Newbury and Lennon

FEDERAL CIRCUIT COURT OF AUSTRALIA

NEWBURY & LENNON

[2016] FCCA 3474

Catchwords:
FAMILY LAW – Property proceedings.

Legislation:

Family Law Act 1975, ss.75, 79, 117, pt.VIIIAB

Cases cited:
Kennon (1997) CLR 92-757
Stanford & Stanford (2002) 293 ALR 70
Hickey & Hickey (2003) FLC 93 – 143
McLusky & McLusky (2014) FamCA 93
Todd & Todd (2014) FamCA 101
Adamson & Adamson [2014] FCCA 73
Bevan & Bevan [2013] FamCAFC 116
Hickey & Hickey(2003) FLC 93
Lee Steere (1985) FLC 91-626
Marriage of Lestere (1995) FLC 91-626
Marriage of Ferarro (1993) FLC 92-335
Marriage of Clauson (1995) FLC 92-592
Whinton & Whinton (2014) FamCA 102
Farnell [1996] FLC 92-681
Omacini [2005] FLC 93-218
Vass & Vass [2015] FamCAFC 51
Kowaliw [1981] FLC 91-093
Norbis [1986] FLC 91-712
Zyk & Zyk (1995) 19 FLR 7-97, FLC 92-644 at 82,515
Elford & Elford [2016] FamCAFC 45
Eufrosin & Eufrosin [2014] FamCAFC 191
Robb and Robb (1995) FLC 92-558, FAM CA 136

Applicant:

MS NEWBURY

Respondent:

MR LENNON

File Number:

NCC 1591 of 2014

Judgment of:

Judge Myers

Hearing dates:

9 September 2015, 10 September 2015,

29 March 2016, 30 March 2016,

31 March 2016.

Date of Last Submission:

9 June 2016

Delivered at:

Newcastle

Delivered on:

7 September 2016

REPRESENTATION

Counsel for the Applicant:

Ms Carr

Solicitors for the Applicant:

Gordon Jankov Solicitor

Counsel for the Respondent:

Ms Dharmaratne

Solicitors for the Respondent:

Ga Lawyers

THE COURT ORDERS THAT:

Within 42 days the husband pay to the wife the sum of $418,623.70.
Should the husband fail to make payment to the wife in accordance with order 1 above, the husband do all acts and things and sign all documents necessary to list the property situated at and known as unit Property G, Queensland for sale by private treaty with a real estate agent as agreed between the parties and failing agreement the husband shall nominate three real estate agents who operate a real estate agency in the (omitted) area within 8 weeks of the making of these orders and the wife shall thereafter select one of the agents nominated by the husband to act on the sale.
The husband shall pay the costs of preparing a contract for sale and any upfront advertising expenses or agent’s cost on the sale with such costs to be reimbursed to the husband on the sale of the Property G drive property.
The said property shall be offered for sale at a price as agreed between the parties and failing agreement the sum of $1,000,000.
Should the said property fail to have sold by way of exchange of unconditional contracts for sale within three months of the Property G property first being offered by sale by private treaty, the said property will be offered for sale by public auction on the first Saturday four months after the property was first offered for sale by private treaty.
The reserve price for the auction of the said property shall be as agreed between the parties and failing agreement at a price being 5% less than the price the said property was last offered for sale by private treaty.
Should the said Property G property fail to sell at the said auction the said property shall be offered for sale by public auction every fourth Saturday thereafter until the said property is sold and the reserve price of each subsequent auction shall be 2% less than the proceeding reserve price.
Upon the sale of the Property G drive property the proceeds shall be disbursed in the following order of priority:
a)Pay any agent’s commission on the sale;
b)Pay any rates, taxes or adjustments on the sale;
c)Pay to the husband an amount necessary to reimburse him for the costs paid on account of preparation of the contract for sale or agents advertising expenses or costs paid by him;
d)Pay of the remaining balance 42% to the wife and 58% to the husband;
e)From the wife’s share pay to the husband the sum of $1,376.30.
The husband shall be prevented by injunction from encumbering or otherwise dealing with the said Property G property and the wife shall be entitled pursuant to these orders to lodge and thereafter maintain a caveat over the said property pending payment to the wife pursuant to these orders.
Otherwise than as provided for in these orders each party shall be declared to be the sole beneficial owner of any property in that party’s name or standing in that party’s possession or in the case of a chose in action in which that party has an entitlement, including but not limited to real property, monies in bank accounts, motor vehicles, furniture or furnishings, superannuation, entitlements contingent or otherwise in any estate and the like as at the date of these orders.
Should either party refuse or neglect to sign any document, deed or real property necessary to give effect to these orders within 7 days of a written request to do so a Registrar of the Federal Circuit Court of Australia is empowered pursuant to section 106A of the Family Law Act 1975 1975 to execute such deed, document or real property transfer.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1591 of 2014

