will be conflated if judges refrain from evaluating contributions and other relevant factors in percentage or monetary terms until they have first determined that it would be just and equitable to make an order.

Whether the parties have separated and, if so, when

1. The parties agreed that they had separated. However, there was an issue as to the date of separation. The wife said in her affidavits that final separation was in October 2011.  However, in her oral evidence[1] she said that:

   a)they separated in approximately 2003 until 2005;

   b)they subsequently resumed their relationship;

   c)they separated finally in 2006; and

   d)they lived under the same roof from 2006 until she left the former matrimonial home in 2011 after the husband assaulted her.

   [1]     Tr. p.34-35

2. The husband said that they separated finally in 2003 but lived together under the one roof until 2011. He disputed that the parties lived together as husband and wife from 2005 until 2006.

3. I found the wife to be more credible on the question of the date of separation and accept her evidence on this issue.

The assets and liabilities

1. Counsel for the wife attempted to provide to the court a written summary of what the parties agreed and disagreed in relation to their assets, liabilities, contributions and future needs.  However, the husband’s position was not clear in relation to many of those matters.

2. The parties agreed that their only joint asset was the former matrimonial home at Property A (“the property”).  There was an expert, sworn valuation in respect of that property giving it a value of $440,000.  The husband suggested, at one point that the property was worth $500,000, but later seemed to accept that it was worth $440,000.  In any event, there was no challenge to the value being $440,000, so I accept the expert’s evidence on that point.

3. The parties agreed that they had no joint liabilities at the time of trial.  More particularly, they accepted that the property is unencumbered.

4. The parties agreed that the wife owned a Mazda MV at the time of trial.  She claimed that it was worth $4,000.  The husband did not dispute that figure, so I accept that claim.

5. The husband claimed that the wife had $6,500 worth of jewellery that he had given her.  However, there was no sworn, expert evidence as to the value of the jewellery.  The wife conceded in paragraph 16 of her affidavit affirmed on 17 November 2017 that her jewellery was worth $5,000.  In the absence of expert evidence on the point, I consider that it is appropriate to accept that the figure conceded by the wife is the value of her jewellery.

6. The parties both have household effects but there was no expert evidence about their value and no agreement.  I proceed on the basis that the parties’ household effects have no market value.

7. The wife said in her financial statement filed on 6 April 2017 that she had a credit card debt of $10,800.  However, she did not claim to have such a debt in the summary of assets and liabilities her counsel provided to the court at trial.  Therefore, I assume that alleged debt was an error in the financial statement.

8. Otherwise, there was no suggestion that the wife had any superannuation or any other individual assets or liabilities at the time of trial.

9. The parties agreed that the husband at the time of trial owned a Ford (omitted) worth $200, and had superannuation worth $1,900.

10. The husband said in his financial statement that his individual liabilities were as follows: 

    a)council rates: approximately $14,000;

    b)school fees: $17,000;

    c)utilities: $3,800;

    d)solar panels: $5,000; and

    e)credit card: $5,000.

11. That is a total of $44,800. The husband said at the hearing from the bar table that the school fees were actually $18,000[2]. The wife did not formally agree with the husband’s figures for his liabilities, but nor did she challenge them.  In these circumstances, I accept the husband’s evidence on these points.  That excludes the extra $1,000 for school fees because there was no evidence of that but merely an assertion from the bar table.

    [2]     Tr. p.116, l.24

12. The value of the parties’ total joint assets is $440,000.

13. The value of the wife’s total individual assets plus superannuation less liabilities is $9,000.

14. The value of the husband’s total individual assets plus superannuation less liabilities is -$42,700.

15. The combined total value of the parties’ assets plus superannuation less liabilities is $406,300. 

Contributions

a.         Initial contributions

1. It was not disputed that the parties had no contributions of significance at the commencement of their relationship in 1989.

b.         Contributions during the marriage

1. The husband was engaged in full time employment throughout the relationship, which ended in 2006, although the parties remained under the one roof until 2011.

2. The husband alleged that the wife assisted with his business, doing the accounting.  The wife denied that, saying that the husband had an outside accountant, and at most she may have sent a few invoices.  I found the wife to be more credible on this issue and accept her evidence that she had minimal involvement in the financial aspects of the husband’s business.

3. The parties jointly bought the former matrimonial home in 1996.  It was funded substantially with a loan from a bank.  It was not disputed that the deposit and the mortgage repayments were provided from the husband’s earnings, as were the family’s other expenses.

4. The wife claimed that she was almost solely responsible for the household tasks and parenting.  She said that the husband occasionally washed the dishes, vacuumed perhaps once a month and occasionally took the children to school after he was injured in 2007, which was after separation. The husband claimed that he contributed substantially as a parent and homemaker as well.  In view of the husband’s claim that he worked 12 hours a day, seven days a week, during the relationship, I do not accept that he contributed significantly as a homemaker and parent during the relationship.  It is not plausible that he could have done so.

5. The wife claimed that the husband commenced gambling on poker machines in 1996, spending up to $1,000 per month, except on one occasion in 2005 when he spent a $15,000 bonus from his work on gambling in one week. 

6. The husband conceded that he began gambling in 1997[3].  However, he said, from the bar table, that he would gamble $10, $20 or $30 once per month and $200 on the Melbourne Cup.  He said that, when he got a WorkCover payout in 2012, he spent $40,000 or $50,000 on poker machines or maybe more.  That was after separation.  He did not refer to his gambling in his affidavit, and, more particularly, did not deny it.

