Ngueng & Yancey
[2021] FedCFamC2F 255
•28 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ngueng & Yancey [2021] FedCFamC2F 255
File number(s): LNC 216 of 2020 Judgment of: JUDGE TURNBULL Date of judgment: 28 October 2021 Catchwords: FAMILY LAW – property settlement – short marriage of approximately 6 years – disagreement as to the length of the marriage – contributions – where significant financial disparity between the parties – wife spent 15 months of 6 year relationship overseas – wife made significant homemaking contributions – husband made overwhelming financial contributions – global assessment of assets in short marriage
EVIDENCE LAW – Blatch v Archer – Jones v Dunkel – determination as to whether loan exists – determination as to whether debt remains outstanding on the basis of purported loan – purported creditor not called to give evidence
Legislation: Family Law Act 1975 (Cth), ss 79(1), 79(2), 79(3), 75(2)
Evidence Act 1995 (Cth), ss 140, 164(1), 69
Cases cited: Australian Securities and Investments Commission v Rich (2009) NSWSC 1229
Beck & Beck (1983) FLC 91-318
Blatch v Archer (1774) 98 ER 969
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Clauson & Clauson (1995) FLC 92-595
Coghlan & Coghlan [2005] FamCA 429
Dawes & Dawes [1989] FamCA 71
Dickons v Dickons (2012) FamCAFC 154
GBT & BJT [2005] FamCA 683
Hickey & Hickey& Attorney-General for the Commonwealth of Australia [2003] FamCA 395
Jabour & Jabour [2019] FamCAFC 78
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Lane & Wharton [2010] FamCA 18
Lavell & Lavell (2012) FamCA 34
Lotta & Lotta [2017] FamCA 916
Marsh & Marsh [2014] FamCAFC 24
Mitchell & Mitchell (1995) FLC 92-601
Norbis & Norbis [1986] HCA 17; 161 CLR 513
Pandelis & Pandelis [2018] FamCAFC 66
Stanford & Stanford (2012) 247 CLR 108
Wallis & Manning (2017) FamCAFC 14
Division: Division 2 Family Law Number of paragraphs: 242 Date of hearing: 3 August 2021 Counsel for the Applicant: Ms K Mooney Solicitor for the Applicant: Friend & Edwards Counsel for the Respondent: Mr G Tucker Solicitor for the Respondent: Walsh Day James Mihal Pty Ltd ORDERS
LNC 216 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS NGUENG
ApplicantAND: MR YANCEY
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
28 OCTOBER 2021
THE COURT ORDERS:
1.That within 60 days of the date of this order the Husband pay the Wife the sum of $80,552.67;
2.That within 30 days of the date of this order the Wife do all acts and sign all such documents to withdraw the caveats lodged by her over the Husband’s properties, including providing to the Husband’s solicitors all documentation and remuneration necessary to effect the removal of those caveats;
3.That within 60 days of the date of this order the Husband pay the Wife the sum of $2,640.00, being the Husband’s share of the valuation fees as agreed;
4.That orders 4(a) to 4(e) inclusive are binding on the trustee of B Superannuation Fund (‘Superannuation Fund’);
(a)That a superannuation splitting order be made in relation to the interest of the Respondent Husband in the Superannuation Fund;
(b)That in accordance with section 90XT(4) of the Family Law Act 1975 (Cth), the base amount of $30,416.00 be allocated to the Applicant Wife out of the interest of the Husband in the Superannuation Fund (Base Amount);
(c)That whenever a splittable payment in respect of the superannuation interest of the Husband is payable in the Superannuation Fund:
(i)under section 90XT(1)(a) of the Family Law Act 1975 (Cth), the Applicant Wife be entitled to be paid an amount calculated in accordance with part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the Base Amount; and
(ii)there be a corresponding reduction in the entitlement of the Respondent Husband to whom the splittable payment would have been made but for this order;
(d)That order 4(c), has effect from the Operative Time;
(e)That for the purpose of order 4(d), the Operative Time is 4 business days after the date of service of these orders on the trustee of the Superannuation Fund;
5.That the Husband transfer to the Wife all his right, title and interest in the Motor vehicle 1 currently in the Wife’s possession;
6.That the Wife transfer to the Husband all of her right, title and interest in the Motor vehicle 2 currently in the Husband’s possession;
7.THAT within twenty-eight (28) days of the date of the order, and on a date and time agreed with the Husband, the Wife will attend C Road, Suburb D, and enter only the garage of that property, to collect the remainder of her personal belongings, and then immediately leave that property;
8.That subject to this order, the parties otherwise retain all property, real estate, bank accounts financial resources and liabilities in their names and/or possession, and for the purpose bank accounts are deemed to be in the possession of the party whose name appears on the bank’s record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, and superannuation entitlements are deemed to be in the possession of the person who is named as the worker therein and service pensions are deemed to be the property of the person in receipt of the same;
9.That the parties indemnify each other as to any outstanding liability encumbering any item of property to which that party is entitled pursuant to this order and in relation to any outstanding debts otherwise owed by them as at the date of this order;
10.That the parties undertake all things, do all acts and sign all relevant documentation to give effect to the terms of this order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ngueng & Yancey has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Turnbull
INTRODUCTION
These are Reasons for Judgment in respect of property proceedings instituted by Ms Ngueng (‘the Wife’) and opposed by Mr Yancey (‘the Husband’).
The Wife filed an Application for Final Orders on 23 April 2020 seeking a just and equitable division of the parties’ property.
The Wife also applied for interim spousal maintenance, disclosure and costs. On 15 July 2020 Judge McGuire (as he then was) ordered that the Husband pay the Wife spousal maintenance in the amount of $250.00 per week from 17 July 2020 onwards. The Wife later agreed that she would no longer receive the spousal maintenance so ordered. This was because the Husband, at that time, met all outgoings (including rates, mortgages and taxes) in relation to several properties subject to these proceedings.
The proceedings for final property orders came before me for trial on 3 August 2021. The Wife appeared with the assistance of a Language 1 interpreter through Microsoft Teams.
Before the hearing, Counsel informed me that the parties had reached agreement regarding the Husband’s superannuation interest. The parties agreed that the Wife would receive a sum of $30,415.50, to be split from the Husband’s B superannuation interest. This sum represents 50% of the agreed value of the Husband’s superannuation interest.
OVERVIEW
The parties
The Wife, currently 58 years of age, originally hails from City E in Country F. Prior to the relationship subject to these proceedings, she was married to Mr G between 1988 and 2002. Upon separation, the then-Mr and Mrs R finalised a financial settlement. The Wife continued to raise their child, Mr X (‘X’) born in 1990, and received child support from Mr Yancey to do so. She was employed between 2008 and 2011 in casual sales work by her sister, Ms H Ngueng, and used her savings and settlement funds to visit Australia in 2012.
The Husband, currently 52 years of age, was born in Town J and has been employed by Company K as a factory worker since 1989. Prior to his relationship with the Wife he had bought and in some cases sold a number of local properties as set out at paragraphs 25 – 27.
Also prior to the relationship, the Husband was affected by a number of workplace and non-workplace injuries. His most recent ailment, being a knee injury, led him to meet the Wife in Suburb N following a medical appointment.
Timeline of the parties’ relationship
The parties met in City L in early 2012. The Wife was visiting and staying with a friend.
The parties became friends and communicated throughout their relationship by using translation applications.
The Wife contends that the relationship commenced in June 2012, shortly after the Husband invited her to move to Tasmania. The Husband, on the other hand, contends that the relationship began when the Wife moved into his home at C Road in Suburb D in 2013.
