Nash and Isbett

[2018] FCCA 2385

FEDERAL CIRCUIT COURT OF AUSTRALIA

NASH & ISBETT [2018] FCCA 2385

Catchwords:
FAMILY LAW – De facto property dispute – wife asserting very short relationship and husband asserting over 10 years – wife’s evidence and evidence of her witnesses compelling – husband’s evidence unsatisfactory – wife’s evidence accepted – wife making overwhelming contribution – future needs equal – just and equitable that wife receive 95 per cent of the property pool and each party retain their superannuation.

Legislation:

Family Law Act 1975

Cases cited:

Stanford v Stanford [2012] HCA 52

Applicant: MS NASH

Respondent: MR ISBETT

File Number: DGC 2965 of 2017

Judgment of: Judge Burchardt

Hearing date: 17 July 2018

Date of Last Submission: 17 July 2018

Delivered at: Dandenong

Delivered on: 3 September 2018

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Mr Potter

Solicitors for the Respondent: Bowen Barrister and Solicitors

ORDERS

1. That the wife pay the husband $9,750 (“the payment”) within 90 days.

2. That in the event that the whole of the payment has not been made by the date, the real property be forthwith sold together out of Court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:

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

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

   (c)Thirdly so much of the payment as is then outstanding together with interest thereon at the rate of 7.5 per centum per annum adjusted monthly from the date to the husband. 

3. That each party hereby forgoes any claim they may have to any Superannuation benefits belonging to or earned by the other.

4. That each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders.

5. The wife pay to the husband, via his solicitors Bowen Barristers and Solicitors the sum of $500 being one half of the cost of the valuation of the real property situate at Property A within 60 days.

6. Any application for costs be otherwise made in accordance with the Rules.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2965 of 2017

MS NASH

Applicant

And

MR ISBETT

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a property dispute arising out of a de facto relationship.  Although the parties never married, it is convenient to refer to them as wife and husband.  The wife seeks, in effect, to obtain the entirety of the former matrimonial home at Property A, the husband presently being registered on title as a co-owner.  She also formally, at least, seeks the return of various chattels allegedly taken by the respondent husband.  The respondent husband, through his counsel in final submissions, seeks a property adjustment of no more than 30 per cent to the husband.  He also seeks that each party retain their superannuation.

2. The critical issue in the matter is the length of the relationship and what the husband did during it.  The wife says that the relationship only commenced as a true de facto relationship in 2014 and subsisted until 2016.  The husband says the relationship commenced in 2003 and continued to 2016.  The husband says he did an enormous amount of work on various properties owned by the wife from time to time and on the matrimonial home.  The wife says he did no meaningful work on the properties she owned and no more than half the work in the matrimonial home.

3. For the reasons that follow, I think that the de facto relationship only truly commenced in 2014.  The husband did not do any work of any note on the wife’s earlier properties and the parties worked equally on the matrimonial home.  In my view, the husband should receive 5 per cent of the property pool and retain his superannuation.

The Parties’ Trial Affidavits

1. The wife’s trial affidavit filed 9 July 2018 deposes that she first met the husband in 2003.  The husband was then living at a property in Property B, and the wife was living at Property C, a property she had built in 2001 as an owner-builder and in which she asserts she had some $75,000 in equity.

2. The parties commenced a relationship in 2003 but after six months according to the wife the husband had a fight with her son, Mr M, then 15 years of age, and the relationship ended.

3. The wife deposed that she dated on and off over the next 10 years with the husband.  She deposed that sometimes they would not be together for periods of six months or more and that during those times she dated other men and socialised with friends.  Although the husband stayed over at her home from time to time, they never lived together and did not have a joint bank account and the husband did not support her financially.

4. The wife sold her Property B property in 2004 and in 2004 purchased a property at Property D.  She concedes that the husband chopped down a two to three metre high cypress tree at the front of the property but otherwise disputed the husband’s assertions that he had done any work other than of the most minor sort at that property.

5. The wife deposed that in 2005 she purchased a property at Property E.  She deposed to her conducting the renovation of the kitchen rather than the husband.  She did not sell the Property D property to buy Property E, and did not sell Property D until 2007.  She had rented the Property D property to her sons, Mr M and Mr T, for six months and when they moved out, her son, Mr R, and his girlfriend, Ms N, and grandson, [A], moved in.  They rented the Property D property until 2007 when it was sold.

6. The wife disputed the value of a shed bought by the husband for the Property E property.  The Property E property was sold in 2007.