   [3]     Tr. p.75, l.39

7. There was no documentary evidence, such as bank statements, showing how much the husband gambled during the relationship.  However, as mentioned above, I found the wife to be a generally credible witness and the husband less so.  Given that, and in view of the fact that the husband conceded that he started gambling in 1996 and the fact that he conceded spending $40,000 to $50,000 on the pokies in 2012, I accept, on the balance of probabilities, that the husband gambled about $1,000 per month during the relationship, plus the $15,000 bonus he lost in one week.

8. Losing $1,000 per month for the ten years from 1996 to separation in 2006 amounts to $120,000. Adding the $15,000 bonus to that amount makes $135,000 lost to gambling during the relationship.

9. The husband’s present WorkCover payments are $1,100 per week.  I assume that his normal weekly pay would have been about $1,375 (as $1,100 is 80% of $1,375). That works out to about $5,500 per month. Consequently, I accept that the husband spent about 20% of his earnings on gambling during the relationship.

10. That money could have been better spent giving the family a more comfortable existence. The money spent on gambling amounts to wastage.

11. The wife alleged that the husband also spent a lot of money on alcohol during the relationship.  The husband did not concede that he drank excessively during the relationship.  He did not refer to his drinking during the relationship in his affidavit and did not deny it.  However, from the bar table, he said that, after he got a WorkCover payout in 2012, which was after separation:

    Then I start drinking very heavy.  … I hit – I drink very bad. 

    … I hit the drink.  I was drinking and smoking like anything. ...  And that time when I drink I get really drunk, I go put the money in the poker machine, but I didn’t realise – right – how much I’m putting there.  Then next morning I wake up, I start drinking again.  When the night comes, my mind say go there.

    …

    [I spent $40,000 to $50,000 on poker machines] Maybe more.  I didn’t count.  Maybe more.  But I spend that money not in the only gambling, but drinking, smoking very heavy.  And I used to eat a lot of food in the restaurant because I can’t cook.[4]

    [4]     Tr. p.76-78

12. Under cross-examination, the husband said that, during the relationship, he would drink very little, which he defined to be six stubbies on the weekend.

13. Six stubbies in a weekend is not very little, by most standards.  It works out to nine standard drinks.  Even spread over two days of the weekend, it is a fair amount of alcohol.

14. In any event, I found the husband’s evidence on his drinking habits during the relationship to be unpersuasive.  I consider that, during the relationship, the husband drank heavily, as claimed by the wife, and a lot more than six stubbies on the weekend.

15. The wife also alleged that the husband was violent during the relationship, and that his violence made her contributions more onerous, in the Kennon[5] sense.

    [5]     Kennon v Kennon (1997) 139 FLR 118; (1997) 22 Fam LR 1; (1997) FLC 92-757

16. The wife said that the husband was physically violent towards her by pushing and shoving her on an occasion in about 2004 while they were living in (omitted).  The wife attended the police station, and then she stayed in a women’s refuge for one month. The wife said that she returned to the home to look after the children, but told the husband that they would live separately under the one roof, which they did until about 2005.

17. The wife also said that the husband assaulted her in October 2011.  On that occasion, the wife said that the husband pushed her out of her bed, kicked her, smashed her telephone, threatened to kill her and hit her.  The wife said that the husband repeatedly said he would get a gun and kill Mr N and then the wife.  She called the police, and they obtained an intervention order on the wife’s behalf.   Following that incident, the wife moved out of the family home.  At that time, the balance of the mortgage on the property was about $60,000.

18. Otherwise, the wife’s allegations about the husband’s violence were not particularised.  She said that the husband was prone to violence and the family would hardly see him, but when they did, he would often mistreat them. 

19. The incident in October 2011 was after final separation.  As such, it cannot be said to have made the wife’s contributions during the relationship more onerous.  The 2004 incident was during the course of the relationship, even though it was at around the time when the parties were temporarily separated. 

20. Moreover, I accept the wife’s evidence about the husband’s general violence, even though it was not particularised.  It seems to me to be consistent with the husband’s controlling behaviour.  For example, the wife, in her affidavit evidence, said that the husband threatened her when she indicated that she wanted a financial settlement.  I accept that evidence. 

21. I also note that the husband’s conduct of this proceeding has been controlling, in that he did not attend the first court date, he attended the conciliation conference but it was not able to proceed as he had not filed material, and he did not file material until months after the ordered date.  Also, his demeanour in the witness box was controlling.  He did not answer questions in a straightforward manner but argued and tried to dominate the proceedings.

22. I accept that the husband’s violence and the ever-present threat of violence would have made the wife’s contributions more onerous, in the Kennon sense. Having the threat of violence hanging over one’s head every day in one’s own home would have made everything more onerous.

23. The husband made a number of claims about his contributions during the relationship.  He said that he assisted his mother-in-law to come to Australia by paying for her airfares and expenses while she was here in 1989.  The wife conceded this, except that she said it happened in 1990, when Mr S was born.  She said that her mother came here for six months to assist her with the new baby. 

24. I accept that the husband did make the financial contribution that he claimed in relation to his mother-in-law.  However, that was more than offset by the contribution the mother-in-law made by caring for the wife and Mr S when he was a newborn.