MS NEWBURY

Applicant

And

MR LENNON

Respondent

EX TEMPORE`REASONS FOR JUDGMENT

This is a decision in final property proceedings in the matter of Newbury & Lennon. The applicant wife, Ms Newbury, seeks orders as set out in her initiating application that provides:
(1)That within 28 days of the date of these orders, the respondent sign all documents and do all things necessary to transfer the Toyota (omitted) motor vehicle, licence plate number (omitted) to the applicant;
(2)That within 28 days of the date of these orders, the property at Property G, Queensland, currently registered in the name of the husband, be placed on the market with an agent appointed by the applicant and the property be sold for a price as agreed by the applicant, the proceeds of the property be distributed as follows:
(a)in payment of any mortgage as security against the total;
(b)in payment of the reasonable real estate agent and auctioneers fees and disbursements on the sale;
(c)in payment of the reasonable legal fees and disbursements of the sale;
(d)payment in the sum of $500,000 to the applicant;
(e)the balance to the respondent.
(3)The registrar of the court is appointed pursuant to section 186A and will, on request by the applicant, execute any current agency agreement, contract, transfer deed or instrument on behalf of the respondent, being any agency agreement, contract, transfer deed or instrument required to be signed by the respondent to give effect to these orders;
(4)That any assets not separately dealt with by these orders is and will remain the property of the party whose possession it is in or whose name appears on the title deed for the asset and at the date of this agreement, including land, superannuation, money, furniture and furnishings, insurance and personal effects.
The respondent husband, Mr Lennon, seeks orders as set out in his amended response namely:
(1)That the respondent husband shall pay to the applicant wife the sum of $10,000;
(2)That the applicant wife be declared to be the owner of all real and personal property, bank accounts, superannuation, motor vehicles and all other property of whatsoever nature and kind in the possession and control of the applicant wife at the date of these orders, free from any interest of the respondent husband, and shall indemnify the respondent husband in relation to any debts and liabilities as attached thereto;
(3)That the husband be declared to be the owner of all real and personal property, bank accounts, superannuation, motor vehicles and all other property of whatsoever nature and kind in the possession and control of the respondent husband as at the date of these orders, free from any interest of the applicant wife, and shall indemnify the applicant wife in relation to any debts and liabilities attached thereto;
(4)Except as specifically provided for by any paragraph comprising these orders, to contract each of the applicant wife and respondent husband release the other from any debts owing from one to the other.
By way of background, the husband was born in Australia on (omitted) 1951 and he was 64 years at the date of the hearing. The wife was born in (country omitted) on (omitted) 1967 and was 48 years at the date of the hearing. Both parties give evidence of having met while the husband was visiting (country omitted) in 2008. The husband suggests that he met the wife through a friend, and four days later he returned to Sydney. The wife gives evidence that she met the husband through a mutual friend and thereafter spent five days together and that, during that time, they stayed together in a hotel in (country omitted), slept together and had sex with each other.
The wife annexes to her affidavits two photographs she deposes were taken of the parties together during the five day period. The photographs depict the parties in poses where the husband had his arms around the wife. They look to be photographs of two people sharing mutual affection.
The wife gives evidence the husband purchased her a computer so that the party could stay in touch following the husband’s return to Australia. Both parties agree they kept in touch with one another via the internet. The wife gives evidence the husband returned to (country omitted) in (omitted) 2008, at which time the husband was introduced to the wife’s family.
It is apparent that in early to mid-2009 the wife travelled to Australia and stayed with the husband for three months. The wife deposes that during the three-month period the husband asked her to marry him and live in Australia. The wife deposes that she told the husband she would move to Australia and marry the husband if she was able to bring her daughter, X, born (omitted) 2001, who was then aged some seven or eight years, to which the husband agreed.
The husband gives evidence that in (omitted) 2010 the wife asked him if he would marry her and bring her to Australia on a fiancée visa. It is unimportant for the purposes of these proceedings to determine who asked who to marry them, where sometime between late April to early May 2010, the wife and her daughter X entered Australia on a fiancée visa.
As at May 2010, the husband was working as a (occupation omitted) for (employer omitted), earning somewhere between $1200 to $1600 dollars per week. The wife and X moved into what I will describe as the husband’s property at Property S. The wife gives evidence that the husband worked shift work from Monday through to Thursday night, and on those nights she would sleep in the bed with X, and on other nights she slept in the bed with the husband. The wife gives evidence of having woken at 5 am in the morning to make sandwiches for the husband and having cooked for the husband.
The husband suggests that the wife made friends at a local (nationality omitted) (omitted) store and worked at the (employer omitted) in May 2010 for no pay, so the wife could learn English. The wife gave evidence in cross-examination as to having worked at the (employer omitted), but having received $200 cash in hand per week for her work.
The parties give evidence of the wife obtaining employment doing (employment omitted) at a local (employer omitted), earning some $300 per week. The wife deposes to working at the (employer omitted) during the day and at the (employer omitted) between the hours of 4 pm and 6.30 pm, Mondays to Fridays.
The husband gave evidence that on (omitted) 2010 he purchased a lottery ticket in the Boystown lottery and that the husband had previously purchased lottery tickets. There was considerable cross-examination of the wife on the topic of whether the lottery ticket had been purchased by the husband by phone or over the internet. The evidence of Ms T, an employee at Boystown, suggests that the ticket was purchased via telemarketing over the phone. The court heard the husband and wife’s cross-examination at length about the purchase of the lottery ticket.
The husband’s evidence given during cross-examination was at times evasive and at other times appeared to make little sense. At page 186 of the transcript at line 35, the husband stated:
I never purchased a ticket from Boystown prior to the lottery win.
The husband was then asked further questions by counsel for the wife. Found at line 44 of the transcript as follows:
This was the first Boystown ticket you purchased?
To which the husband answered, “Yes.”
Page 187 of the transcript, at lines 4 onwards, records an exchange between the husband and counsel for the wife:
Counsel: Okay, Mr Lennon. So that I might be clear, is this the lottery win you had?
Husband: Yes.
Counsel: That was the first time you had entered into a lottery with Boystown?
Husband: The – the ‑ ‑ ‑
Counsel: Is that the first Boystown lottery you had entered? You bought a ticket with Boystown lottery. Is that the first occasion you had purchased a ticket with them?
Husband: “No.”
Counsel: Okay. So you had purchased previous tickets with them?
Husband: I’ve – I purchased previous tickets when I presented it to the court by my – by my document. It – of (omitted) bank account.
The husband’s evidence was simply unclear. The husband gave evidence that contradicted a statement made only moments prior.