The parties married in 2013.
Throughout the course of the marriage the parties predominantly conducted their relationship between Tasmania and Country F.
A few months after the parties married, the Wife travelled to Country F and remained there, returning in 2014. This was the first time that the Wife travelled to Country F during the marriage. The Husband spent approximately one month of that period with the Wife in Country F.
In 2014 the Husband drew $80,000.00 from his superannuation fund to meet debts and living expenses.
The Husband claims that in 2015 the Wife again travelled to Country F for a few months.
In mid-2016 the parties travelled to Country F and Country M. The Wife left in 2016, followed later by the Husband, from which time the parties travelled together. They returned to Australia in or about 2016.
In 2018 the parties travelled to Country N for a holiday. This was, on the Husband’s account, an attempt by him to repair their relationship.[1]
[1] Affidavit of Mr Yancey, Affirmed and Filed 3 May 2021, [102]-[103].
The Husband asserts that separation occurred in 2018 after this holiday.
The Wife asserts that separation occurred in 2019. The Wife claims that, in 2019, she experienced family violence perpetrated by the Husband.[2] Her allegations include that the Husband was verbally abusive, attempted to kick her out and lock her out of the property at C Road, Suburb D, damaged parts of that property by removing fixtures and attempted to cancel her car registration by returning her number plates to Service Tasmania.
[2] Affidavit of Ns Ngueng, Affirmed and Filed 19 May 2021, [62]-[67].
Regardless of the date of separation, the parties agree that they lived separated but under the same roof until approximately 2019.
The Wife again travelled to Country F in 2019. Her stay in Country F was extended after she was diagnosed with a medical condition. The Wife was required to, and did, undertake treatment for her medical condition. She received this treatment while she was in Country F.
The Wife returned to Australia in 2019 and took up residence in Town J.
I note that determinations with respect to the commencement and end dates of the parties’ relationship are located at paragraphs 118 – 131 of these Reasons.
Property acquired before and during the relationship
Prior to the relationship with the Wife, the Husband owned five properties, including:[3]
(1)C Road, Suburb D, purchased in 1991;
(2)D Road, Town J, purchased in 1992 and sold in 2001;
(3)E Street, Region K, purchased in 1993 and sold in 2001;
(4)F Street, Town L, purchased in 1995 and used from time to time for agriculture; and
(5)G Street, Suburb M, purchased in 2005 and retained as a rental property ever since.
[3] Affidavit of Mr Yancey Affirmed and Filed 3 May 2021 (n 1), [22]-[32].
I note that the property C Road, Suburb D remains the Husband’s primary residence. This property was also the parties’ home during their relationship.
During the relationship, the Husband acquired four more properties with the intention of keeping them as investment properties:[4]
(1)H Street, Suburb N;
(2)J Street, Suburb M;
(3)K Street Suburb N; and
(4)L Street, Suburb N(1).
[4] Ibid, [121].
DOCUMENTS RELIED UPON
The Wife relies upon the following documents:
·Application for Final Orders, filed 23 April 2020;
·Affidavit of Ms Ngueng, filed 19 May 2021;
·Financial Statement of Ms Ngueng, filed 19 May 2021;
·Affidavit of Mr O, filed 13 May 2021; and
·Exhibit ‘A’, being the asset pool at pages 4-5 of the Wife’s case outline.
The Husband relies on the following documents:
·Response to Application for Final Orders, filed 13 August 2020;
·Affidavit of Mr Yancey, filed 3 May 2021;
·Financial Statement of Mr Yancey, filed 3 May 2021;
·Affidavit of P, filed 3 May 2021;
·Affidavit of Mr O, filed 13 May 2021; and
·Exhibit ‘A’, being the asset pool at pages 4-5 of the Wife’s case outline.
The parties agreed at trial that Exhibit ‘A’ should be relied upon as a representation of their assets, liabilities and superannuation. In its original form as tendered, this document was in some respects inconsistent with the evidence provided by the parties. As such, Exhibit ‘A’ has been amended to reflect the evidence. The final corrected form of Exhibit ‘A’ is extracted at paragraph 35 of these Reasons.
ORDERS SOUGHT
The Wife seeks orders in her case outline in the following terms:
1. THAT within sixty (60) days the Respondent Husband will pay to the applicant Wife the sum equal to twenty-five percent (25%) of the nett property pool (including superannuation) plus $2,640.00 (being the Respondent Husband’s share of the property valuations) and $10,000.00 (being the amount outstanding from the loan the Respondent Husband obtained from the Applicant Wife’s family);
2. THAT the Applicant Wife will do act [sic] such acts and sign all such documents to withdraw the caveats lodged over the Respondent Husband’s properties, will [sic] all associated fees to be at the Applicant Wife’s expense;
3. THAT the Applicant Wife retains Motor vehicle 1 that is currently in her possession;
4. THAT the Respondent Husband retains the Motor vehicle 2 that is currently in his possession;
5. THAT within twenty-eight (28) days of the date of the Orders the Applicant Wife will attend C Road, Suburb D to collect the remainder of her belongings stored at the property, namely personal possessions in the garage;
6. THAT each party will be otherwise solely entitled to the exclusion of the other to all property and chattels of whatsoever nature and kind in the possession of such party as at the date of the Orders and for the purpose bank accounts are deemed to be in the possession of the party whose name appears on the banks [sic] record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, and superannuation entitlements are deemed to be in the possession of the person who is named as the worker therein and service pensions are deemed to be the property of the person in receipt of the same;
7. THAT each party is solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to the Orders;
8. The Husband pay the costs of and incidental to this application;
9. Such other order as the Court deems meet.
During final submissions, the Wife’s position changed with respect to percentages claimed against superannuation and non-superannuation assets. Paragraph 1 above seeks ‘twenty-five percent (25%) of the nett property pool (including superannuation)’ plus other non-superannuation amounts claimed for the property valuations and the purported loan of $10,000.00. The Wife’s final submissions, however, specified that she seeks 25% of the non-superannuation pool in addition to the agreed sum of $30,415.50 to be split from the Husband’s superannuation fund to her chosen fund.
The Husband seeks orders in his case outline in the following terms:
1 .No alteration to existing interests of the parties in matrimonial property of the parties and in particular to the following real properties be made:
a. C Road, Suburb D in Tasmania Volume xxxx Folio x;
b. M Street, Suburb M in Tasmania Volume xxxx Folio xx
c. G Street, Suburb M in Tasmania Volume xxxx Folio x;
d. J Street, Suburb M in Tasmania Volume xxxx Folio xxx;
e. K Street, Suburb N in Tasmania Volume xxxx Folio xx;
f. L Street, Suburb N(1) in Tasmania Volume xxxx Folio xxx; and
g. F Street, Town L in Tasmania Volume xxxx Folio x
(“the real properties”).
2 That the Wife cause the removal of caveats over all of the real properties. The Wife will pay all expenses, costs and fees relating to said removal.
3 Within 7 days of the date of this order the Wife shall provide to the Husband’s solicitors all documentation and remuneration necessary to effect the removal of caveats referred to in clause 2 herein.
4 The parties otherwise retain all property, liability and financial resources in their names and or possession, including but not limited to motor vehicle 2 in the name and possession of the Husband and motor vehicle 1 in the name and possession of the Wife.
5 The parties shall each indemnify each other in relation to any outstanding debts owed by them as at the date of this order.