25. The husband said that he paid for his wife’s sister to come to Australia for six months in 1992, and again in 1996, paid $5,000 for her wedding, paid $800 for her visa application and paid for her upkeep when she lived with them for a further eight months.  The wife agreed that the husband paid for her sister’s airfares in 1992 and her sister’s wedding, although she said it only cost $3,000.  However, the wife said that her sister repaid the money.  The wife said that the husband did not pay for her sister’s visa application.   

26. The wife did not say anything about her sister’s trip in 1996 or her staying with the family for eight months.  In the absence of a denial, I accept the husband’s evidence about those matters.  Otherwise, I accept the wife’s evidence about the matters relating to her sister.  All in all, I accept that the husband did make a contribution for the benefit of the wife in relation to her sister, although that contribution was not quantified.

1. The husband also said that, in 2002, he paid for the wife’s mother and brother to come to Australia, at a cost of $1,700, and that he paid for the visas for both of them.  He said that the wife’s mother stayed with them for three to four months and for eight months.

2. The wife said this trip occurred in 1999, not 2002.  She said her mother and brother paid for their own airfares and the husband did not pay for their visas.  She agreed that her mother stayed with the family for six months, and said that it was so that she could help the wife following the birth of Mr N. 

3. I accept the wife’s evidence on these matters.  The costs associated with the wife’s mother staying in the family home were more than offset by the contribution the wife’s mother made in looking after the wife and Mr N.

4. The husband said that, in 1999, he started a business in (country omitted) called (business omitted).  He said that he lost $18,000 to the wife’s brother, who he said was the business manager.  The wife denied that her brother was the business manager and said that it was the husband’s brother who managed the business for a period.  She said that she knew the husband had a business in (country omitted) but did not know the financial details.

5. The husband appears to have implied that the loss of $18,000 should go on the wife’s side of the ledger.  However, there is too little evidence for the court to form any conclusions about the reasons for the loss of the $18,000.  For example, the business venture may have been unsound from its inception. In any event, on the evidence provided, I do not see how the wife can be blamed for this business failure, even if her brother was the manager.  Nor can I form the view that the $18,000 should be characterised as wastage on the husband’s part.  There is simply too little evidence before the court for any conclusion to be drawn on this issue.

6. The husband said that, in 2006, he borrowed $50,000 to buy a (machine omitted), which cost $30,000 and which he sent to (country omitted).  He said that he earned $10,000 using this machine in (country omitted), but that was not enough to pay for the maintenance on the machine.  He said that, at about this time, he spent $1,200 on gold jewellery which he gave to the wife. The husband said that, throughout the relationship, he spent about $6,500 on jewellery for the wife.  The husband said that, in 2006, he and the wife had $20,000 in a bank account which the wife spent in four months.

7. The wife said that the husband borrowed $50,000 using the family home as collateral, paid $30,000 for the (omitted) machine and lost the remaining $20,000 by gambling. The wife denied that the parties had $20,000 in the bank which she spent in four months. The wife conceded that the husband did buy her some jewellery but said it would not have cost $6,500.  Elsewhere, the wife accepted that the jewellery was worth $5,000. The wife said that, as far as she knows, the machine is still in (country omitted).

8. I accept that the husband spent about $5,000 on jewellery that he gave to the wife.  I accept that the wife did not spend $20,000 in four months.   I consider that the husband spent $15,000, being the balance of the $50,000, after the cost of the (omitted) machine and the cost of the jewellery, on gambling.  This amounts to wastage.

9. The wife did not claim that the (omitted) machine had any particular value or that it should be included in the asset pool.  As there is no evidence about the value of the machine, I disregard it.  There is insufficient information before the court to conclude that the husband’s purchase of the (omitted) machine amounted to wastage.  It is possible that it was a sound business idea that did not work out for reasons beyond the husband’s control.

c.         Contributions post separation

1. Final separation occurred in 2006, although the wife did not leave the former matrimonial home until October 2011 when the husband assaulted her.  The husband continued to live in the former matrimonial home after the wife left in 2011.  The wife has rented premises since then.

2. The wife said that she began to receive a disability pension after hurting her shoulder in a car accident in 2009.  She said that she contributed that money to the care of the family.  It seems probable that the husband supported the wife between 2006 and 2009, when the parties were living separately under the one roof.

3. The husband had a workplace accident in 2007.  Following his accident, the husband was on light duties for two years, and then on Centrelink benefits and then began to receive WorkCover payments, including various lump sums.  He will remain on WorkCover until he qualifies for the aged pension.

4. The parties’ younger son, Mr N, remained with his father in the former matrimonial home for the first six months after the wife moved out in October 2011.  However, Mr N then moved in with the wife and has remained living with her since then. He is now 18 years old and has finished school.  However, he is not studying or working.  The wife submitted that she substantially supports Mr N which is causing her financial strain.  I accept that evidence.

5. The wife claimed that the husband dissipated the property pool through his gambling and alcohol abuse.  The husband conceded that he drank heavily after separation and also that he lost $40,000 to $50,000 gambling  after separation. 

6. The wife said that the husband received a payment of $29,967 on 10 February 2014 from (omitted), which I understand to be the husband’s WorkCover insurer, and that over the next two weeks he spent hundreds of dollars a day at various poker machine establishments.

7. I consider that the husband has spent at least $50,000 post separation on gambling and alcohol.  The husband said it was his money, so he could do what he liked with it.  However, where the asset pool has been diminished post separation through such conduct, the court can take that fact into account.