On (omitted) 2010 the husband deposes he was contacted by Boystown and informed that he had won the first prize in the lottery. The husband deposes to telling the wife he had won, and thereafter spent some two hours explaining what had happened, including taking the wife to the (employer omitted) to have the win explained.
The letter to the husband from Boystown dated (omitted) 2010 explained the husband’s win was valued at $1,400,154 and consisted of an apartment Property G, Queensland; furniture and electrical appliances worth $62,545; Qantas travel vouchers valued at $14,000; and spending money of some $1000.
The husband suggests that the wife changed towards him upon being advised of the win where she became nice to him and told him they must set a wedding date immediately. The husband’s affidavit paints a picture of he and the wife being in what might be described as a very unhappy ordinary if not mediocre relationship, where the wife became intent on marrying him only after being appraised of the lottery win.
Lottery wins are an exciting thing and often of public interest. The husband was not somebody who was obliged to publicise the win. The husband did publicise the win in an article written in the magazine publication (“omitted”). Having heard the husband’s cross-examination, it is apparent that the (“omitted”) article was written following a telephone interview between the husband and a person from the (“omitted”) magazine. The article forms exhibit E in the wife’s affidavit and provides:
It Could Happen to You.
After years of trying, Mr Lennon finally struck gold. “Opening the letterbox, I plucked out the letter inside. I’d just returned home from my night shift working as a (occupation omitted) at (omitted) in (omitted), New South Wales. I had started there as a (occupation omitted) when I was 23, and despite the long hours, 36 years later at age 59 I still loved it. ‘Morning, my fiancée,’ Ms Newbury said, greeting me. It was (omitted) 2009 and I barely acknowledged her as I walked through the door, too engrossed in rummaging through piles of mail in my hand. ‘Why don’t you have your breakfast, then open your mail?’ Ms Newbury suggested. But I was too excited. I’d been buying $2 jackpot lottery tickets since 1985. I’d won $10 here and there, but I’d always wanted to win big and bag the jackpot prize, a luxury home. I’d inherited my family home, where I lived with Ms Newbury, 45, and her daughter, X, 7. It was a nice three bedroom home, yet I still longed for a holiday home. But being on a (occupation omitted) salary, there was no way I could ever afford it, especially with our wedding to pay for too. Suddenly my eyes bulged when I came across a letter with the lottery logo on it. ‘This is my lucky week,’ I cried, ripping it open. There was a cheque inside. My heart raced as I checked out the amount, then it sank as ‘Just a squiggly 10 measly bucks,’ I sulked. ‘Oh well, maybe next time.’ Everybody knew my yearning to win the lottery, and in January this year my mate Mr B told me about a bloke he knew who’d won a lottery unit through Boystown lotteries. ‘You should try it,’ Mr B said. The tickets cost $15, a bit more expensive than my regular $2 flutter, but the draws were only every five weeks. So when I registered as a member with Boystown Lifestyle lotteries, I limited myself to two tickets per draw. Come (omitted), I had not won a cent with Boystown, when a Boystown staff member rang. ‘Mr Lennon, do you want to buy a lottery ticket for the next lottery?” he asked. ‘Maybe not,’ I said, feeling miserable about not winning and thinking of the wedding we had to pay for. Just as I was about to hang up, a little voice inside my head urged me to have one more go. ‘Wait,’ I said. ‘I’ll buy one ticket.’ ‘Great. (omitted) is the next draw date,’ the representative told me. Days later, I received the ticket and brochure picturing all the prizes. The jackpot was a luxury home a stone’s throw from the beach. I swooned over the pictures. It was spectacular. ‘If only,’ I whispered under my breath. On (omitted) I came back home, absolutely beat after a 12 hour shift. I had an early start again that night, so I crawled straight into bed. I’d barely been asleep when the phone rang. Reluctantly, I got up to answer it, but by the time I’d reached it it had gone to voicemail. Five minutes later, it rang again. ‘Who is this?’ I snapped. “My name is Mr K. I’m calling from Boystown,’ the voice said. ‘I’m the general manager of fundraising.’ ‘Look, mate, I’m really tired,’ I replied. ‘You’ve won our first prize,’ Mr K said. I froze, silent. ‘Are you still there?’ he asked. ‘It can’t be true,’ I stammered eventually. ‘What’s the prize?’ ‘A unit,’ he replied. ‘How big?’ I asked. ‘Huge,’ he laughed. I jotted down a number he gave me to call if I had any questions. Thinking this was a joke, I called the number a few minutes later. ‘We’ve just emailed your prize details,’ Mr K said. ‘You can collect the keys whenever you want.’ Sure enough, in my inbox was an email confirming I was the winner of a unit in (omitted) on (omitted), Queensland. It was the same home I’d seen featured in the brochure. After darting about, pulling on trousers and a T-shirt, I raced to the (employer omitted) where Ms Newbury was working. ‘What’s wrong?’ she asked, worried when she saw the shocked look on my face. ‘We’ve won the lottery,’ I said excitedly. ‘What?’ she babbled. ‘Why aren’t you in bed?’ ‘We’ve won the lottery home,’ I persisted. ‘You must be dreaming,’ Ms Newbury said, giggling nervously. ‘I’m not dreaming. We’re millionaires,’ I cried. The prize package was worth $1,400,154, including more than $62,000 worth of furniture and a $14,000 travel voucher. Ms Newbury let out a squeal and jumped into my arms, kissing me. Leaving her to finish her shift at work, I drove back home in a daze. As soon as I heard X come home from school that afternoon, I went running to meet her. ‘Darling, we’ve won the lottery,’ I said. ‘Was it another $10?’ she asked. ‘No, we won our dream home,’ I replied. ‘What?’ she asked. ‘A very big home, too,’ I said, laughing. That evening I bought Ms Newbury carnations and surprised her with a tasty (omitted) takeaway. ‘You can retire now,’ Ms Newbury said. ‘But I love my job too much.’ Still, it was reassuring to know that no matter what happened, we had a secured future. We just need to go and sign some paperwork and the place is ours, I said. A week later Boystown flew the three of us from (omitted) to Brisbane and Mr K and the other members of the Boystown fundraising team greeted us at their office and took us for a tour of their charity services. Boystown run a kids helpline and work with children and young people who are in crisis. I feel like a celebrity, I said to Ms Newbury.
As the car pulled up outside our new pad, I stood there transfixed. This is beyond my wildest dreams, Ms Newbury said. It is all yours now, a representative said, handing us the keys. It was even bigger and better than the photos. The three-bedroom ground floor apartment had truly spectacular views. Ms Newbury and I stood on the front deck looking out at the ocean. This is heaven, Ms Newbury said with a sigh. We explored every room. Things just got better. They even have cutlery and washing up liquid, Ms Newbury said, rummaging through the cupboards after cupboard. So all we need now are our toothbrushes and swimmers, I laughed.
The following two months were a happy whirlwind as we excitedly prepared for our (omitted) wedding. What a perfect way to start married life, Ms Newbury said, with a dream home. We got married on (omitted) and after the ceremony I had a surprise for Ms Newbury. I have taken some time off work so we can start our dream life properly with a month-long honeymoon and our new home, I said. Ms Newbury quit her job at the (employer omitted) and our holiday coincided with X’s school holidays so she could come too. A week later, we flew to (omitted).
Nowadays I sit on the deck of my holiday home and have to rub my eyes to believe what I am seeing. Lottery luck has made my fortune. I have the perfect home, the perfect wife and the perfect life. Who would have thought this old (occupation omitted) would become a millionaire? It goes to show dreams can really come true.