In the Alternative
6 That the Husband retain all his right title and interest in the following real properties;
a. K Street, Suburb N in Tasmania Volume xxxx Folio x;
b. H Street, Suburb N in Tasmania Volume xxxx Folio xx
c. G Street, Suburb M in Tasmania Volume xxxx Folio x;
d. J Street, Suburb M in Tasmania Volume xxxx Folio xxx;
e. K Street, Suburb N in Tasmania Volume xxxx Folio xx;
f. L Street, Suburb N(1) in Tasmania Volume xxxx Folio xxx; and
g. F Street, Town L in Tasmania Volume xxxx Folio x
(“the real properties”).
7 That the Wife cause the removal of caveats over all of the real properties. The Wife will pay all expenses, costs and fees relating to said removal.
8 Within 28 days of the date of this Order, the Wife shall provide to the Husband’s solicitors all documentation and remuneration necessary to effect the removal of caveats referred to in clause 7 herein and the Husband will pay to the Wife an amount equalling 2 per cent of the net amount of the non-superannuation assets of the matrimonial property and or such lesser sum as the Court may order;
9 The parties otherwise retain all property, financial resources and liabilities, in their names and or possession, including but not limited to Motor vehicle 2 in the name and possession of the Husband and Motor vehicle 1 in the name and possession of the Wife.
10 The parties shall each indemnify each other in relation to any outstanding debts owed by them as at the date of this order.
11 The Wife pay the costs of and incidental to this application;
12 Such other order as the Court deems meet.
At the conclusion of the hearing, the Husband effectively abandoned paragraphs 1 to 5 above. In pursuing the balance of the orders sought, the Husband’s position is that the Wife should receive around 10% of the total net property pool, being 5% of the non-superannuation pool and 50% of the superannuation pool.
THE ASSET POOL
The parties agree, for the most part, the makeup of the property pool. They rely on the property pool as set out in the Wife’s case outline.[5] The contents of the property pool balance sheet extracted below includes amendments, shown italicised in the extract below, being:
·Addition of value of the Husband’s share of F Street, Town L, as this was omitted from the Wife’s case outline and with the figure of $250,000.00 being obtained from the Husband’s case outline and Financial Statement;[6]
·Deletion of ‘Payment of half of valuation costs’ under ‘Other’ liabilities, and the deletion of the Husband’s liability of $2,640.00 for valuation costs from the table, as the parties agreed that he would repay that amount to the Wife separately;
·Addition of ‘TOTAL NET POOL’ figure at the bottom of the non-superannuation assets and liabilities;
·Addition of ‘TOTAL COMBINED POOL’ figure at the bottom of the table;
·Addition of column on the right-hand side of the table for the inclusion of shared totals; and
·Correction of calculations in ‘Subtotal’ and ‘Nett (no superannuation) Pool’ rows, as the figures in the original document as tendered were incorrectly calculated.
[5] Wife’s Case Outline, Filed 2 August 2021, 4-5.
[6] Financial Statement of Mr Yancey, Affirmed and Filed 3 May 2021, 12; Husband’s Case Outline, Filed 17 May 2021, 8.
ASSETS
Motor Vehicles
Wife’s Share
Husband’s Share
Motor vehicle 1
$3,525.00
Motor vehicle 2
$2,500.00
Real Property
D Road, Town J
$195,000.00
M Street, Suburb N
$155,000.00
G Street, Suburb M
$280,000.00
J Street, Suburb M
$350,000.00
K Street, Suburb N
$305,000.00
L Street, Suburb N(1)
$285,000.00
F Street, Town L
$250,000.00
Subtotal
$3,525.00
$1,822,500
LIABILITIES
Loans
Mortgage of C Road
$56,582.52
Mortgage of M Street
$125,743.23
Mortgage of G Street, Suburb M & F Street
$280,437.07
Mortgage of J Street
$245,252.44
Mortgage of 5 K Street
$195,638.89
Mortgage of L Street
$237,965.51
Credit Cards
Westpac Altitude Black Mastercard
$17,265.58
Westpac Low Rate MasterCard
$24.53
Westpac Low Rate MasterCard
$19,581.97
Westpac Low Fee Platinum Mastercard
$5,575.35
ANZ Low Rate Visa
$19,160.34
Other
Subtotal
$0.00
$1.203.227.43
Nett (no superannuation) Pool
3,525.00
$619,272.57
TOTAL NET POOL
$622,797.57
Superannuation (B Superannuation Fund)
$60,831.00
TOTAL COMBINED POOL
$683,628.57
The Wife seeks an additional order for the repayment of an outstanding debt of $10,000.00 purportedly owed to one of her sisters, Ms Q Ngueng (‘Ms Q Ngueng’), and asks that it be included in the balance sheet as a joint debt. The Husband does not consent to an order that he repay this purported debt, or that it be included as a joint debt in the balance sheet.
The Wife also seeks from the Husband half of the valuation costs paid by her, amounting to $2,640.00. As mentioned above, the Husband consents to an order that he repay this amount to the Wife.
At the commencement of the hearing the Husband maintained that the Wife had an interest in a property in Country F. This issue was not pursued in final submissions.[7]
[7] See Affidavit of Ms Ngueng, Affirmed and Filed 19 May 2021 (n 2), [35]-[36], annex ‘2’, in which the Wife explains that the property in Country F was transferred to her first husband in the 2002 financial settlement.
THE WIFE’S EVIDENCE
The Wife adopted the terms of her affidavit and Financial Statement during examination-in-chief. She was then cross-examined by Mr Tucker, Counsel for the Husband.
Mr Tucker put to the Wife that separation occurred in 2018, after the holiday to Country N, instead of in 2019. The Wife stated that this was a ‘lie’, and that she had photographs to prove the same. These photographs were not produced.
The Wife was asked about the purported loan of $10,000.00 from Ms Q Ngueng. This gave rise to an evidentiary issue, as the Wife produced no affidavit or oral evidence from Ms Q Ngueng as to this loan. Paragraphs 103 – 117 set out my reasons and findings as to the $10,000.00 debt.
Mr Tucker then asked the Wife a number of questions about her trips to Country F during the marriage. Mr Tucker put to her that the Husband paid her $1,000.00 per month during her 9-month trip to Country F between 2013 and 2014 and again in 2016. The Wife denied that the Husband had done so, instead saying that she travelled to Country F with money gifted to her by family and a friend when she got married. The Wife did not produce evidence to corroborate that she received funds as a gift and devoted them to her travels, or to dispute that the Husband paid $1,000.00 per month to her during this period. The Husband’s evidence, though it does not corroborate such payments in 2013-2014, supports his position with respect to the 2016 visit to Country F.[8] Counsel for the Wife, Mrs Mooney SC, did not challenge the contents of the Husband’s bank statements, nor did she challenge the Husband’s assertion that they evidence payments by him during the Wife’s 2013-2014 and 2016 trips to Country F.
[8] See Affidavit of Mr Yancey, Affirmed and Filed 3 May 2021 (n 1), annex ‘3’, specifically entries as marked on 16/3/2016 and 11/3/2016.
Mr Tucker further questioned the Wife as to who paid for the spousal visa. The Wife recalled that she paid the sum of $2,680.00, and confirmed that this was the total amount due. Mr Tucker then put to her that the Husband paid for the visa in the amount of $4,500.00. The Wife maintained her position that she paid for the visa, and that immigration authority records would confirm the same. She did not produce any such records. The Husband’s Westpac bank statement dated 22 May 2013 to 21 June 2013 shows a debit of $3,000.00 on 11 June 2013,[9] which is the amount that the Husband recalls he paid to the Department of Home Affairs as the application fee.[10]
[9] Ibid, 25, annex ‘2’.
[10] Ibid, [89].