8. The wife alleged that the husband had allowed the former matrimonial home to fall into disrepair, thereby reducing its value.  However, the sworn valuation indicated that the house was in average condition and needed only minor repairs and redecorating.  That evidence was unchallenged and I accept it.

9. The wife also said that the husband had allowed rubbish to accumulate at the house.  She said there were four car bodies in the backyard that would need to be removed prior to sale.  The husband said in cross examination that there were only two, and that he could get a permit to drive them away in five minutes.  He conceded that the house had 20 years’ worth of his possessions in it but said that he could clean it up quickly.  I did not find the husband’s evidence persuasive on this issue.  If a sale is required, I do not consider that the husband could be trusted to clean up the property sufficiently for it to achieve a reasonable sale price. If a sale is required, the wife will have to be given the responsibility for preparing the property for sale.

10. The wife claimed that the husband had failed to pay rates and outgoings associated with the former matrimonial home, thereby diminishing the asset pool.  It is clear from the summary of assets and liabilities above that the husband owes $14,000 for council rates.  I accept that the husband’s failure to pay the council rates on time has diminished the asset pool.  Although the husband has had limited income at times, he has also been in receipt of substantial lump sums.

11. The wife said, without challenge, in her affidavit affirmed on 17 November 2017, that the husband’s bank records showed that he had received the following payments:

    a)on 12 December 2012 from (omitted) Workers Comp (“(omitted)”) the sum of $118,954;

    b)on 11 February 2013 from (omitted) Workers Comp the sum of $13,508;

    c)on 17 April 2013 from account number (omitted) the sum of $42,716;

    d)on 26 April 2013 from (omitted) Superannuation the sum of $62,674;

    e)on 8 November 2013 from (omitted) the sum of $2,275;

    f)on 2 December 2013 from account number (omitted) the sum of $10,000;

    g)on 16 December 2013 as credit interest from account number (omitted) the sum of $2,323;

    h)on 8 January 2014 from account number (omitted) the sum of $10,000;

    i)on 15 January 2014 from (omitted) the sum of $13,915;

    j)on 6 February 2014 from account number (omitted) the sum of $5,000;

    k)on 10 February 2014 from (omitted) the sum of $29,967;

    l)on 6 May 2014 from account number (omitted) the sum of $1,000;

    m)on 19 May 2014 from account number (omitted) the sum of $1,000;

    n)on 27 May 2014 from account number (omitted) the sum of $3,500;

    o)on 31 July 2014 from account number (omitted) the sum of $1,953;

    p)on 25 September 2014 from account number (omitted) the sum of $1,970; and

    q)on 21 November 2014 from account number (omitted) the sum of $2,000.

12. The wife said that the total of those sums was $280,039. In fact, the total is $322,755.

13. In reaching a total of $280,039, it seems to me that the wife has double counted.  She expressed the view that the husband had a bank account in respect of which she was unable to obtain statements, being account number (omitted).  She said that he had transferred some of his lump sum payments into that account and then partially transferred them back to his other known accounts.  That means that the payments from account number (omitted) have been double counted. They add up to $81,462 and should be excluded from the total.  That leaves lump sum payments of $241,293.

14. It was common ground that the husband was imprisoned in (country omitted) for eight months in 2013 for attempting to bribe a Customs officer so that the husband could take large amounts of alcohol out of (country omitted) and into Australia.  It was also common ground that the husband gave his older son, Mr S, power of attorney while he was in prison.

15. The husband said in cross examination, when the relevant document was read to him, that, on 24 April 2013, he withdrew $62,674 from his (omitted) superannuation fund on hardship grounds. However, he later acknowledged that he had not suffered hardship in 2013 as he had received a payment of $118,000 in 2012 from WorkCover.  The husband initially said that the court would have to ask Mr S what had happened to the (omitted) funds, but then he said that he used the money to discharge the mortgage on the former matrimonial home. 

16. However, in his affidavit, the husband said that he had received a WorkCover payment for unpaid wages of $118,000 in 2012.  He said, in his affidavit, that he used $36,000 of those funds to totally pay off the mortgage on the former matrimonial home.  Accepting that as true, the husband could not have used the $62,674 from (omitted) for the same purpose. 

17. On the other hand, the wife said in her affidavit that the husband paid out the mortgage on the former matrimonial home on 7 May 2013 with a payment of $48,000 from the (omitted) funds. 

18. The wife said in her affidavit, without challenge, that, when the husband was in prison in (country omitted), Mr S used his power of attorney to withdraw $30,000 from the husband’s (omitted) superannuation and used it to discharge a business loan.  The wife said she had been a guarantor for that loan and the bank was asking her for payment. In cross examination, the husband’s evidence on this topic did not squarely deal with the issue.  I accept the wife’s evidence in relation to the withdrawal of the husband’s (omitted) superannuation.

19. In relation to the $118,000 from WorkCover, the husband said in his affidavit that he spent:

    a)$36,000 to discharge the mortgage;

    b)$50,000 to discharge a personal loan for a business that he started that went broke (the business involved (business omitted) to (country omitted)); and

    c)$32,000:

    i)to help Mr S with the deposit on a home and to buy a car;

    ii)to buy a motorbike for Mr N;

    iii)to fund a trip to (omitted) with Mr N;

    iv)to pay $5,000 for school fees;

    v)to visit his sick mother in (country omitted); and

    vi)to supplement his income for daily living expenses.