7. The wife bought a further property at Property F in 2007 and moved in in 2007.  She was moved in by friends, Mr A and Ms B, because she was not at that time seeing the husband.

8. The wife conceded that the husband erected a garden edge at the back of the property but deposed to difficulties with the quality of its construction.  In February 2008 the wife ceased work to look after her mother and obtained a carer’s pension together with casual work.

9. The wife conceded borrowing $10,000 from her employer but deposed to paying it back herself.

10. The wife deposed that by 2013 she and the husband were seeing each other more regularly, although he continued to live at Property C and was in receipt of rental assistance from Centrelink throughout the period 2002 to 2015.

11. After the wife’s mother died the wife deposed that she and the respondent husband discussed purchasing a property together.  They decided to buy Property A.  The wife deposed that it was her understanding that she would pay the deposit from her savings and use her inheritance to fund the expenses in renovating the property and that the husband would obtain a loan for the balance of the purchase price, namely, $105,000.  The Property A property required a major renovation.  It was the wife’s understanding that they would live in the Property F property until the Property A property was renovated and thereafter it could be rented out for income.

12. The wife paid a $10,000 deposit onto the Property A property but, in what the wife asserted was a breach of the agreement, the husband did not obtain a loan so she had to remortgage the Property F property to fund the purchase.

13. The wife deposed that it was asserted that he would pay $100 per week in rent at the Property F property but that this did not eventuate.

14. The wife deposed to both of the parties working on the Property A property but that the husband only had Centrelink payment income.  Financial pressure meant that she had to sell the Property F property.  Her grandson, [A], was placed into her care at Property A in April 2016.  The wife had received $80,000 from her mother’s estate in 2013 and used those funds to purchase items needed to make the Property A property a home.  The wife deposed that contrary to the husband’s position it was her who brought all the materials to renovate the property.

15. Otherwise, the wife’s trial affidavit consists of assertions as to the lack of contributions on the husband’s part and a traversal of his assertions to that effect.

The Husband’s trial affidavit

1. The husband’s trial affidavit filed on 5 June 2018 paints a starkly different picture.  He deposed to the parties living together from 2003 onwards.  At paragraph 5 he deposed to living at Property C at the commencement of the relationship.  He went on to assert:

   “When I commenced to live with Ms Nash in 2003, I continued to rent the room at Property B because it enabled me to maintain the necessary storage space I needed to house our boat, motor bike and Motor Vehicle 1.  From the time Ms Nash and I cohabited, I stayed at Property B on average about one night per month.  We had a few occasions when we separated, but the separations were never for more than for a week or two.”

2. The husband deposed to the mutual Intervention Orders taken out between the parties.  Otherwise, the affidavit is essentially a deposition to the alleged significant work that the husband did on the various properties owned by the wife from time to time.  He further deposes to contributing his income to the maintenance and running of the shared household.  He further deposed to paying substantial amounts towards holidays from time to time.

3. I note that the husband annexed as I 2 photographs of the Property A property before its renovation and these certainly appear to show it in a very rundown condition.

4. He also deposed to a reference written on or about 26 October 2013 by the wife in which she described him as a partner of 10 years.

5. I note that at paragraph 72 the husband deposed:

   “I applied for an IVO against Ms Nash, because she was not showing any respect to me or the property we had acquired and transformed together.”

6. It should be noted that the above is only a paraphrase of some of the more important aspects of the affidavit material.  It is, however, appropriate to concentrate on what was said at Court.  What follows is taken from my notes.  It is self-evidently not a transcript but records matters I found significant.

The Submissions and Evidence of the Wife

1. The wife, who was self-represented, said she could not afford a barrister.  She said she has no money left.  She borrowed to pay solicitors.  The husband had taken items that belonged to her parents.  The husband had not lived with her from 2003.  His VicRoads records showed that he did not own a vehicle until 2012.  His Group Certificates all stated the Property C property.  He moved in with the wife in 2014 and received full Centrelink benefits for some years.  The witnesses she would call would prove her non-cohabitation.  The husband made no contribution.  The Property F property was solely in her name.  It cost $115,000 to purchase.  She paid the loan solely on her own.  She alone financed $80,000 towards the home which came from her inheritance.  She had not received the husband’s documentation.  He did not contribute to Property A.  Each party should keep their own superannuation.

2. When sworn, the wife adopted her affidavits as true and correct.  She is a part-time (occupation omitted) and in receipt of a Disability Pension.  The group certificates of the husband from 2003 to 2013 gave his address at Property C and VicRoads was at Property C until 2014.