The Wife said that she paid $2,680.00 for a spousal visa, and denied the cost was $4,500.00. No evidence was produced to corroborate her position. Again, the bank statements annexed to the Husband’s affidavit purportedly corroborate his payment of the same.[11]
[11] Ibid, annex ‘2’.
Mr Tucker further put to the Wife that she did not assist the Husband in purchasing any of the real estate that was acquired during their marriage. She said that the Husband is ‘lying’, and that she helped by finding advertisements for available properties and by accompanying the Husband to view these properties. Mr Tucker then asked how the parties communicated with each other during the marriage, and in response the Wife referred to ‘computer translation’. This, Mr Tucker suggested, means that she could not have dealt directly with real estate agents. The Wife maintained that she would find properties online or in the newspaper, tell the Husband about them, and then accompany him to inspections.
The Husband asserts that, with respect to the investment properties and agricultural production, the Wife did not contribute in the manner she claims.
Mr Tucker put to the Wife that she did not help with painting or renovating the investment properties, to which she unhelpfully answered that he ‘should ask the neighbours’. The Wife did not call any ‘neighbours’ from H Street, J Street, K Street or L Street to corroborate her contributions to those properties. Further, the Wife said that Mr X did a lot of work on the investment properties. Again, she did not call Mr X to give evidence about the Wife’s, or his own, contributions.
The Wife also disagreed with Mr Tucker’s suggestion that she did not help with agricultural production at the matrimonial home.
Mr Tucker asked the Wife about her paid employment during the marriage. She responded that she worked for one week in agriculture before the Husband ‘stopped [her] going to work’. Mr Tucker suggested to the Wife that she quit her job. She maintained that the Husband asked her not to work because she had an injury. Further, she said that she gave her lawyer a document confirming a doctor’s diagnosis of the injury. Any document confirming or diagnosing an injury was not produced at trial, nor was it annexed to her affidavit. While there is some medical evidence at ‘1’ and ‘7’, these are attributed to other incidents and the Wife does not rely upon them to support her injury diagnosis.[12]
[12] Affidavit of Ms Ngueng, Affirmed and Filed 19 May 2021 (n 2), [29], [66].
The Wife gave evidence via an interpreter in a manner which was, at times, short and sharp. The interpreter maintained a visual on the Wife in the witness box throughout her evidence.
It concerns me that, on a number of occasions, the Wife referred to corroborative documents not produced by her or relevant witnesses whom she did not call. These omissions detracted from her evidence, particularly with respect to the alleged $10,000.00 debt to Ms Q Ngueng.
Notwithstanding the abovementioned evidentiary shortcomings, the Husband did not challenge the nature of the Wife’s homemaking contributions as detailed in her affidavit. [13] In fact, the Husband conceded the same in his case outline.[14] This was important evidence and I accept the same.
[13] Ibid, [55], noting that the Wife details in this paragraph her responsibility for ‘all home duties such as cooking, cleaning, laundry and general house upkeep’ and her claimed contributions to ‘[taking] care of the plants and vegetables at C Road’ and ‘[assisting] Mr Yancey in performing tasks, such as feeding animals’.
[14] Husband’s Case Outline, Filed 17 May 2021 (n 6), 5, noting that the Husband does not deny the Wife’s deposition ‘that she attended to home duties during the relationship, cleaning and cooking for both of them’, and that his case outline does not concede the Wife’s contributions to farming as set out in [55] of her affidavit.
With respect to her involvement in finding and viewing investment properties, the Wife clearly perceived and continued to perceive her role as important and supportive of her partner in a joint endeavour. Although the Husband downplayed her assistance I have no doubt that, in her mind, she was being cooperative and helpful in choosing and purchasing the investment properties.
I accept the Wife’s evidence in relation to her homemaking contributions. I also accept that she perceived herself as contributing, and in some ways did contribute, to agricultural production at the matrimonial home and the acquisition of investment properties.
I am, however, doubtful about aspects of her evidence where she knew issues were disputed and failed to corroborate her position with documents or witnesses. This includes her failure to, in summary:
·produce photographs to support that separation occurred in 2019;
·call Ms Q Ngueng, or put Ms Q Ngueng on affidavit, with respect to the purported $10,000.00 loan;
·produce bank statements, or other evidence, to corroborate that she paid for her own travel from funds gifted to her;
·produce records of payments purportedly made by her to the immigration authorities for the spousal visa, or material evidencing that the amount owing for that visa was $2,680.00;
·call any neighbours of the investment properties to corroborate that she had undertaken work on those properties;
·call her son, Mr X to corroborate her, and his own, work purportedly done on the investment properties; and
·produce diagnostic records about her injury, as purportedly made by a doctor and given by the Wife to her lawyer.
I specifically address the Wife’s failure to adduce evidence about the $10,000.00 loan at paragraphs 103 – 117 of these Reasons.
It is not necessary that I have before me corroborative evidence to support each piece of evidence.[15] The absence of corroboration where such evidence is seemingly available and easily presentable does, however, raise questions about the reliability and weight to be afforded to such evidence. This, in turn, affects the completeness and rigour of a party’s position on a fact in issue.
[15] Evidence Act 1995 (Cth), s 164(1).
I accept the Wife’s evidence in relation to her homemaking contributions and her perception of the contribution she made to agricultural production at the matrimonial home and the purchase of properties. I have doubts about some aspects of her evidence where she knew issues were in dispute and had the opportunity to corroborate her position, but failed to do so. I address and determine the failure of the Wife to call witnesses and adduce evidence that may have assisted her case later in these Reasons.
THE HUSBAND’S EVIDENCE
The Husband confirmed the contents of his affidavit and Financial Statement.
He was cross-examined by Mrs Mooney SC.
The Husband maintained that the parties separated in 2018, not in 2019. He said he was certain of the date because of the parties’ visit to Country N — an ill-fated journey during which he says he realised how difficult the relationship had become. On his evidence, the Husband says that upon their return to Tasmania he informed the Wife that their relationship was over. He moved into a separate bedroom at this time.[16]
[16] Affidavit of Mr Yancey, Affirmed and Filed 3 May 2021 (n 1), [16]-[18].
He also referred to the Wife’s receipt of Centrelink payments, commencing sometime after October, to support his position. No documents were produced corroborating the same.
The Husband disputed that the Wife assisted with agricultural production. He said that the farm was a hobby agriculture production, and that the Wife did nothing to assist beyond ‘looking’ at the animals. He agreed that he has livestock for cash, and in agreeing so he denied that the Wife was in any way involved in rearing or selling livestock. He also denied that the Wife helped him collect firewood.
The Husband denied that the Wife helped him purchase or maintain the investment properties acquired during their marriage. In his view, the language barrier prevented her from conversing with real estate agents. He said that the Wife may have looked at ‘glossy photos’ of properties to purchase, and did not express her contribution to acquiring these properties any higher. He agreed that the Wife accompanied him to viewings, but maintained that she did not help purchase, clean or maintain the properties.
Mrs Mooney SC then questioned the Husband about the Wife’s time in Country F and suggested to him that, as shown on the Wife’s passport, she returned to Australia in 2014, after she left in 2013. The Husband replied that he would ‘go by the passport dates’.
It was further put to the Husband that the Wife spent a total of 15 months overseas during their relationship. He did not deny this, but wanted confirmation from the Wife’s passport. The passport was not produced at trial, nor is it annexed to the Wife’s affidavit.
It was seemingly conceded by Mr Tucker in final submissions that the Wife’s time outside of Australia during the relationship totalled approximately 15 months. I note that the Husband accompanied the Wife for some of this total period — in 2013 and in 2016.[17]
[17] Ibid, [69], [97]-[98].