The husband went on to accept in interview on the Channel 7 television program (omitted). The husband accepted in cross-examination that the TV program showed a scene of the husband and wife walking together on a beach with the words “we won” written in the sand. The Court does not accept the husband’s assertions that the party’s relationship was ordinary or unhappy at the time of the lottery win. The letter of the husband forwarded to the Department of Immigration dated 23 November 2010 forming exhibit F in the proceedings is further telling of the party’s relationship. The letter provides:
Dear sir/madam, I met Ms Newbury through a mutual friend, Ms Y, a travel consultant, at a dinner in (country omitted) on (omitted) 2008. Ms Newbury and I were travelling together on an organised tour to (omitted), (country omitted) and back to (omitted) on (omitted). After I returned, Ms Newbury was going on to (country omitted) and suggested that I joined her in seeing some more of (country omitted). During this trip we commenced a relationship and stayed together at the (omitted) in (country omitted) until my return to Australia.
Before turning to Australia, I purchased Ms Newbury a (omitted) notebook to enable us to talk online, which we continue to do so on a daily basis. I have also helped and to a small degree supported Ms Newbury financially by sending her an amount of money monthly. I returned to (country omitted) on (omitted) 2008 where Ms Newbury and I met in (country omitted) Airport and we travelled together to (omitted) and then on to (omitted) where I met her family.
Ms Newbury was granted a three-month holiday visa to Australia and arrived in (omitted) 2009 where she resided with me at my home at Property S. On (omitted) 2009, Ms Newbury and I announced our engagement, celebrating with my sister, Ms M, and friends. In (omitted) we travelled to Queensland to visit my sister and meet her family, where Ms Newbury was greeted and accepted as one of the family. Ms Newbury has also met many of my friends and family, both in (omitted) and in Sydney, and they have informed me they like her very much.
Ms Newbury and her daughter, X, returned to Australia on (omitted) 2010 and we settled back into my home in Property S. X commenced school on (omitted) at (omitted) School in (omitted). Ms Newbury and I were married at (omitted) Church in (omitted) on (omitted) 2010 surrounded by family and friends. We continue to reside in our current home together.
Following the lottery win, the parties married on (omitted) 2010 and thereafter honeymooned in the unit in Property G. In late 2010, the wife sought to establish a (business omitted) from the home in Property S. The wife gave evidence of having difficulties with local council approval as she did not have a (omitted). The wife subsequently obtained employment at the (omitted) in (omitted) working as a (occupation omitted) in early 2011.
The Court finds the parties’ relationship was an extremely happy one until the husband suffered a back injury at work in or about December 2010. The wife gave evidence that the parties’ relationship began to experience problems after the injury. The husband stopped work in early 2011 as a result of his injury and was retrenched in November 2012. The wife gave evidence of the husband starting to consume alcohol heavily after the back injury and of the husband perpetrating family violence upon her. The husband gave evidence of the wife having threatened him, including with a meat cleaver.
Having considered the evidence of the parties, the Court is unable to make a finding of who perpetrated family violence upon who. The complaints of both parties, however, fall well short of the Court making a finding that the parties’ contributions were made more arduous of a type referred to in the decision of Kennon (1997) CLR 92-757. In about late 2012, the wife left the home in Property S, moving in to stay with a friend in (omitted) for some 10 days. It was about that time the husband withdrew his sponsorship of the wife’s application for a permanent visa on spousal grounds.
The wife deposes to visiting upon one of the husband’s friends, Mr B, and in a conversation advised Mr B that if she and the husband could not live together, she would move out, but the husband could not keep everything. The wife deposes that Mr B made a telephone call and arrangements were made to meet with the husband at Mr B’s brother Mr G’s home. The wife deposes to entering into a deed with the husband at Mr G’s home. The deed that forms annexure G to the wife’s affidavit provides:
(omitted) (omitted), New South Wales, (omitted), 30 September 2012 Deed of Agreement.
This document serves as a deed of agreement between Mr Lennon and Ms Newbury, nee Newbury, known as Ms Newbury, to dissolve our marriage partnership and to agree to a financial settlement.
It has been agreed Mr Lennon will give $150,000 to Ms Newbury as full and total settlement. Ms Newbury has agreed to accept the $150,000 and has agreed not to make any further claim against Mr Lennon. Payment will be made by bank cheque on or before 10 October 2012. The cheque will be given to Ms D, who will contact Ms Newbury as soon as it has been received from Mr Lennon.
It is also agreed Mr Lennon will sign all immigration papers to enable Ms Newbury to gain full Australian citizenship. The agreement also has been made for Ms Newbury to collect her daughter’s and her belongings from Property S and not to return to this address. Collection of these belongings will take place between 9 pm and 10 pm 30 September 2012 in the presence of Mr G and Ms D.
The husband did not make to the payment of the wife and withdrew his sponsorship of the wife’s visa application. The wife returned to live with the husband for a short period of time and left again. The wife deposes to obtaining assistance from the (omitted) Women’s & Children’s Refuge and thereafter caused the refuge to write to the Department of Immigration, making application for permanent residency on the basis of domestic violence. The letter of the (omitted) Women's Refuge, dated 22 November 2012, provides:
To Department of Immigration and Citizenship, Partner, Permanent Processing Centre, Melbourne, GPO Box 241, Melbourne, Victoria, 3001.
Re Ms Newbury, application for permanent residency, declaration of family violence.
This declaration is in regards to the abovementioned Ms Newbury and her experience of domestic violence perpetrated against her by her husband, Mr Lennon. I, Ms C, manager of (omitted) Women’s & Children’s Refuge, declare the following to be true and accurate to the best of my knowledge and belief.
On 11 October 2012, Ms Newbury, contacted (omitted) Refuge seeking assistance for crisis accommodation and support due to ongoing domestic violence perpetrated against her by her husband, Mr Lennon. Ms Newbury described the abuse as verbal, giving detailed threats Mr Lennon has made against her to kill her, degrading comments and derogatory comments against her ethnicity.
Ms Newbury has also described three incidents of physical assault, including where Mr Lennon put his hands around Ms Newbury’s throat and choked her, and also when he displayed intimidating behaviour such as destroying property and throwing items around their home at Property S, New South Wales (September 2011, February 2012 and September 2012).
Ms Newbury was assisted by her then current employer, Ms J, from the (omitted) to engage with (omitted) Refuge and has supported Ms Newbury through the impacts of the abuse. On this occasion, Ms Newbury decided not to enter into accommodation at (omitted) Refuge and returned to the matrimonial home with the hope that Mr Lennon would change his behaviour towards her.
On 1 November 2012, Ms Newbury contacted (omitted) Refuge seeking crisis accommodation as domestic violence perpetrated by her husband had increased. Ms Newbury stated to the case worker at the refuge that she was fearful and he was going crazy, referring to the behaviour of her husband, Mr Lennon. Ms Newbury was accepted into accommodation at (omitted) Refuge on this day.
(omitted), New South Wales Police assisted Ms Newbury to leave her residence and have been involved previously in relation to domestic violent. Police event number (omitted), Constable B. Queensland Police have also been contacted by Ms Newbury during a holiday she took with her husband and daughter X, X, in (omitted) 2012 due to Mr Lennon’s aggressive behaviour towards her.
During her stay at (omitted) Refuge, Ms Newbury has been provided with domestic violence education and has since described abusive behaviours perpetrated against her by Mr Lennon. These include controlling behaviour, financial control and restrictions and sexual abuse relating to manipulation and harassment. Ms Newbury did not know that these behaviours of Mr Lennon were also abusive and unhealthy.
On 8 November 2012, Ms Newbury decided she cannot return to the relationship as a result of domestic violence and for the wellbeing of and safety of herself and her 11 year old daughter, X. X has been exposed to domestic violence perpetrated against her mother by Ms Newbury by Mr Lennon. She has disclosed to staff and to her mother that she does not want to return to live with Mr Lennon and is fearful for herself and her mother.