20. The wife disputed the husband’s claims.  She said that the husband did not buy Mr S a car or provide him with a house deposit.  She said the husband withdrew $100,000 of the $118,000 WorkCover payout on 14 December 2012, two days after receiving it.  The wife said that the husband’s bank records showed that the husband spent $28,000 in small amounts between December 2012 and May 2013, much of which was spent in (country omitted), where the husband travelled during that period.

21. The wife said that, apart from the $28,000, the husband may have deposited the balance of the $118,000 into another account (such as account number (omitted)) and used it over time.

22. The husband claimed that, in 2011, he and the wife withdrew $24,000 from his superannuation account and used $14,000 of it to pay accrued interest on the mortgage and $10,000 to buy a car.  The wife disputed these claims, saying that the husband withdrew his superannuation later.

23. The court has not been given sufficient evidence to ascertain exactly what fund was used for what purpose.  One way or another, the wife said that $190,000 received by the husband as lump sum payments is unaccounted for.

24. As set out above, the husband received lump sum payments of $241,293.  From that total, I accept that he has paid:

    a)$48,000 to discharge the mortgage over the former matrimonial home;

    b)$50,000 for a personal loan for a failed business venture; and

    c)$30,000 for a business loan for another failed business venture.

25. That totals $128,000.  Deducting that from $241,293 leaves roughly $113,293. The husband conceded that he had spent $40,000 on gambling.  That leaves $73,293.  The husband also said that he paid $5,000 for Mr N’s school fees, which I accept.  That leaves $68,293.  The husband said that he bought a solar system in 2012 for $11,000, of which $5,000 remains unpaid, meaning that he has spent $6,000.  That leaves $62,293.  The husband said that he spent the balance on living expenses, which would include the $28,000 the wife said he spent in (country omitted).

26. It was not entirely clear from the evidence, but it seems that the $30,000 withdrawn from the husband’s (omitted) superannuation was not included in the wife’s calculation of the lump sum payments received by the husband.  So that has to be added back, making a total of $92,293.

27. Spending $92,293 in the five years since the first lump sum was paid to the husband on 12 December 2012 works out at about $18,500 per year.  That is not extravagant.  It must also be remembered that at least the first lump sum of $118,000 was for unpaid wages.  That is, it was a retrospective payment of wages. In moderation, it is obviously reasonable to spend a payment for wages on living expenses.  It would also be reasonable to expect that the husband would have acquired debts while he was waiting to receive his WorkCover payments that he would have needed to discharge upon receipt of the $118,000.

28. In all the circumstances, I do not consider that the husband has wasted large sums of money, apart from the sums mentioned previously that he spent on gambling.  His expenditure on alcohol was probably not particularly excessive.  The wife did not suggest that the husband’s business ventures, which were unsuccessful, amounted to wastage.

29. As mentioned in relation to the parties’ assets and liabilities, the husband presently has debts as follows:

    a)council rates: approximately $14,000;

    b)school fees: $17,000;

    c)utilities: $3,800;

    d)solar panels: $5,000; and

    e)a credit card: $5,000.

30. The husband made a vague suggestion that some of these expenses should be attributed to the wife.  However, he did not substantiate that with any documents and I do not accept it.

31. Since leaving the former matrimonial home at the end of 2011, the wife has been renting.  She is currently paying $260 per week in rent.  If that is multiplied out over six years, she would have paid over $80,000 in rent.  During most of that time, the husband has been living rent and mortgage free in the former matrimonial home.

32. The husband has withdrawn about $93,000 of his superannuation, being all but $1,900.  He has made his superannuation unavailable for distribution to the wife.  Having said that, some of the husband’s superannuation has been used to discharge the mortgage over the former matrimonial home.

33. Since separation, the husband has made five suicide attempts by taking drug overdoses.  He has had electroconvulsive therapy and has been admitted to a psychiatric hospital for a week.  The wife and Mr S have been obliged to call ambulances for him.  When being cross examined about repairs to the house in the context of it being sold, the husband said:

    Maybe if I walked out from here … you’re going to have some very bad news, very bad news.[6]

    [6]     Tr. p.109, l.20-24

34. I take that as a threat that the husband would attempt suicide again if the court gave the wife the responsibility for effecting the sale of the former matrimonial home.  I consider this threat to be an attempt to control the wife and the court.  I do not consider that the husband would actually commit suicide.  His numerous attempts are indicative of controlling behaviour rather than a genuine intention to die.

35. The wife said in her affidavit that the husband had said to her that, if the former matrimonial home was sold, he would commit suicide inside it.  The husband did not challenge that evidence.  I accept that the husband made that statement.  However, as mentioned above, I do not accept that he would commit suicide inside the former matrimonial home or elsewhere.

36. When asked if he would comply with an order that he vacate the premises to enable it to be sold, the husband initially said that he would not, but later said, when asked again by the court, that he would.