3. Under cross-examination by counsel for the husband the wife confirmed that she and the husband became intimate in 2003.  The relationship was on and off again until separation.  She was working full-time when they first met for (employer omitted) in Suburb A.  In 2008 she commenced to receive a Carer’s Allowance for her mother and continued to work one day per week.  Then she went onto a Disability Pension after a breakdown in about 2011.  She also worked part-time one day per week for Mr A and sometimes two days per week towards the end of each month.  She was not working full-time in 2012.

4. The husband was unemployed for six years and on Centrelink benefits.  She conceded the husband’s earnings in 2003 and 2004.  The $22,279 was reflective of Centrelink for almost all the year.  In 2005 the husband had no earnings.  His earnings from 2013 to 2016 were all Centrelink benefits.  When it was put to her that his income was $60,000 in 2013 the wife said that he had earned until December and was then on Centrelink benefits.  In 2014 he was on Centrelink benefits.  He finished with (employer omitted) in December 2013 and was then on Centrelink benefits.  The parties were not in a de facto relationship.  For her this was living with someone.  He did not live with her until 2014.

5. For the first six months of the relationship they saw each other but there was then an altercation with her son, Mr M.  Mr M would not have him there.

6. The wife conceded that she had signed annexure I 6, the reference to which reference has been made in paragraph 22.  The husband needed this.  She gave this reference because they were seeing each other at that time.  They saw each other for a month and then would not see one another for nine months.  He did not give her a cent.  She paid the mortgage.  He did not even pay for the food he ate.  The wife said she kept going back to him and said, “I’m an idiot.”  In the beginning he would pay for tea but he never went shopping and never bought food.  In 2014 he would buy meat or cereal but she does not eat meat.  The wife has not filed tax returns since 2008 because her income is so low.  She had a mortgage at all times and solely paid for it.  They would go out half a dozen times a year and not see each other for months.  She paid all the utilities, the mortgage and the car.  She also paid all the food.  She has used her mother’s inheritance and has no money now.  When it was put to her that he would buy her a trolley load of Pepsi, the wife said she drinks a slab of Pepsi at a cost of $14 whereas he drinks a slab of beer at $100.  She paid $7,000 in utilities from 2014 to 2016.  There were three cruises she took him on.  She bought him a motorcycle for $2,500 and bought him clothes.  She had paid $30,000 on him.  He gave her no money when he was working and never gave her any money.  She had referred to a 13 year relationship in her Intervention Order application.  He never lived with her and never gave her any money.

7. They both worked very hard on the Property A property.  She could not find any significant work he did on any of her prior houses.  She agreed he chopped down a tree.  He sometimes mowed the lawns.

8. At the end of the relationship he had locked the wife and her grandson out and obtained an Intervention Order.  She also obtained an Intervention Order.  He did not have clothing at her home and had no clothes in her wardrobe.   He did not do work on the doors at Property D.  She moved to Property E and he kept turning up.  There were problems because Mr M did not want him there.  He has experience with building although he is not a builder.  She has never said the husband did nothing.  In Property A he had worked.  He did the decking but she put her foot through it and had to replace it.  She did not borrow money from the husband and never borrowed $20,000.  She borrowed from her employer and paid it back by bankcard.  She borrowed and repaid $10,000.  She has lent $30,000 to her employer.  He helped her buy the block of land.  Property A was rundown when the property was bought but both worked very hard on it.  She worked alongside the husband.  She said, “Every day he worked, I worked.”  Property A was purchased in joint names.  He was to pay the loan.  He would move out of Property C and would move in with her.  He would pay the $100 he saved to assist.  The loan was costing about $110 per week.  He never paid.  She had trusted him.

9. It was always discussed that she would rent Property F .  They were coming to retirement.  She bought Property F in 2008 and he moved in in 2014.  They did not jointly own a boat.  When he moved in with her he said he had no money and was on Centrelink.  He earned $250 a week on Centrelink.  He had taken all her stuff when he left.  The fridge belonged to the wife’s mother.  He took a theatre lounge, a new lounge, the TV, the ride-on mower and the trailer.  Some of the tools he took had belonged to the wife’s mother.  The garage was empty.

10. The inheritance was worth $80,000 and they made money when Property F was sold.  She borrowed money against her house in Property F, an additional $115,000.  She had to sell Property F.  The moneys were mixed in with the inheritance.  She spent $80,000 above the $115,000 purchase price.