X has described to staff that she would hear the arguments from her room at night and is able to describe incidents of her mother being choked and threats made against her by Mr Lennon. X is settled into and currently attending (omitted) Primary School and is a high-achieving student.
Ms Newbury has described the relationship with her husband has healthy and happy in the beginning when they originally met in (country omitted) in 2008. She stated to staff the abuse arose after Mr Lennon was required to leave work due to a back injury in 2011.
Ms Newbury believes that Mr Lennon has alcohol consumption abuse problems and relates this to the heightened aggressive behaviour and incidents of abuse perpetrated by Mr Lennon. Mr Lennon and Ms Newbury won a house package through Boystown Raffle in Queensland 2012. Attached is a newspaper article of Mr Lennon being interviewed and stating the relationship was healthy and happy before Ms Newbury and Mr Lennon had wed.
During the relationship, Ms Newbury suffered deep sleep deprivation at the hands of Mr Lennon. She would often be kept awake by him late at night and into the early hours of the morning. This lack of sleep was impacting upon her health and ability to work. Since coming to (omitted) Refuge, Ms Newbury has stated she is feeling healthy and able to sleep well and thereafter has the energy to work and enjoy each day. Staff have observed Ms Newbury to be more energetic, engaging and confident within herself since her few days at the refuge and since leaving the relationship.
Ms Newbury is visibly smiling and laughing now as opposed to being visibly upset as previously. She has taken good care of herself and her daughter’s wellbeing since leaving the relationship. (omitted) Refuge will assist Ms Newbury to find alternative accommodation that is safe and affordable for herself and her daughter.
Ms Newbury has engaged in counselling through (omitted) health since coming to the refuge to assist with the trauma and impact of domestic violence. Ms Newbury wishes to enrol in English classes in 2013 at the local TAFE. Ms Newbury is currently working at the (employer omitted) and staff are assisting Ms Newbury to obtain assistance with the Department of Human Services, Centrelink to supplement her income until Ms Newbury is settled.
Ms Newbury would also like to volunteer at local charities such as (omitted) and (omitted) to give back to the community. Ms Newbury has been pre-approved for crisis payment through the Department of Human Services. The department and social workers have confirmed the domestic violence and Ms Newbury’s inability to return to her previous residence due to this violence.
Ms Newbury and X wish to remain in Australia as X is settled and excelling in school and would struggle if they were to return to (country omitted) schooling as she has forgotten how to write (language omitted). X and Ms Newbury have established a strong support network and have grown accustomed to the Australian culture and society since arriving in 2010.
I, Ms C, support Ms Newbury’s application for permanent residency under the domestic violence provisions for visa applicants. I thank you for taking the time to review this application, and if you require any clarify or further information regarding this matter, please do not hesitate to contact me on the above number.
Signed under the hand of Ms C, kind regards
On 21 September 2013 the wife was advised in writing by the Department of Immigration that her visa had been granted. The husband deposes that in January 2013 he was contacted by the wife’s solicitor, Lawlers, but that no agreement was reached with respect to a property settlement. The wife gives evidence that in early 2013 she felt pressured from her mother to reconcile her relationship with the husband, and held discussions with her husband about reconciling.
The wife deposes that she reconcile with the husband in April 2013, but only lived in the home in Property S with the husband from Friday afternoon until Monday morning each week. The husband deposes that in May 2013 the wife came back and stayed in a separate room at the Property S property for one or two nights a week for about two months. The wife deposes that the husband agreed to pay her legal costs with her solicitor in the amount of some $5000.
The wife deposes that in (omitted) 2013 she travelled with the husband to clean the Property G unit. The husband agreed in cross-examination that the renting out of the unit was at the suggestion of the wife. Both the parties agreed that about that time the wife began to ask the husband to place the unit into joint names.
The parties agreed that in (omitted) 2013 they travel with X to (country omitted) for a holiday and that the husband pay the costs of that holiday, including the airfare and accommodation. The husband suggested during the holiday the wife said to him words to the effect “I only married you to come to Australia. Now I have permanent residency, the only thing left to do is to take your property, which is simple as giving a solicitor papers with instructions. You should go to (country omitted) or (country omitted) and find a new girlfriend.”
The wife denies such statements and deposes she had no reason to say those things as she was seeking to reconcile their relationship and get things back on track. The husband deposes that after the alleged conversation he then took a trip to (country omitted) in around (omitted) 2013 for six months, as he was concerned for his safety in Australia where the wife had threatened to obtain an AVO against him.
The husband deposes the wife returned items from the Property S property including his father’s gold nugget, a solid gold ring, large diamonds, sapphire ring together with other household items. The husband further deposes that the wife left her motor vehicle at the Property S property.
At the commencement of the relationship the husband deposes he had the following assets:
·Toyota (omitted), $10,000.00;
·Trailer, $50.00;
·Furniture, $1000.00;
·(omitted) bank account, $5000.00;
·Superannuation, $191,000.00;
·(omitted) shares, $2636.62,
·(omitted) shares, $80.00;
·(omitted) shares, $715.50;
·(omitted) shares, $1349.04;
·(omitted) shares, $352.50.
Liabilities:
·(omitted) credit card, $2000.00;
·(omitted) bank credit card, $10,000.00.
The husband suggests at the commencement of their relationship the wife had a bank account with (omitted) Bank, being a bank in (country omitted), and that the husband had witnessed the wife deposit $3000 into an account with that bank. The wife deposes that she had no savings and no liabilities and, in effect, had no time, so she had no property at the time she came to Australia.
The husband deposes that in (omitted) 2013 he sold his shares in (omitted). The husband deposed to having the following assets and liabilities at the time of the hearing.
·Property G, Queensland, $1,000.000.00;
·Toyota (omitted) at $4,500.00;
·(omitted) Motorbike, $4500.00;
·Trailer, $50.00;
·Furniture, $500.00;
·(omitted) bank account, $427.17;
·(omitted) bank account, $1250.25,
·(omitted) bank account, $162.00;
·(omitted) bank account, $80.37;
·(omitted) Bank account, $60.00;
·(omitted) bank account, $65.00;
·Superannuation ((omitted) and (omitted)), $99,336.88;
·(omitted) shares, $90.74;
·(omitted) shares, $5760.00;
·(omitted), $1839.10;
·(omitted) shares, $473.00
Liabilities:
·Credit card, $5869.00;
·Tax liability 2014, $2500.00;
·Tax liability 2015, $3500.00.
The husband deposes that the wife had a Toyota (omitted) registered in her name that he bought in 2011 for $2800 when she obtained her drivers licence.
The husband deposes that he lives in the property at Property S. The property is registered in the name of his late grandfather, Mr T. It’s the husband’s evidence that his late grandfather died in 1955, and his estate had not been administered. The Property S property was valued on 10 October 2015 at $260,000.
It is the husband’s evidence that he and his sister are the ultimate beneficiaries of the Property S property, where his cousins do not make a claim against the estate. The husband deposes to the existence of an agreement between he and his sister that has allowed him to live in the Property S property since his late mother’s passing in (omitted) 1999. It is the husband’s evidence he has lived in the property without making any rental contributions to his sister for the half share of the house and that when the property is transferred into his and his sister’s name he will have to pay his sister an amount according to the agreement for rent for her share of the property.
It is the husband’s position that up until February 2013 the amount owing to his sister was $140,582.25. The husband alleges further money is owed to his sister for rent for the period between March 2013 to date. However, at the time of the hearing the amount owing had not been calculated.