The Husband maintained that he funded the Wife’s visits to Country F. He annexed bank statements to his affidavit from 2013 and 2016 evidencing cash withdrawals which, according to him, he then paid to the Wife for travel purposes.[18]
[18] Ibid, [66], [82]-[85].
In response to the Wife’s allegation of the $10,000.00 loan from Ms Q Ngueng, the Husband denied that this amount was ever advanced to him as a loan. It follows that the Husband also denied that he owed $10,000.00 to Ms Q Ngueng.
The Husband agreed that he had received $3,000.00 from Ms Q Ngueng, and both parties agree that this was repaid.
He denied that he told the Wife not to work. Further, he did not accept that her injury (the very existence of which he also did not accept) prevented her from working for more than one week during their marriage.
The Husband confirmed that he receives $300.00 per year in monies by renting a sign that he owns on the Area R. He had not disclosed this income in his Financial Statement.
The Husband denied that the son met the Wife’s expenses for the Country N holiday in 2018. He also denied that the Wife paid for her spousal visa. As for the visa, the Husband’s bank statements evidence a withdrawal of $3,000.00 in 2013.[19]
[19] Ibid, [66], [73], [81], annex ‘2’ specifically entries 24/5/2016 and 11/6/2016.
Lastly, the Husband agreed that the value of his superannuation interest has increased since separation.
The Husband was, for the most part, able to corroborate his claims about the issues in dispute. This is with the exception of evidence from Centrelink in support of separation occurring in late 2018. The Husband’s bank statements corroborate, to some extent, his claims of certain amounts being paid to the Wife. The cash withdrawals, though legitimate, offer little information as to the purpose or conclusive recipient of the funds. On this point I note that the Husband was not challenged as to the purpose and recipient of the payments, and as such I may conclude that these entries corroborate such payments being made to the Wife, and not for some other purpose. Further, the first statement annexed does not cover the entire period in which the Husband claims to have made payments to the Wife. The first is dated 2013, but the Husband claims he paid the Wife approximately $1,000.00 per month between 2013 and 2014.
The Husband put his evidence clearly to the Court. The Husband’s claims were largely corroborated by other evidence and, where he offered corroboration, I generally preferred his evidence on that basis.
As submitted by both Counsel this matter could have been argued on the papers. Issues of credit will not decisively effect my determination.
There are some disputed, but peripheral, matters which will not significantly impact my determination as to the justice and equity of the order ultimately made under s 79 of the Act.
Finally, and most importantly, the Wife accepts that the Husband made significant financial contributions and the Husband accepts that the Wife made significant homemaking contributions.[20]
[20] Husband’s Case Outline, Filed 17 May 2021 (n 6), 5.
SUBMISSIONS
Both Counsel submitted that the parties’ property should be assessed in two pools — one pool containing all non-superannuation property and the other containing only superannuation property.
Both Counsel submitted that I should assess the asset pools globally, as opposed to assessing the property on an asset-by-asset basis. I intend to adopt a global approach.
The Wife’s submissions
Mrs Mooney SC’s submissions were consistent with the Wife’s case outline with respect to the Wife’s contributions and s 75(2) factors.
I was urged against giving only token weight to the Wife’s non-financial contributions, particularly those contributions made as a homemaker. The Wife conceded that the Husband made the majority of the financial contributions, though Mrs Mooney SC asked me to assess all the parties’ various types of contributions throughout the relationship.
Mrs Mooney SC submitted that the Husband’s handsome property portfolio has increased by approximately $200,000.00 in value due to market forces. This is particularly, in the Wife’s submission, attributable to the properties acquired during the relationship. As such, the increase in value should not be viewed as emanating from the Husband’s contributions alone. The Wife, being the primary homemaker during that period, contributed at a minimum to that increase in value by supporting the Husband with finding and maintaining his properties.
It was seemingly conceded that, on the balance of probabilities, evidentiary shortcomings prevented me from finding that Ms Q Ngueng had loaned the Husband $10,000.00, or that the Wife received monetary gifts from friends and family at the commencement of the relationship.
Overall, I was asked to assess the Wife’s contributions at 8-15%.
Relevant 75(2) factors to which I was referred in making my determination included the significant disparities in the parties’ income and capital.
Mrs Mooney SC pointed out that the Husband will retain income-generating and appreciating assets. She further submitted that, given the asset pool’s relatively small net value, I should be careful not to apply small percentages to the overall outcome. This causes, as a practical result, a small dollar figure for the Wife. A lesser sum merely because the asset pool has a low net value may not ultimately create a just and equitable solution. As such, I was urged to ‘stand back’ and consider whether the ultimate outcome (in dollar terms) is just and equitable.[21]
[21] Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395, [39]-[40].
The Wife’s submissions reflects authority that ‘the reality is to be found in the figures’ — a purely mathematical approach in my assessment does not necessarily lead to a just and equitable outcome. [22]
[22] Clauson & Clauson (1995) FLC 92-595, 81,909-81,910; Pandelis & Pandelis [2018] FamCAFC 66, [48].
Mrs Mooney SC also submitted consistently with authorities, developed since Hickey & Hickey& Attorney-General for the Commonwealth of Australia [2003] FamCA 395 (‘Hickey’), as to the proper approach for determining orders under s 79. The final step of the approach in Hickey is for me to stand back, as submitted on behalf of the Wife, and assess whether an order is just and equitable ‘in all the circumstances of the case’.[23] That assessment is to be undertaken with respect to the parties’ circumstances and the order’s effect upon the actual property subject to the order, including superannuation.[24]
[23] Hickey & Hickey & Attorney-General for the Commonwealth of Australia (n 21), [39].
[24] Coghlan & Coghlan [2005] FamCA 429, [116]-[118] (Bryant CJ, Finn and Coleman JJ).
Mrs Mooney SC submitted that a further adjustment, between 8% and 14%, should be made in the Wife’s favour pursuant to s 75(2) factors. She subsequently submitted that the Husband’s proposal, being 10% of the total property pool, is too low. Notwithstanding the relative brevity of the relationship I was urged to, overall, assess the Wife’s contributions as 25% excluding superannuation entitlements.[25]
[25] Wife’s Case Outline, Filed 2 August 2021 (n 5), 1. I note that the cited page in the Wife’s case outline seeks 25% of the property pool including superannuation, and that this order sought differs from that sought at trial.
The overall assessment of 25% in favour of the Wife, excluding superannuation entitlements, equals $155,699.39 on the revised figures in Exhibit ‘A’, as extracted at paragraph 35. This figure would be in addition to the 50% split of the Husband’s superannuation interest as agreed.
The Husband’s submissions
Mr Tucker submitted that, given the short duration of the marriage, there should be a high level of scrutiny as to the financial contributions of the parties. This submission, given consistently with the Husband’s case outline, referred to the decision of Lane & Wharton [2010] FamCA 18.
The Husband’s position is that he made the overwhelming financial contributions to the marriage, noting that the Wife held paid employment for one week. Submissions pointed to the Husband’s property holdings, in that the properties he held prior to the marriage provided the equity to purchase the properties acquired during the marriage. In this way, the Wife has made no (or very little) contribution to purchasing the investment properties in 2017, nor should the Court recognise her as contributing to any increase in their value.
Mr Tucker conceded that it is just and equitable for the Court to alter the parties’ property interests, and that there was and remains an income and capital disparity between the parties. It was submitted, however, that I need to take into account the relationship’s short duration.