37. In relation to the legal proceedings, there was an order made on 15 September 2017 that each party pay half the costs of the sworn valuation of the former matrimonial home.  The husband refused to pay his half, and the wife was obliged to pay for the whole valuation.  The husband’s share was $440.  In cross examination, the husband said that he should not have to pay half of the valuation because he didn’t start all of this[7], and because he is not a money-making person[8].  He also said in re-examination that:

    I’m a spender. I spend money.  I’m a spender.  … if I have money, if I see something … something beautiful, I buy it.  I just buy.[9]

    [7]     Tr. p.105, l.25-26

    [8]     Tr. p.105, l.41

    [9]     Tr. p.114, l.40-43

38. The husband failed to file material in time for the conciliation conference, so it could not proceed.  The matter was listed before the court on 15 September 2017 for consideration of the question of the costs of the conciliation conference.  The costs of the conciliation conference were reserved to the trial. Consequently, the wife was out of pocket, for no useful purpose, for the costs of the conciliation conference and the cost of the hearing on 15 September 2017. 

39. On scale, the costs of the failed conciliation conference and the hearing on 15 September 2017 are:

    a)$1,832 for the conciliation conference; and

    b)$1,099 plus the 50% advocacy loading, making $1,648.50, for the hearing on 15 September 2017

40. That totals $3,480.50. 

The s.79(4)(d), (e), (f) and (g) and the s.75(2) factors

1. The wife is 57 years old.  She suffers from high blood pressure, type 2 diabetes, nerve pain, frozen shoulder, anxiety and depression. She is unemployed and receives $550 per week as a disability support pension from Centrelink. She has not been in the work force for over 27 years. It is unrealistic to suppose that she could obtain employment in the future.  The wife could be expected to stop receiving the disability pension when she is 67 years old, in about 10 years.

1. The wife was also receiving $275 per week child support from the husband for Mr N.  However, Mr N has now turned 18 and child support is no longer payable for him.  However, he does not have a job and is not studying.  It was not explained whether he is in receipt of social security.   The mother claimed that she is shouldering the financial burden of supporting Mr N.  I accept that she is, at least to some extent.

2. The husband is 63 years old.  He suffers from nerve damage in his arm and leg, sustained in a workplace accident, diabetes and high blood pressure. He also suffers from severe anxiety, major depressive disorder and bipolar disorder. The husband receives $1,100 per week from WorkCover. He also receives $150 per week from an unidentified person who lives in the former matrimonial home. It is unrealistic to suppose that the husband could obtain employment in the future.  The husband could be expected to stop receiving WorkCover and start receiving the age pension when he is 66 years old, in about two or three years.

3. Neither party has the care and control of a child of the marriage who has not attained the age of 18 years.  The wife is supporting Mr N, who is 18 years old.  Otherwise, neither party has the responsibility to support anyone.

4. The wife pays rent of $260 per week and otherwise has the usual expenses. The husband is living in an unencumbered home and otherwise has the usual expenses, plus the money he spends on gambling.

5. As mentioned above, the wife receives a disability support pension.

6. It appears that the parties have always had a modest standard of living.

7. Mr N is living with the wife.  Whether he is in receipt of social security was not made known to the court. He does not have a job.

8. The husband is living with an unidentified person on an unidentified basis. The person pays the husband $150 per week for unidentified reasons.

9. The other matters mentioned in s.75(2) of the Act are discussed elsewhere in these reasons or are not relevant.

Whether it is just and equitable to alter the parties’ property interests

1. It seems to me that it would be just and equitable to alter the parties’ interests in their property.  The only asset of substance that the parties have is their jointly owned former matrimonial home.  It would not be just and equitable for the husband to continue living in it, without giving the wife a proper share of its value.

What order is just and equitable?

1. The wife sought orders in her further, further amended application filed on 3 December 2017 as follows:

   1.In these Orders:

   1.1.“The Authorised Persons” means and includes: 

   1.1.1.The wife and her servants and/or agents;

   1.1.2.The Registrar of the Federal Circuit   Court of Australia and his/her servants and/or agent;

   1.1.3.The Marshall of the Family Court of Australia and his/her servants and/or agents;

   1.1.4.All agents and officers of the Australian Federal Police;

   1.1.5.All agents and officers of the Victoria  Police;

   1.1.6.All Sheriffs of all courts in the State of Victoria and his/her servants and/or agents.

   1.2.“The Property” means and include the real property situated at and known as Property A, together with all chattels, fixtures and fittings.

   2.That within 60 days of the date of these Orders the Husband provide to the Wife or her nominee vacant possession of the property.

   3.That the Wife or her nominee take possession of the property.

   4.That the Wife or her nominee be appointed as Trustee for the sale of the property to do all such acts and things as shall be necessary to sell the property for and on behalf of the parties and in doing so:

   4.1.Firstly, to pay all costs, commissions and expenses of the said sale;

   4.2.Secondly, to discharge any mortgage or any encumbrance affecting the property;

   4.3.Thirdly, the balance be divided:

   i.      65% to the wife;

   ii.     35% to the husband.

   5.That from the husband’s share of the proceeds of sale, the following amounts are to be deducted and reimbursed to the wife prior to any distribution being made to the husband:

   5.1.$440 being reimbursement of a half share of the costs of the joint valuation of the former matrimonial home;

   5.2.The whole amount deducted from the settlement proceeds by way of adjustments for payment of outstanding council and water rates for the property.

   5.3.The cost of any repairs / rubbish removal incurred by the Wife in the course of the sale and / or settlement of the sale of the property.