The husband deposes at paragraph 72 of his affidavit that based on the value of the property at $260,000 the husband and his sister’s entitlement in the property is worth $130,000 each. However, as at February 2013 the husband suggests he owes his sister $140,582.25. The husband annexed a copy of an agreement dated 5 May 2009 to his affidavit. It forms annexure A. The husband suggests that as at July 2015 he owes his sister $178,590.35 with $150 per week in rent continuing to accrue. The husband suggested the accrued rent owing to his sister equates more than half his entitlement in the property. The husband suggests he has no interest in the Property S property, and that he will have to pay an additional amount to his sister in addition to transferring the entire Property S property into her name.
The court does not accept the husband’s sister as having any legal basis to make a claim against the husband, noting specifically the property remains in the name of the husband’s late grandfather. The property has not vested in the name of the husband or the husband’s sister. On that basis the court rejects the claim made by the husband’s sister.
These are proceedings governed pursuant to section 79 of the Family Law Act 1975 and generally Part VIII of the Family Law Act 1975. In the case of Stanford & Stanford (2002) 293 ALR 70, the High Court at paragraphs 78 and 79 considered the matter in which the court should approach and determine property proceedings, and held:
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 court has historically determined property proceedings in accordance with its well-established principles set out in Hickey & Hickey (2003) FLC 93 at 143, embarking upon a four-step process. The first step requires the court to identify and value assets, liabilities and financial resources of the parties at the time of the hearing. The second step requires the court to consider the parties’ contributions and consider any adjustment that should be made between the parties. The third step requires the court to consider the actual circumstances of the parties and to make adjustment for those circumstances, considering a variety of factors set out at section 75(2) of the Family Law Act 1975. The last step, step 4, requires the court to satisfy itself as to the actual effect of the orders being just and equitable.
In the Full Court decision in Bevan & Bevan, the Full Court considered the decision in Stanford and the implications of that decision when looking at the four-step approach taken by the courts. Bryan CJ and Thackray J held at paragraph 59:
Prior to Stanford, property applications were commonly dealt with by reference to what the trial Judge called “a four stage process”. This process was described at paragraphs 31 and 32 of his Honour’s reasons. The jurisprudential basis for the process was well established – see the line of cases cited in Hickey & Hickey.
The four-step process involves the identification and valuation of the property of the parties; identification and evaluation of the contributions of the property, including property no longer owned by the parties; identification and assessment of the various matters set out at section 75(2); considerations of matters of justice and equity.
Although the four step process has been regularly applied, the Full Court has stressed it is no more than a means to an end, since the statutory obligation is to alter existing interests only if it is just and equitable to do so. Thus, in Norman & Norman [2013] FamCAFC 116, Finn, May and Murphy JJ said:
It is the mandatory legislative imperative (to reach a conclusion that is just and equitable) that drives the ultimate result. For all its usefulness and merit as a “disciplined approach” or a “structured process of reasoning”, the “three-step” or “four-step” approach merely illuminates the path to the ultimate result.
To like effect, in discussing the four step approach in our joint judgment in Martin & Newton, we said that the approach is not legislatively mandated, and the Full Court in Hickey said it is simply the preferred approach. This is because it will be sufficient, in most cases, to have regard to the overall justice and equity of the orders after determining the asset pool, consideration of contributions and assessment of the relevant section 75(2) factors.
But in our view, there is no requirement that the justice and equity of orders as prescribed by section 79(2) must only be considered at the fourth and last stage. In our view, the requirement to make an order that is just and equitable permeates the entire decision making process, and it is not impermissible to consider it at an earlier point if the particular case requires it. We consider this is such a case.
What is clear from the case law is that the four-step approach, whilst not legislatively mandated, continues to be adopted by the courts when determining applications under section 79 of the Family Law Act 1975 for adjustment of property interests, as it is a means by which the court is able to illuminate a pathway towards a result that is just and equitable. The approach is well-established in authorities; in that regard, see the cases In the Marriage of Lestere (1995) FLC 91-626; In the Marriage of Ferrero (1993) FLC 92-335; In the Marriage of Klausen (1995) FLC 92-595; in the case of Whinton & Whinton (2014) FamCA 102, where Johnston stated:
In our view, it will be less likely that a separate issue arises under section 79(2) and (4) will be conflated if judges refrain from evaluating contributions and other relevant factors in percentage or monetary terms until such time as they have first determined that it would be just and equitable to make an order.
This is a case where the assets of the parties are not divided evenly between them, and the court takes the view that in this case, the court ought to make a finding as to whether it is just and equitable to make an order accordingly when identifying, according to the ordinary common law and principles of equity, the existing legal and equitable interests of the parties.
In Stanford, the High Court suggested that 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 a result of a choice made by one or both of the parties the husband and wife are no longer living in a matrimonial 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 a common use of property by the husband and wife. This is one of those cases. The court finds that it is just and equitable to make a property settlement order adjusting the parties’ property interests.
During the hearing the court will sometimes utilise the evidence of experts, such as valuers, agreements between parties or the making of findings upon the evidence presented or identify the value of the properties, liabilities and financial resources.
The husband conceded during the course of the hearing that he expended some $111,829 in legal fees paid from his superannuation. Noting the intent of section 117(1) with respect to each party paying their own legal costs and the decision in Farnell [1996] FLC 92-681 and Omacini [2005] FLC 93-218 and Vass & Vass [2015] FamCAFC 51, the Court finds the husband’s legal costs paid from his (employer omitted) superannuation should be added back as a notional asset to the pool of assets available for distribution.
The Court accepts the husband and his sister have a 50 per cent entitlement each in the Property S property. Counsel for the wife suggested the husband’s sister’s entitlement had, in effect, been extinguished by virtue of the husband’s adverse possession of the property. The evidence of the husband and his sister to the effect that the husband has continued to reside at the property subject to an agreement, in the view of the Court, defeats the suggestion of counsel for the wife in that while the husband was in occupation, it was with the consent of his sister. The Court finds that the husband has a one-half interest in the property at Property S, worth $130,000.
Counsel for the wife, in respect of the husband’s expenditure of his superannuation, submits the husband has wasted funds that would have otherwise been available by acting recklessly, negligibly or wantonly with the matrimonial assets and should be taken into account pursuant to section 75(2)(o) or otherwise added back. The Court has considered the argument of counsel for the wife. In the decision of Kowaliw [1981] FLC 91-093, the Full Court of the Family Court held that the financial losses incurred by the parties or either of them in the course of their marriage should be shared by them, although, not necessarily equally unless one of the parties has embarked upon a course of conduct designed to reduce the value of the asset or where one of the parties has acted recklessly, negligently or wantonly with the assets, causing reduction or minimisation of the value. This is often regarded as or referred to as waste.
The Court determines that there is insufficient evidence to make a finding that the husband’s expenditure of his superannuation funds ought to be taken into account pursuant to section 75(2) or otherwise added back as a notional asset where the Court is unable to find that the husband has embarked upon a course of conduct designed to reduce the value of his superannuation or has otherwise acted recklessly, negligently or wantonly with the asset.