It was also conceded that both parties made non-financial contributions and that weight should be given to the Wife’s homemaking contributions while she lived in Australia. Mr Tucker submitted on the latter point that weight should be attributed only to those periods in which the Wife lived in Australia, noting that she resided outside Australia for at least 15 months.
I was asked to reject any suggestion that the parties remained in debt to Ms Q Ngueng in the sum of $10,000.00, or indeed in any other sum.
I was also asked to reject any evidence from the Wife that the Husband did not want her to work. In any event, it is an agreed fact that the Wife only undertook paid employment during the relationship for a period of one week.
Mr Tucker’s concluding submissions regarding adjustments were that, taking into account the agreed superannuation split, there should be an overall adjustment of 10% to the Wife including superannuation. On a two-pool basis, Mr Tucker submitted that the Wife should receive 5% of the non-superannuation pool and the agreed 50% of the superannuation pool. The former figure of 5% is an increase from the 2% figure previously sought by the Husband in respect of the non-superannuation assets.
The 10% figure proposed by the Husband consists of the Wife’s Motor vehicle 1 as well as the $30,415.50 superannuation split as agreed by the parties. On the amended figures contained in Exhibit ‘A’, this equals 9.004% of the total property pool.
In relation to the 5% of the value of the non-superannuation pool, the proposed figure of 5% differs from the 2% figure sought in paragraph 8 of the orders sought in the Husband’s case outline. On the amended figures set out at paragraph 35, 5% of the non-superannuation pool equals $31,139.88. This means that the Husband would pay the gap of $27,614.88 between the value of the Motor vehicle 1 (at $3,525.00) and the total 5% value of the non-superannuation property pool.
PRELIMINARY ISSUES
I will briefly address two preliminary issues before considering what, if any, order should be made.
Evidentiary shortcomings with respect to the $10,000.00 loan from Ms Q Ngueng
The Wife claims that her sister, Ms Q Ngueng, lent money to herself and the Husband on two occasions.
The Husband agrees that, on one occasion, Ms Q Ngueng advanced a loan of $3,000.00 to the Wife which he then used and repaid. The Wife agreed that the husband did so.[26]
[26] Affidavit of Ms Ngueng, Affirmed and Filed 19 May 2021 (n 2), [49].
The Wife asserts that Ms Q Ngueng loaned the parties a further $10,000.00, which was purportedly used by the Husband and never repaid.[27] The Husband denies having received this amount and, as such, denies that it is a loan for which he remains in debt. The Wife did not produce evidence from Ms Q Ngueng, nor any documentary evidence, to corroborate her claim.
[27] Ibid, [50]-[51].
The $3,000.00 loan was advanced in 2017, and it appears that the Wife places the purported $10,000.00 loan at this point in time as well.[28] Neither party produced complete banking records for this time — the Husband’s annexes statements with the latest date being December 2016, and the Wife only annexes statements from 2021. As for the $10,000.00 loan, the Husband’s evidence does show a withdrawal of $10,000.00 in 2016, with a hand-written note of ‘house’ next to the entry on the statement.[29] It was not put to him that this amount represented the loan from Ms Q Ngueng.
[28] Affidavit of Mr Yancey, Affirmed and Filed 3 May 2021 (n 1), [113].
[29] Ibid, 30, annex ‘3’.
The Wife must prove that the $10,000.00 loan was given, and that the debt to Ms Q Ngueng remains outstanding for me to consider this amount in formulating orders under s 79. Though she bears the onus of proof, the Wife did not call witnesses or provide further evidence with respect to this issue. Even Ms Q Ngueng herself, the purported creditor of the Husband, was not called as a witness. The Wife was plainly in a position to call or provide such corroborative evidence and she did not explain her failure to do so.
This Court may, in light of the Wife’s failure to call or provide this evidence, infer that it would not have assisted her case. In the words of Lord Mansfield in Blatch v Archer (1774) 98 ER 969:
“all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted.”[30]
[30] Blatch v Archer (1774) 98 ER 969, 970.
As a ‘particular application’ of this rule, this Court:
“can be confident about drawing inferences against a party who has chosen not to give evidence [if] it was within the power of the party to produce evidence on that matter.”[31]
[31] Australian Securities and Investments Commission v Rich [2009] NSWSC 1229, [439] (Austin J). See also Jones v Dunkel (1959) 101 CLR 298, 308 (Kitto J) which, with respect to the trial directions forming the basis of appeal, states that ‘what should have been added, and not being added was in the circumstances as good as denied, was that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence’.
Further, as set out by Murphy J in Lavell & Lavell [2012] FamCA 34:
“122. The “rule in Jones v Dunkel” relates to the potential for an adverse inference to be drawn in circumstances where evidence presented in a case raises an inference against a party and that party is in a position to give or call evidence to refute it and does not do so. But, the “rule in Jones v Dunkel” can be seen as “a particular application” of “the rule in Blatch v Archer”. (See Ho v Powell [2001] NSWCA 168 per Hodgson JA at [15], Beazley JA agreeing).
123. The latter “... applies where a person bearing the onus of proof does not give or call evidence which that person is plainly in a position to give or call; and unless some explanation is given of that failure, the tribunal of fact is entitled to infer that this evidence would not have assisted that person’s case ...” (Ho v Powell). The principle in Blatch v Archer can be seen as wider than the “rule in Jones v Dunkel” “because it is also available against the person bearing the onus of proof where that person does not adduce evidence that he or she was plainly in a position to adduce”. (Australian Securities and Investments Commission v Rich [2009] NSWSC 1229 per Austin J at [439].”[32]
[32] Lavell & Lavell [2012] FamCA 34, [122]-[123].
Murphy J also extracted the following statement originating from Shalhoub v Buchanan [2004] NSWSC 99 and repeated in subsequent authorities, including Australian Securities and Investments Commission v Rich [2009] NSWSC 1229:
“124. [T]he failure of a party who bears an onus of proof to call an available witness who could cast light on some matter in dispute can be taken into account in deciding whether that onus is discharged, in circumstances where such evidence as has been called does not itself clearly discharge the onus.” [33]
[33] Ibid, [124]; Shalhoub v Buchanan [2004] NSWSC 99, [71] (Campbell J); Australian Securities and Investments Commission v Rich (n 31), [440].
The Wife did not explain why Ms Q Ngueng was not called as a witness, or even file an affidavit from her in relation to the alleged debt. Without evidence from Ms Q Ngueng, and with no other documentation to corroborate the claim, there is a considerable void in the Wife’s case as to the existence of the $10,000.00 debt to Ms Q Ngueng. As such, I draw the inference that Ms Q Ngueng’s evidence, if called, would not have assisted the Wife’s case.
This inference being drawn prevents the Wife’s case, on this point, reaching the requisite standard of proof. The full standard, to which I am required to adhere, is extracted below:
“140 Civil proceedings: standard of proof
(1)In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged.” [34]
[34] Evidence Act 1995 (n 15), s 140.
Dixon J, as he then was, also provided remarks on the standard of proof for civil proceedings in Briginshaw & Briginshaw [1938] HCA 34; 60 CLR 336, which remain relevant and authoritative:
“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.”[35]
[35] Briginshaw & Briginshaw (1938) 60 CLR 336, 361-362.
Without evidence from Ms Q Ngueng, or indeed any other corroborative evidence, the Wife has failed to show on the balance of probabilities that the $10,000.00 loan was advanced, or that the debt continues to exist.
I do not, therefore, include the $10,000.00 in the balance sheet as a debt, nor do I take it into account as an indirect financial contribution.