   6.That in the event that the Husband fails to provide vacant possession of the properties pursuant to Order 2 herein:

   6.4.The Authorised Persons be and are hereby authorised and directed, with such assistance they or any of them shall require, and if necessary by force, to do all such acts and things and shall be necessary to cause, enable, facilitate, enforce and ensure:

   6.4.1.The prompt and effective delivery up of vacant possession of the property to the Wife;

   6.4.2.The prompt and effective implementation of the provisions of these Orders;

   6.5.A Warrant of Possession be issued by the Registrar for the Recovery of the property to the Sheriff to enter the property and cause the Wife or her nominee to have possession of the property;

   6.6.The Husband and his servants and agents be restrained by injunction from:

   6.6.1.Entering or remaining within 500  metres  of  the  property  (or  any   part thereof);

   6.6.2.Selling, disposing or, transferring, assigning, adversely dealing with, charging, encumbering, further encumbering or otherwise dealing with or attempting to dealing in anyway whatsoever with the property or any part thereof;

   6.6.3.Removing from the property the chattels. fixtures and fittings;

   6.6.4.Doing, causing, enabling, authorising or facilitating any act or thing has or may have the effect of;

   6.6.4.1.Demolishing, razing, dismantling, harming, breaking, defacing,  polluting or damaging the Property (or any part thereof)  in any [way] whatsoever;

   6.6.4.2.Diminishing the utility or  aesthetic  appeal  of  the  Property  (or any part thereof)  in any [way] whatsoever;  and/or

   6.6.4.3.Diminishing the value of the Property (or any part thereof);

   6.6.4.4.Terminating  any tenancy agreement;

   without   the   clear   and  express  written   consent of the Lampe Family Lawyers having first been obtained (such written consent only to be provided for the sole and express purpose of promptly, properly and effectively implementing the provisions of these orders and the Court orders made on 31 May 2017.

   7.That:

   6.7.All  parties  shall  do  all  acts   and   things   reasonably   required   by   the   other including the signing or execution of all necessary documents to give effect to the provisions of these orders within 14 days of being requested to do so;

   6.8.If any party refuses or neglects to sign execute and return a document within 14 days of a written request to do so then the Registrar of the Melbourne Registry of the Family Court (on behalf of the Federal Circuit Court) is hereby appointed under section 106A of the Family Law Act 1975 to sign or execute such documents on behalf of that party upon lodgement of such documents and the filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal of the other party shall be sufficient evidence to enable the Registrar to sign such document on behalf of the other party; and

   6.9.A  defaulting  party  shall  pay the  other  party’s  taxed  costs  of  and  incidental to such request and production of documents to the Registrar.

   7.That from the Husband’s share  of any  property  settlement  the Wife  is to  be reimbursed the sum of $3,000.00  by way  of costs thrown  away with  respect to the court appearance on 31 May 2017.

   8.That there be an equalisation of the superannuation interest of the parties.

   9.Such further and other orders as this Honourable Court deems appropriate.

2. Essentially, the wife sought orders that the former matrimonial home be sold and that the proceeds of sale be divided 65% to her and 35% to the husband.  She sought that, from the husband’s share, she be reimbursed for various costs. She also sought that there be an equalisation of the superannuation between the parties.

3. The husband sought orders as follows:

   1.That the Respondent Husband pay to the Applicant Wife the sum of $150,000.00 (‘the payment’).

   2.That contemporaneously with [the] payment:

   a.The Applicant Wife do all such acts and things and sign all such documents as required to transfer to the Respondent Husband all of her title and interest in the real property situated at and known as Property A.

   b.The Respondent Husband indemnifies the Applicant Wife against all payments and liability associated with the all rates, taxes and outgoings related to the real property of whatsoever nature and kind.

   IN THE ALTERNATIVE

   3.THAT Applicant Wife and the Respondent Husband DO ALL ACTS AND THINGS NECESSARY TO SELL OUT OF Court the real property situated at and known as Property A. The proceeds of sale will be paid in the following manner and priority:

   a.In payment of agent’s commission and auction expenses if any due on the sale

   b.The balance to the divided between the Applicant Wife and the Respondent Husband as to 30% to the Wife and 70% to the Husband.

   4.That pending the payment or completion of the sale;

   a.The Respondent Husband has the sole right to occupy the real property and that during such right of occupation the Respondent Husband pays all rates and taxes and like apportionable outgoings of the real property as they fall due

   b.The parties hold their respective interests in the real property upon trust

   c.Neither party encumber the real property without the agreement in writing of the other party.

4. Basically, the husband sought orders enabling him to buy out the wife’s share of the former matrimonial home for $150,000 and, in the alternative, for the former matrimonial home to be sold and the proceeds divided 70% to the husband and 30% to the wife.

5. The husband said that he had an unidentified friend who could provide a substantial sum that would enable him to buy out the wife’s share of the property, depending on how much it worked out to be.

6. In my view, the contributions of the parties were equal at the commencement of the relationship. During the relationship, the contributions would have been equal with the wife being the primary carer of the children and the homemaker, and the husband being the breadwinner, except that the wife’s contributions were made more onerous by the husband’s violence towards her and except that the husband wasted about $120,000 during the relationship on gambling.

7. Following separation, the wife’s contributions were substantially greater than the husband’s because he wasted at least $50,000 on gambling and he had the benefit of living in an unencumbered house while the wife spent over $80,000 on rent.  Moreover, the wife has had the care of Mr N for all but the first six months following the wife moving out of the former matrimonial home at the end of 2011.   

8. It is true that the husband paid child support, albeit often very late.  However, it is well known that children cost a good deal more than the amount required to be paid for child support, and there is the additional commitment involved in caring for children.  While the husband was busy drinking and gambling, the wife was raising their sons.