11. One property was rented to her child.  Mr M and Mr T lived there and then Mr R until she sold it.  Otherwise, she had not rented the property.  She has had no income since 2008 save for one to two days’ work and Centrelink payments.

12. The wife was cross-examined about an application for finance to the Bank R in January 2012 (exhibit R1) and said she must have refinanced Property F but was not sure.  When challenged about the income disclosed in the application she said that Bank R won’t let you put your pension.  It has to be a wage.  It was put to her that she had disclosed an income of $3,200 per month and she said this sounded right but it might be a bit less.  The husband was not contributing and his name was not on the loan application.  He did, however, witness the document.

13. When it was put to her that she had applied to the Bank S in 2017 and given an income of $43,290 the wife frankly admitted that this was the case and she had falsified a payslip to this effect.  This was exhibit R2.  She said she had to get a loan or she would not get any money.  She denied that the husband had welded up her gate.  In 2013 he had told her he needed a reference to get his driving licence.  The husband had given up drinking while he had an interlock on his car but then took it up again when he got his licence back.  He consumed two slabs of beer per week.  All the receipts were out of her bank account.

14. The net gain from the sale of the Property F property was $70,000.  She had spent $27,000 on legal representation to get her grandson with her.

15. The husband had not lived with her in Property E.  She had her grandson full-time and Mr R lived with her.  The husband might have removed some items from Property D but had not contributed to the household.  He mowed the grass at Property E.  He had built the shed at Property F.  He paid for a holiday in (omitted) in 2007 but all the cruises were paid by her.  On a cruise he had bought an all you can drink package for $69.99 per day.

The Evidence of Mr A

1. Mr A is a company director who adopted his affidavit as true and correct.  He said he helped the wife move into Property F in 2007.  There was nothing to show the husband living at Property E.  He had visited Property E and the husband was not there.

2. Under cross-examination Mr A confirmed he only met the husband once with the wife.  She moved to Property F and he was there once.  When he socialised with the wife husband was never there.  He used to go to visit the wife once every three months both at weekends and weekdays.  She had to move on her own and he hired a truck for her and his employees moved her.  There was nothing there of the husband’s.  In re-examination he confirmed that everything moved into Property F belonged to the wife.

The Affidavit of Ms N

1. Ms N adopted her affidavit as true and correct.  Under cross-examination she confirmed that she has known the wife for 16 years.  On her frequent visits the husband was never present.  [A] stayed regularly but the husband was never there.  There was a gate already erected at the property the husband claimed to have built it on.  She had never seen the husband in Property D but was aware that he visited Property F occasionally.  The husband was not assessed by the Department of Health and Human Services in relation to [A] living with the parties.

The Evidence of Ms B

1. Ms B adopted her affidavit as true and correct.  She said she always helped the applicant pack or unpack and the husband was never there for any of the moves.  She said that Mr A helped her move to Property F.  She would visit in the evenings during the week and in the daytime during the weekend.  The husband was only ever there irregularly.  She regularly visited the wife.  This would be twice per week.  Under cross-examination Ms B confirmed that she sometimes went through the wife’s wardrobes.  She said, “Ms Nash’s house is my house.”  There was no evidence of the husband living there.  She had the impression he was not particularly welcome.  She saw him having a beer.  She had spoken to the husband.  He was there only rarely.

The Evidence of Ms W

1. Ms W adopted her affidavit as true and correct.  She confirmed that she used to visit Property E.  She had looked at the property in Property F with the wife.  The wife paid the deposit and signed the contract to purchase on that day.  She had left Property E because of a noisy neighbour.

2. Under cross-examination Ms W confirmed that she used to visit the wife and only saw the husband there a couple of times.  She and the wife used to go out regularly.  The husband was not there at Property D.  She went to Property E every fortnight.  They rang each other regularly.  The wife does not lie.  She would ask if she was seeing the husband and would say that she was not.

The Evidence of the Husband

1. Mr Isbett is an unemployed (occupation omitted).  He adopted his affidavits and Financial Statement as true and correct.  He has not worked for about one and a half years and has had a cataract for the last 12 months.

2. Under cross-examination by the wife the husband confirmed that his last job was at Town M for three months around the time of separation.  He denied only ever having one vehicle till 2012.  He said he was using the Property D property as a registration place.  The documents from VicRoads were not correct.  All his vehicles were registered to Suburb B, the same as his address on his driving licence.  He was there before he met the wife.  He had firearms in the rented property.  His superannuation, group certificates, everything went to Property C.  He stayed at Property A sometimes.  He was in receipt of rental assistance.  He was adamant that he had lived full-time with the wife until 2014.  He said he saw her moving quite a bit and therefore kept the same address.  When it was put to him that there was plenty of room at the various properties to store his belongings, including his boat, he said this would have made a mess.  They had small backyards.  Property E was a feral place.  He checked the electrics and made it safe.  He tidied up the garden and assumed she made a profit.