In conclusion, for the reasons stated above the asset pool for the purpose of these proceedings is as set out at paragraph 35.
The length of the relationship
As foreshadowed in the factual background of this case, the parties disagree as to when their relationship commenced and concluded.
The Husband claims that the relationship commenced in 2013 and concluded in in 2019, a total of 5 years and 9 months. The Wife claims that the relationship commenced in 2012 and concluded in 2019, a total of 6 years and 6 months.
Counsel did not explore this issue in any great detail during cross-examination, and no third party evidence was adduced to support one position over another.
Whether the relationship lasted 6 years and 6 months or 5 years and 9 months is, largely, a distinction without a difference insofar as it affects any alteration of the parties’ property interests. Nevertheless, I will address each of the parties’ contentions.
In relation to the parties commencing cohabitation, the Wife says in her affidavit that the Husband invited her to live with him in Tasmania.[36] She gives no evidence as to the nature of the relationship before their marriage in 2013. The Husband’s evidence sets out, to a degree, the nature of their relationship between their first meeting and their marriage in 2013. He describes that they met in mid-2012 when the Wife was visiting City L and they became closer over the following 7-8 months, with the Wife staying at his home 1-2 nights per week before moving in permanently in 2013.[37]
[36] Affidavit of M Ngueng, Affirmed and Filed 19 May 2021 (n 2), [10].
[37] Affidavit of Mr Yancey, Affirmed and Filed 3 May 2021 (n 1), [7].
As the Husband has provided a fuller description of the parties’ early relationship, I am inclined to accept his evidence about the time at which the relationship commenced. It may well be that the Wife interpreted her once or twice-weekly visits to the Husband’s home as being a de facto relationship, but there is no evidence supporting this view.
I find that cohabitation commenced in 2013, and that this constitutes the start of the relationship for the purposes of these proceedings.
In relation to the date of separation, the Husband’s account is that he told the Wife that their relationship was over upon their return from Country N in 2018.[38] The Husband agrees that the Wife continued to live in the former matrimonial home until mid-2019, albeit separated under one roof.
[38] Ibid, [16].
The Wife, on the other hand, says that the parties separated in 2019.[39] She describes that the Husband asked her to collect rent for him at this time.[40] The Husband’s evidence does not contest this, nor did he challenge it at trial.
[39] Application for Final Orders, Filed 23 April 2020, [27].
[40] Affidavit of Ms Ngueng, Affirmed and Filed 19 May 2021 (n 2), [56].
That the Wife collected rent on the Husband’s behalf is consistent with an ongoing relationship between them. The evidence reveals, however, that their relationship was clearly strained by 2019. This, again, was uncontested by the Husband.
The Wife describes that, in 2019, police were contacted to handle alleged incidents of family violence at the former matrimonial home. These incidents included the Husband allegedly removing the Wife’s number plates from her car, along with other allegations.[41]
[41] Ibid, [62]-[67].
The Husband’s account is that he told her the relationship was at an end after the Country N trip,[42] and had little to do with her after that time.[43] While the relationship may well have been in its final throes in 2019, the Wife continued to undertake tasks on his behalf. Further, the Husband’s long working hours during this period seemingly minimised communication between the parties.[44] This is likely the final form in which the relationship existed — an impersonal connection with a palpable feeling of its looming demise.
[42] Affidavit of Mr Yancey, Affirmed and Filed 3 May 2021 (n 1), [104]-[105].
[43] Ibid, [106]-[107].
[44] Ibid, [107]-[108].
The evidence before me indicates that, between 2018 and 2019, the relationship dwindled over a few months and finally ended in 2019. It was in 2019 that the tensions, as described by the Wife, started to rise. The Wife’s evidence is consistent with such a scenario.
For the reasons stated I find on the balance of probabilities that the relationship commenced on in 2013 and remained intact until 2019. This is a total period of approximately 6 years.
PROPERTY SETTLEMENT — PRINCIPLES
Foster J in Lotta & Lotta [2017] FamCA 50 explains the considerations to which a Court must direct itself in assessing the justice and equity of an order, and the process by which a Court undertakes the inquiry:
“281.The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford [2012] HCA 52 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman [2014] FamCAFC 91 and Scott & Danton [2014] FamCAFC 203.
282.The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
283.Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
284.There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.
285.In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by Husband and Wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
286.In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to same. Here the Wife seeks an order for adjustment of property and the Husband contends that there should be no such adjustment.
287.It is thus important to ascertain the present property and resources of the parties so as to facilitate a consideration of the s 79(2) question.
288.In some circumstances it is not possible to determine whether it is just and equitable to make adjustment orders as to the parties present property rights without a consideration of s 79 (4) matters.
289.Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). The Court must then consider s 79(4)(d) to (g) in particular the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).
290.The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell [1999] FamCA 1875; (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.” [45]
[45] Lotta & Lotta [2017] FamCA 50, [281]-[290].
Section 79(4) of the Act states that in considering what order (if any) should be made pursuant to s 79(1), this Court should take into account:
“(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.”
Section 79(4)(e) requires this Court to consider the factors set out at s 75(2), as far as they are relevant to altering the parties’ proprietary interests. The matters to be taken into account under s 75(2), extracted in full, are:
“(a) the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party’s role as a parent; and
(m)if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i)the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.”
THE PARTIES’ CONTRIBUTIONS
The Husband concedes that it is just and equitable for there to be an order altering the parties’ interests in the property of the relationship.
The High Court in Stanford & Stanford [2012] HCA 52; 247 CLR 108 insists that interference with legal and equitable interests of parties must adhere to principled reason.[46] The principles to which this Court may have reference include, but are not limited to, ‘those principles which the Act itself lays down’.[47] Justice and equity, with respect to property settlement, does not admit to an exhaustive definition and it is ‘not possible to chart its metes and bounds’.[48]
[46] Stanford & Stanford (2012) 247 CLR 108, [41].
[47] Ibid, citing R v Watson; Ex parte Armstrong (1976) 136 CLR 248, 257.
[48] Stanford & Stanford (n 46), [36].
The principles contained within the Family Law Act 1975 (Cth) (‘the Act’) also accommodate ‘stated or unstated assumptions and agreements about property interests during the continuance of the marriage’.[49] It is just and equitable, according to Stanford & Stanford, for a Court to make a property settlement order if such agreements or assumptions with respect to marital property interests during the marriage have been brought to an end, which usually occurs with the end of the marriage.
[49] Ibid, [41].
I take into account that this marriage was one of nearly 6 years. During that time the Wife, on the admission of the Husband, made contributions by way of homemaking.[50]
[50] Affidavit of Mr Yancey, Affirmed and Filed 3 May 2021 (n 1), [118].
The Wife has left the marriage without any significant income, and in circumstances where she has been wholly reliant upon the Husband’s income during the relationship. The Wife is not employed, speaks almost entirely in language 1, and does not have financial means of support except for her Centrelink allowance.[51]
[51] Financial Statement of Ms Ngueng, Affirmed and Filed 19 May 2021, 3; Affidavit of Ms Ngueng, Affirmed and Filed 19 May 2021 (n 2), [3
I am satisfied that it is just and equitable for an order to be made altering the parties’ property interests.
The following sections assess the parties’ contributions under s 79(4), and then consider whether adjustments should be made pursuant to the factors under s 75(2).
Section 79(4)(a) – financial contributions
Both parties agree that the Husband has made the overwhelming financial contributions to the marriage.
The Husband was employed fulltime throughout the marriage and there is no dispute that he contributed those funds to the relationship. The Husband currently earns $1916.12 per week.[52]
[52] Affidavit of Mr Yancey, Affirmed and Filed 3 May 2021 (n 1), [54].