9. The husband submitted that the wife had not done a very good job of raising Mr N because he is unemployed and not studying.  However, there can be many reasons for that, and in the absence of expert evidence on the causes of Mr N’s current difficulties, I am unable to lay the blame at the feet of the wife.  Having said that, it would not be surprising if having a father who is a violent, alcoholic gambler who has bipolar disorder and who attempts to commit suicide about once a year would have contributed to Mr N’s difficulties.

10. In terms of future factors, both parties are of limited means.  The husband is earning substantially more than the wife while his WorkCover payments continue, but within two or three years, he will be on the aged pension.  The parties will then be in roughly equivalent financial circumstances.

11. This case is very difficult, because there simply is not enough money in the pool to give both parties a sum that would enable them both to have a house of the same value as the former matrimonial home.  It may be that both parties will be confined to renting for the foreseeable future.

12. I do not consider that a split of the husband’s superannuation is appropriate in this case.  It is worth so little, and the parties are so close to retirement, that it is more practicable to take into account superannuation in the amount to be paid to the wife.

13. The wife asked that the husband pay the wife’s costs of the first court date on 31 May 2017, being the date that the husband did not attend court.  Consequently, the wife paid for her legal representatives to attend court on that day for no useful purpose.  On scale, the amount for half a day is $1,099 plus the 50% advocacy loading, which would make a total of $1,648.50. 

14. The wife also asked for the costs of the conciliation conference and the consequent attendance on 15 September 2017.  Those costs on scale total $3,480.50. 

15. Costs in family law proceedings are governed by s.117 of the Act. That section provides as follows:

    (1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.

    (2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

    (2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:

    (a)the financial circumstances of each of the parties to the proceedings;

    (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

    (c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

    (d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

    (e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

    (f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

    (g)such other matters as the court considers relevant.

    …

16. The financial circumstances of the parties are discussed elsewhere in these reasons. Basically, neither of them is well off. Neither party was in receipt of legal aid. The husband’s conduct of the proceeding, in failing to attend court on 31 May 2017, in failing to provide material prior to the conciliation conference, in failing to provide adequate disclosure, and in being argumentative and evasive in cross examination, made the proceeding more onerous and expensive for the wife. The other matters in s.117(2A) of the Act do not apply.

17. Taking into account the relevant matters specified in s.117 of the Act, it seems to me to be just to require the husband to pay the amounts specified above to the wife being:

    a)the $440 for the valuation;

    b)the $1,648.50 for the hearing on 31 May 2017; and

    c)the $3,480.50 for the conciliation conference and the hearing on 15 September 2017.

18. In my view, and for the reasons discussed above, it is just and equitable that the wife receive 60% of the value of the former matrimonial home, on the basis that:

    a)the parties each keep the chattels in their possession;

    b)the husband be solely responsible for his liabilities; and

    c)the husband pay the wife:

    i)$440, being the husband’s half of the cost of the valuation; and

    ii)$5,129, being the legal costs mentioned above. 

19. More specifically, the reasons for that division are primarily that:

    a)the husband wasted at least:

    i)$120,000 on gambling during the relationship; and

    ii)$50,000 on gambling post separation, which would have covered his existing debts;

    b)for many years, the husband has had the benefit of living rent and mortgage free in the former matrimonial home while the wife has had to spend about $80,000 on rent;

    c)the wife’s contributions were made more onerous by the husband’s violence; and

    d)the wife has had the principal care of Mr N since six months after she moved out of the former matrimonial home.

20. The husband strongly feels that he should be given an opportunity to buy out the wife.  The husband has not given any solid evidence that he will be in any position to do that but has made a vague reference to a friend buying a share of the property.  However, as the wife proposes that the husband have 60 days to vacate the property, I consider that it would be reasonable to give him 45 days to pay the wife the required sum.  If he is not able to do so, he will have to vacate within a further 15 days. 

21. The required sum is calculated as follows:

    a)$264,000, being 60% of the value of the former matrimonial home;

    b)$440.00, being half of the costs of the valuation;

    c)$1,648.50, being the wife’s costs of 31 May 2017;

    d)$1,832, being the wife’s costs of the conciliation conference; and

    e)$1,648.50, being the wife’s costs of 15 September 2017.

22. That totals $269,569.  There will be orders permitting the husband to keep the house if he pays the wife that sum within 45 days.  If he fails to do so, the orders will provide for the wife to sell the house. 

23. I will make orders under s.106A of the Act, permitting the registrar to sign documents on the husband’s behalf upon an affidavit sworn or affirmed by the wife or her solicitor to the effect that the husband has refused or neglected to sign documents as required. It is necessary to make such an order, as the conduct of the husband to date indicates that he is unlikely to be cooperative in resolving this matter.

24. The wife also seeks an order that a warrant of possession be issued in the event that the husband does not vacate the property.  It seems to me that it is premature to make that order.  However, if the husband does not pay out the wife or vacate the premises within the time permitted, there will be orders providing for a warrant of possession to be issued upon the filing of an affidavit of the wife or her solicitor to the effect that the husband has not paid the required sum or vacated the property.  The husband should know that, if a warrant of possession is required, the costs associated with it will most probably be deducted from his share of the house.

25. There will be orders accordingly.

I certify that the preceding one hundred and fifty-eight (158) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 13 April 2018