3. The husband said that she had let her property in Property D to her children who had trashed it.  He had removed a motor from it.  When challenged about the $3,500 spent on a shed he said this was the cost of the shed.  It was concrete with filling underneath.  The figure was, however, only an approximation.  He said he helped the wife with the kitchen at Property E which they had done together.  He drove without a licence to Town N when he was working there because he felt safe driving up the road.  He had undertaken additional work to that at (employer omitted).  There were problems with the Australian Taxation Office.  He could not explain why there were no group certificates for (employer omitted).  I interpolate and say that it was quite apparent that this was work done for which no tax was paid.

4. When it was put to him that he had rental assistance in relation to the Suburb B property from December 2013 onwards the husband said that whenever he had some cash he would put it on the table.  He would give her money for Bunnings.

5. The husband admitted that they moved into the Property A property in 2015, having bought it in 2014.  He said he was on Centrelink payments from 2013 to 2015.  The wife put it to him that they worked at Property A on the weekends but he said they would go from Saturday to Monday.  He said, “You were buying the materials which were bought with your credit card.”

6. The husband denied an agreement that he was to get a loan and that the wife would get her money back and split any profit fifty-fifty.  He said the wife said that her mental health was under control and that this was their retirement future.  He said, “You never discussed the money because you’re the bookkeeper.”

7. He said he had never said that the wife did nothing.  He had not found a job.  Eventually he found three months work and she walked out.  This was a stressful time and the job fell through.  He denied threatening he would take everything.  He denied trying to destroy records.  He said he would not go there if he was not on title.  He did not remember the wife’s assertion that it was a fifty-fifty job.  He said he had not been to the Bank R.

8. The acre around the barn was overgrown and he did the work there.  He came home from work at the time of separation and there were things missing.  He changed the locks to avoid damage to the house.  He said, “Nobody kicked you out.”  She had said she was going to Mr R.  He was to go to his family.  Half the stuff in the house was gone.  He took two chairs, a fridge, a ride-on mower and a trailer.  He said, in a fashion that I found somewhat off-putting, the wife could have the $100 trailer.  He said he had left the power tools.  He said he had not brought in any furniture.  He had brought it home so he thought he was worth half.

The Evidence of Mr O

1. Mr O adopted his affidavit as true and correct.  He has known the husband all his life.  He sees him occasionally.  He would tell him what was going on.  He saw him once per month.  He would see him in the (location omitted) most weeks.

2. Under cross-examination by the wife Mr O confirmed that he had been to Property A but the wife was not there.  He has not been there since the parties separated.

Some Observations about the Credit of the Witnesses

1. Despite some confusion as to figures, the wife impressed me very strongly as being a truthful witness albeit one who was still very angry with the husband.  She candidly conceded her fraudulent creation of a payslip to assist her to obtain a loan and admitted without any hesitation the reference to a 13 years relationship in her Intervention Order application and the 10 year period in the reference she provided to the husband.

2. Mr A was a transparently honest witness and Ms N, Ms B and Ms W were likewise truthful although, perhaps unsurprisingly, Ms W as a long-term friend was somewhat obviously partisan.

3. The husband was a very poor witness.  He was unresponsive to the questions put and I found a number of his answers prevaricating and self-serving.  He was at all times keen to exaggerate his participation in the wife’s affairs and to exaggerate the effect of anything he had done.  Mr O was honest but his evidence takes the matter no further.

Findings on the Facts

1. I should make it clear that where there is a disparity between the evidence of the wife and that of the husband I accept the evidence of the wife.  The parties met and commenced an intimate relationship in 2003.  It was indeed an on again, off again one.  Its first truncation took place because of an argument between the husband and the wife’s son, Mr M.  Thereafter the relationship resumed from time to time but I accept that it was intermittent.  Not only was the wife a believable witness, but the witnesses she called were all entirely believable.  These are people who know the wife well and who have as I find visited her relatively frequently over the years.  Their evidence is telling.  The husband simply was not there.  Moreover when she moved to Property F there was simply nothing of the husband’s in the house.

2. While I accept, as indeed the wife herself does, that the husband did a few off jobs around the place, removing a tree and erecting a shed, this was all at the margins.  He never paid for the food that he ate when he did see the wife.  His contributions prior to Property A were minimal.  I have seen and heard him give his evidence and I just do not believe him.