Both counsel for the wife and counsel for the husband suggest the Court should adopt a two pool approach. The Court adopts a two pool approach having regard to the decision in Norbis [1986] FLC 91-712. The Court considers the argument made by counsel for the wife and counsel for the husband in respect of the Boystown lottery win. The leading case with respect to lottery wins is that of Zyk & Zyk (1995) 19 FLR 7-97. In that case, the parties had been married for two years when the husband had a lottery win. The wife had no involvement in the lottery ticket purchase. The winnings were used for joint purposes. The Full Court, comprising Nicolson CJ, Fogarty and Baker JJ said at 808:
In our view, the critical question is by whom is the contribution made? In the ordinary run of marriages, a ticket is purchased by one or other of the parties from money which he or she happens to have at the particular time. The fact should not determine the issue. Where both parties are in receipt of income and where their marriage is predicated upon the basis of each contributing their income towards the joint partnership constituted by their marriage, the purchase of the ticket would be regarded as a purchase from joint funds in the same way as any other purchase within that context and would be treated accordingly. (See Anastasio in the marriage of Anastasio). Where one party is working and the other party is not, the same conclusion would ordinarily apply because that is the mode of partnership selected by the parties. The income of the working member is treated as joint in the same way as the domestic activities of the non-working partner are regarded as being for their joint benefit.
However, the Court then went on to say:
There may be cases where the parties have so conducted their affairs and so expressed their intentions that it would not be an appropriate conclusion. But in the generality of cases with which the Court would normally deal, this appears to us to be the correct approach and the correct outcome.
It is clear from Zyk that in cases where the parties are making contributions, even if one is not working, the purchase of a lottery ticket or winning ticket will not make the subsequent win the contribution of the ticket purchaser.
In Elford & Elford [2016] FamCAFC 45, delivered 29 March 2016, the Full Court comprising Bryant CJ, Murphy and Cronin JJ dismissed an appeal of a wife who sought that property orders made by Judge Roberts in the Federal Circuit Court be set aside where the wife had received just over 10 per cent of the asset pool after a nine year relationship a feature of which was the husband’s receipt of a lottery win one year into the relationship. The Full Court noted the decision in Zyk & Zyk [1995] FLC 92-644 at 82,515 where the Full Court stated:
Where both parties are in receipt of income and where their marriage is predicated upon the basis of each contributing their income towards the joint partnership constituted by their marriage, the purchase of from joint funds in the same way as any other purchase within that context would be treated ordinarily.
However, the Full Court went on to say in the same case:
There may be cases where the parties have so conducted their affairs and/or so expressed their intentions that this would not be the appropriate conclusion.
The Full Court in Elford also referred to the decision of Eufrosin & Eufrosin [2014] FamCAFC 191 in which the Full Court stated:
The source of funds should not determine the issue of how a lottery win should be treated for section 79 purposes. What is relevant, in our view, is the nature of the parties’ relationship at the time the lottery ticket was purchased.
The Full Court went onto state in Elford:
In my view, it is not the nature of the parties’ relationship at the time the lottery ticket was purchased that sets this case apart from so many decided lottery winning cases. It is also the manner in which the husband and wife conducted their financial affairs after those winnings were received by the husband. Those winnings were placed into an account in the husband’s sole name and that is where they remain to this day. The parties also kept all their other finances separate for the entirety of their relationship. But it was submitted by the wife before us that the trial judge inappropriately applied the decision in Zyk & Zyk and Eufrosin & Eufrosin by giving undue weight to the financial aspect of the purchase of the ticket and financial relationship of the parties rather than joint endeavours. In addition to noting that the lottery moneys had been retained separately along with a further $190,000 the husband received in 2007 through an inheritance from his mother’s estate, his Honour said the parties clearly kept their assets quite separate and it is also clear that, to a very large degree, they kept their finances quite separate. They maintained separate bank accounts and they did not ever have joint bank accounts. Indeed, when the wife was cross-examined, she said that was always his request. What accounts he had were his and he never wanted to have joint accounts.
His Honour accurately recorded and understood the wife’s central contentions as to the lottery win. In her affidavit the wife said, “The husband claims that this lottery win comprises his sole contribution. I claim it is a joint contribution made during the period of our relationship.” She was asked in cross-examination how it could be considered to be a joint contribution and her answer was, “Because we were in a relationship.” When questioned further, she conceded she did not contribute financially towards the purchase of the ticket, she did not pick the winning numbers, the husband had been buying weekly tickets with those numbers since 1995, she and the husband had been in a relationship for less than a year when his ticket was a winner, the winning ticket had been in the husband’s sole name and the funds had been paid into the husband’s bank account. His Honour also found that the husband never intended the weekly purchase of a lottery ticket to be joint matrimonial property and said in this case the husband did not hand all of his money to the wife, nor did she have practical control of the family finances.
In Zyk and Zyk, the parties had been married for two years when the husband had a lottery win of $95,000. He had been in a syndicate before the marriage and the wife had no involvement in the lottery ticket purchase but the winnings had been used by the parties for their joint purposes. The trial judge found that it was part of the husband’s general practice to hand over his money to the wife who had practical control of the family finances and the lottery tickets were purchased by the husband from money he had from time to time. The trial judge found that upon the husband handing the money to the wife, she applied it so it formed part of the joint property. The Full Court said it was preferred to approach the issue as one of contribution rather than as windfall because the latter tended to isolate the assets into a special category outside traditional approach adopted by section 79.
Picking up on the point made in Zyk and addressing a community of property concept, the Full Court said ….. the source of funds should not determine the issue of how a lottery win should be treated for section 79 purposes. What is relevant, in our view, is the nature of the parties’ relationship at the time the lottery ticket was purchased. In our view, the authorities cited, together with that said by the High Court in Stanford regarding the common use of property, is sufficient to dispose of the husband’s contention that her Honour had erred in failing to find that he contributed to the wife’s lottery win. At the time the wife purchased the ticket, regardless of the source of the funds, the “joint endeavour” that had been the parties’ marriage had dissolved and there was no longer a common use of property. Rather, the parties were applying funds for their respective individual purposes.
The Court has considered the evidence surrounding the nature of the husband and wife’s relationship, particularly taking into account the information offered by the husband to the Department of Immigration in support of the wife’s visa. The parties were, at the time of the lottery win, living as a de facto couple. They were engaged to be married. Both were working and contributing towards the relationship. The husband was contributing more financially. The wife was contributing more in her role as homemaker.
The husband had spoken to the wife about purchasing the lottery ticket. The win was one celebrated by both parties. It was one used jointly by the parties in that the property was not initially rented out. They used it collectively for their holidays. The Court finds at the time of the win the parties regarded it as their win. The short video clip of the writing in the sand found at the end of the Channel 7 story on (omitted) best encapsulates the position of the parties where it stated “we won”. The Court accepts the argument advanced by counsel for the wife that the unit at Property G is an asset of the parties and one to be included in the assets available for division between the parties.
The Court finds the following assets and liabilities:

Pool 1

ASSETS	POSSESSION	VALUE
Property G, Queensland	Husband	$1,000.000.00
TOTAL ASSETS	$1,000.000.00
TOTAL NET VALUE	$1,000.000.00

Pool 2

ASSETS	POSSESSION	VALUE
Property S	Husband	$130,000.00
Motor vehicle, Toyota (omitted)	Husband	$4,500.00
(omitted) Motorbike	Husband	$4,500.00
Furniture at (omitted)	Husband	$500.00
Furniture at Property G, Queensland	Husband	$3,000.00
(omitted) bank acc: (omitted)	Husband	$211.00
(omitted) Bank acc: (omitted)	Husband	$80.00
(omitted) Bank acc: (omitted)	Husband	$162.00
(omitted) bank acc: (omitted)	Husband	$427.00
(omitted) bank acc: (omitted)	Husband	$1,250.00
(omitted) bank acc: (omitted)	Husband	$65.00
(omitted) shares – 698 shares @ $5.70	Husband	$3,979.00
(omitted) shares – 530 shares	Husband	$1,839.00
(omitted) shares – 1600 shares @ $3.22	Husband	$5,760.00
(omitted) shares – 3155 shares	Husband	$473.00
(omitted) acc: (omitted)	Wife	$500.00
Furniture at Property S	Wife	$500.00
TOTAL ASSETS	$157,746.00

ADD BACKS

Husband

$111.829.00

ASSETS	POSSESSION	VALUE
Superannuation – (employer omitted)	Husband accumulated interest	$11,629.00
(omitted) Superannuation account	Husband	$2,164.00
(omitted) accumulation fund	Wife	$8,345.00
(omitted) life policy redemption	Husband	$65,115,067.00
Total superannuation	$128,860.00
TOTAL ASSETS	$398,435.00

Pool 1

In respect of pool 1 the court accepts the parties contributed equally towards the same and it was the product of a lottery win. Neither party made financial contributions greater than the other of the type referred to at section 79(4)(a). Similarly, taking into account non-financial contributions referred to at section 79(4)(b), neither party made a greater contribution than the other. The court accepts the evidence of the wife with respect to her undertaking home-maker duties greater than those of the husband during the party’s short marriage. The court allows contributions as to 48 per cent to the husband and 52 per cent to the wife.
The court considers the orders will have no effect on the party’s earning capacity. The court considers those matters set out at section 75(2). The court considers the age and state of health of the parties. The husband is aged 64, the wife is aged 48. The husband has a bad back, bad shoulders, a heart stent, diabetes and requires a knee reconstruction. The court considers the income and property financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment. The wife is able to work. The husband has a back injury which precludes him from doing the same.

The court notes the income derived by the wife from her employment and otherwise the husband’s payment from what has been a Worker’s Compensation payment as a result of his injury. There is no child of the parties’ relationship under the age of 18 years. The court notes the commitment of the parties necessary to support themselves and a child the mother has a liability to support, namely the wife’s child, X. The court notes the wife is in receipt of a family tax benefit. The court is of the view that the parties will be able to maintain a reasonable standard of living whether the court makes the orders sought by the husband or by the wife.
The court notes that if the court makes the orders proposed by the court the parties will maintain a reasonable standard of living. If the court makes the orders sought by the husband the wife would not be able to maintain a reasonable standard of living. The duration of the marriage was short and did not affect the parties’ earning capacity. Neither party is cohabiting with another party. Neither party provides child support.
The court considers the decision in Robb and Robb (1995) FLC92-558.
In this matter the wife had the child, X. The husband was under no obligation to maintain her. He had no legal duty to maintain her. The court finds that the husband did provide for X and in doing so the court should take into account that provision pursuant to section 79(2)(o) of the Family Law Act 1975 1975. There are no financial agreements that bind the parties. There are no Part VIIIAB financial agreements that bind the parties. The court finds an adjustment having regard to section 75(2) factors as to 60 per cent to the husband and 40 per cent to the wife.
The court finds in respect of pool 1, being the unit at Property G, an overall adjustment of 42 per cent to the wife and 58 per cent to the husband. The court considered section 79(2) and finds when stepping back and looking at the effect of the orders proposed it is not just and equitable to make a further adjustment between the parties. The court, therefore, finds as to the pool 1 valued at $1 million the husband shall receive $580,000 and the wife $420,000.

Pool 2

In respect of pool 2, the court considers the financial contributions set out at section 79(4)(a). It is not a disputed fact that the husband had assets and the wife had little if none at the commencement of the relationship. Both parties worked during the relationship up until the time of the husband’s injury, at which time the husband received Worker’s Compensation payments. Neither party made non-financial contributions of the type referred to in section 79(4)(b). The wife made a larger contribution by way of homemaker than that of the husband during the party’s short relationship.
The court finds 88 per cent to the husband and 12 per cent to the wife based on contributions. The court finds the proposed orders will have no effect upon the earning capacity of the parties. The court considers those matters set out at section 75(2). The court considers the age and state of health of each of the parties. The husband is 64 years of age and the wife is 48 years of age. The husband has a bad back, bad shoulder, a heart stent, diabetes and requires a knee reconstruction. The court considers the income, property and financial resources of each of the parties and the physical and mental capacity of them to apply for appropriate gainful employment.
The wife is able to work. The husband’s back injury precludes him from doing the same. The court notes the incomes with respect to the wife’s employment, the money she receives from Centrelink by way of family tax benefit and otherwise the husband’s receipt of money from Worker’s Compensation. The court notes that there is no child of the parties’ relationship under the age of 18 years. The court considers the responsibility of the wife to provide for X.
The court considers the wife is in receipt of a family tax benefit. The court considers that the parties will be able to maintain a reasonable standard of living if the court makes the orders contemplated by the court. The court considers that the duration of the marriage was short and did not affect the earning capacity of the parties. Neither party is cohabitating with another party. Neither party has to pay child support. Again, the court considers what the court might describe as the husband’s counselling support of X and the decision in Robb and Robb (1994) FAM CA 136.
There is no financial agreement binding upon the parties. There is no part VIIIAB financial agreement binding upon the parties. The court finds an adjustment for section 75(2) factors as to 60 per cent to the husband and 40 per cent to the wife. The court finds in respect of pool 2 an overall adjustment of 98 per cent to the husband and two per cent to the wife. The court considered section 79(2) and finds that when stepping back and looking at the overall effect of the orders it is not just and equitable to make a further adjustment between the parties.
The court, therefore, finds as to pool 2 valued at $398,435, $7968.70 to the wife and $390,466.30 to the husband. The wife currently holds property worth $9345 that would thus require the wife to make a payment to the husband in the sum of $1376.30. The court, therefore, makes the following orders taking into account the adjustment to the parties’ property between pools 1 and 2.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Myers

Date: 26 April 2017

[2016] FCCA 3474

7 September 2016

Key Legal Topics

Areas of Law

Family Law

Property Law

Equity & Trusts

Legal Concepts

Injunction

Costs

Remedies

Constructive Trust

Fiduciary Duty