3. Once the parties moved to Property A all of this changed.  It is clear that there has been a lot of work done on the property as is shown by the photographs that the husband has exhibited.  As I find the parties worked on this property together and I accept the wife’s evidence that when the husband worked she also worked.  I accept that she is a woman better equipped than many to conduct renovating work and that she had indeed done so on prior owned properties.

4. Although the property was bought for $115,000 and is now said to be worth either $185,000 or $195,000, it is clear that the wife contributed her inheritance very substantially into the materials bought for the property.  It is not possible to disaggregate out of the increase in value the amounts directly referable to the parties’ work.  All one can say is that it must have done something, and indeed quite a lot, to increase the value of the property.

5. I accept the wife’s evidence that it was agreed between her and the husband that he would obtain work and a loan to help fund the property.  Not only was the evidence given with conviction but it makes sense.  She intended to try and keep the Property F property and obviously both parties had to contribute to effect the purchase.  As it transpired she took out the loan and has paid for it since.  It now stands at $51,000.

Stanford v Stanford

1. The Court’s first task is to ascertain the parties’ legal and equitable interests and determine whether a property adjustment is just and equitable.  In this case I have had considerable hesitation in trying to decide whether any property adjustment at all is appropriate.  The de facto relationship was little more than the two year minimum period required by the statute.  In the end however, noting the very marked improvement that was effected in the property and taking into consideration the wife’s concession that the husband had performed half of the renovating work, in my view, it is appropriate that there be a property adjustment.  It should be noted however that the husband’s work at Property A should be offset by the provision to him of rent free accommodation with all food and utilities paid by the wife.

The Pool

1. The pool consists of the former matrimonial home, value $195,000 (husband), $185,000 (wife), with a mortgage of $51,000.

2. The wife has revealed in her Financial Statement filed 15 September 2017 ownership of a property at Property G in the value of $50,000.  Nobody has said anything about this property and I infer that it is a property purchased by the wife post relationship.  In any event I will exclude it from the pool.  The wife has a car that is not the subject of any valuation.  The husband has a much older car likewise not the subject of valuation.  Additionally he owns two motorcycles and a boat which he estimates at a value of $5,000.  The parties’ chattels are not valued.  The husband’s superannuation as disclosed in his Financial Statement is $65,811 and that of the wife is $28,000.

Contribution

1. It is immediately obvious that the wife’s contribution to the parties’ only significant asset is overwhelming.  She always owned a property and it is the ownership of the successive properties that she has had that has enabled the parties to buy Property A.  Furthermore, albeit that it appears she resorted to deception to do so, she is the one who has taken out the entirety of the loan and she has also applied her $80,000 inheritance entirely to the development of the Property A property.  I have no hesitation in finding that the contribution of the parties should be assessed taken globally as 95 per cent to the wife and 5 per cent to the husband.  This is half of the range asserted on the husband’s behalf by counsel in final submissions given the duration of the relationship as I have found it.  It should be noted that any work done by the husband on the properties before Property A by the husband is well and truly offset by the provision from time to time of food and payment of utilities by the wife.

The Parties’ Future Needs

1. The wife suffers from a number of significant mental health difficulties and the husband is generally in unremarkable health.  Neither appear to have any great likelihood of significant future earnings.  Doing the best I can in what must be said to be a slightly sparse evidentiary landscape, I would assess their future needs as equal.

Conclusion

1. The wife’s emotion in final address was palpable.  She has contributed her prior savings and her inheritance to this property and would not now get those contributions back if the property is sold.  The husband impressed me as a smart alec who had considerably exaggerated such contributions as he had indeed made.  A 95 per cent division with 5 per cent to the husband with each party retaining their superannuation strikes me as being entirely just and equitable.

2. Nothing of any moment was said by the parties as to exactly when and how their superannuation had been garnered, but plainly it did not take place during the de facto relationship itself.  It is appropriate that each party retain their superannuation.

3. The position in respect of the parties’ chattels is entirely unclear and the only sensible order I can make is that each party retain what is in their possession.

4. I have drawn draft orders to give effect to these conclusions but will hear from the parties before finalising them.  It will be noted that I have adopted the wife’s valuation of Property A.  There is no valuation but the husband’s evidence makes it clear that it was the wife who handled financial matters, so it seems appropriate to accept her evidence.  The amount involved is in any event, in the scheme of things, minimal.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date:  3 September 2018