The Wife was employed for a period of one week during the relationship.[53] The parties disagree as to why the Wife was not employed beyond this one week of employment. The Wife alleges that this was a joint decision between the parties. The Husband denies this. Regardless of which perspective forms the truth, the fact is that the Wife did not make any financial contribution to the marriage other than that gained from her one week of employment.
[53] Ibid, [61].
The Wife gave evidence under cross-examination that she received gifts of money at the time of the marriage that were contributed to the relationship. This evidence is not contained in her affidavit material. The Wife does refer in her affidavit to financial assistance from her family and money from her divorce settlement, prior to the relationship commencing.[54] The Husband denies that the Wife brought funds into the relationship.
[54] Affidavit of Ms Ngueng, Affirmed and Filed 19 May 2021 (n 2), [6]-[7].
Given the late revelation by the Wife of this purported contribution, and the lack of corroborating evidence, I do not find this assertion proved on the balance of probabilities and refer to my preliminary evidentiary finding above.[55]
[55] See again Evidence Act 1995 (n 15), s 140; Blatch v Archer (n 30), 970.
The parties received the benefits of a loan from Ms Q Ngueng, the Wife’s sister. With respect to a loan of $3,000.00, funds obtained via the Wife, which was used by the Husband. This loan was repaid by him. The funds were obtained from Ms Q Ngueng via the Wife which, while this is an indirect financial contribution, it is of minor impact.
The Wife also claims that she paid for her trips to Country F and for her spousal visa. The Husband claims he paid for them. The Wife under cross-examination referred to her son providing some financial assistance to fund her trips away. He was not called as a witness. I infer that his evidence, if called, would not have assisted the Wife’s case. In this respect I again refer to the rule in Blatch & Archer, and its application in Australia, as set out specifically at paragraphs 103 – 117 of these Reasons.
Further, the Wife does not particularise how she paid for her trips away in her affidavit. The Wife simply denies that the husband assisted her financially.[56]
[56] Affidavit of Ms Ngueng, Affirmed and Filed 19 May 2021 (n 2), [13], [15].
The Wife does not explain how she funded these trips in circumstances where she agrees that she did not have paid employment during the relationship, other than for one week. Further, the Husband annexes to his affidavit bank statements which he says evidence the cash withdrawals of significant sums used to meet the Wife’s costs of her trips away. The Husband was not challenged in relation to this evidence.[57]
[57] Affidavit of Mr Yancey, Affirmed and Filed 3 May 2021 (n 1), [66], [82]-[85], [98].
On the balance of probabilities I accept the Husband’s evidence that he funded the Wife’s trips overseas in the manner he describes in his affidavit, and that he paid for the Wife’s spousal visa.
Significantly, the Husband brought into the relationship a number of properties.[58] Those properties were used as security to purchase additional properties during the relationship, as set out at paragraphs 25 – 27 of these Reasons.
[58] Ibid, [22]-[32].
The Husband’s direct and indirect financial contributions were overwhelmingly greater than the Wife’s and must be given significant weight.
Section 79(4)(b) – contributions other than financial contributions
The Wife asserts that she provided non-financial contributions throughout the relationship, including assisting the Husband in finding viewing and maintain rental properties that were purchased, assisting with agricultural production and assisting generally on the matrimonial home. The Husband disagrees.[59]
[59] Husband’s Case Outline, Filed 17 May 2021 (n 6), 2.
The Wife did not call her son who she claims helped clean and maintain the investment properties.[60] The Wife’s assertion of son’s assistance went unsupported and, again, I refer to my evidentiary findings above and the rule in Blatch & Archer.
[60] Affidavit of Ms Ngueng, Affirmed and Filed 19 May 2021 (n 2), [74].
Conversely, the Husband did not challenge the Wife’s evidence that she collected rent in 2019. He does not challenge the detail that the Wife sets out regarding the use of those rental monies.[61] This suggests the Wife was involved in these projects to a greater extent than the Husband is willing to admit.
[61] Ibid, [56]-[57].
The evidence from each party represents their own perspectives. I accept that the Wife views her contributions, namely assisting the Husband as described in her affidavit, as important. The Husband, from his perspective, did not find these contributions helpful or substantial.
I prefer the Wife’s evidence in this regard. The Husband essentially concedes that the Wife was the primary homemaker.[62] The Husband worked full time. The assistance with livestock and working on the farm is consistent with her general role during the relationship. I accept on the balance of probabilities that the Wife provided support in relation to purchasing rental properties and on the farm. These contributions were minimal, but they were not nothing. Providing a partner with support, particularly in relation to investment decisions, is, of itself, an important contribution.
[62] Husband’s Case Outline, Filed 17 May 2021 (n 6), 5.
I find that the Husband and the Wife have both made non-financial contributions, to the acquisition, conservation or improvement of the parties’ property.
Section 79(4)(c) – the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent
The Husband accepts, that when the Wife was living in Australia, she was predominantly responsible for the homemaking duties associated with the relationship.[63] The Wife concedes that she lived in Country F for approximately 15 months of the parties’ relationship. The Husband did, however, spend time with the Wife in Country F, Country N and Country M during these periods.[64].
[63] Ibid, 5.
[64] Affidavit of Mr Yancey, Affirmed and Filed 3 May 2021 (n 1), [67]-[69].
The Wife states in her affidavit that:
“[d]uring the course of mine and Mr Yancey’s relationship I was responsible for all home duties such as cooking, cleaning, laundry and general house upkeep. I also took care of the plants and vegetables at C Road. I also assisted Mr Yancey in performing tasks around the farm, such as feeding animals.”[65]
[65] Affidavit of Ms Ngueng, Affirmed and Filed 19 May 2021 (n 2), [55].
The Wife’s homemaking contributions should not be given token weight. In valuing a home maker’s contribution Courts must recognise that this may be given weight under s 79(4)(c) and s 79(4)(b).In Dawes & Dawes [1989] FamCA 71 (‘Dawes’), the Full Court stated:
“73. Although it is difficult, as it always is in such cases, to put one's finger squarely on what led his Honour to so undervalue the Wife's contribution, we think that one significant matter which did so was that he failed to give any weight to the fact that the Wife's performance of her role as homemaker and parent during the 30 years of cohabitation was not just a contribution under s.79(4)(c) (which he subsequently recognized to some degree) but was also a significant contribution under s.79(4)(b). That point was made by the Full Court (Nicholson, C.J., Murray and Buckley, JJ.) in In the Marriage of Napthali (1988) 13 Fam LR 146 at p 151, where their Honours said:-
"Turning now to the second ground of appeal, (which was that 'the Court erred in law in failing to take into account contributions made by the Wife during the marriage as homemaker and parent') it is apparent that nowhere in her Honour's judgment does she consider the contribution of the Wife to the business assets as a home-maker and parent. It is clear that the Wife did perform this role and nowhere in the evidence or in the submissions was any criticism directed at her capacities in this regard. It is to be noted that in Mallet v. Mallet [1984] HCA 21; (1984) 9 Fam LR 449; (1984) FLC 91-507, the High Court whilst rejecting the proposition of a presumption of equality, approved statements by this Court that the purpose of s 79(4)(b) is to give recognition to the position of the housewife who by her attention to the home and the children frees her Husband to earn income and acquire assets and also approved the proposition that the contribution made by the Wife as a home-maker and parent should be recognised not in a token way but in a substantial way: see Gibbs C.J. at Fam LR 451; FLC 79,111; Mason J. at Fam LR 461-2; FLC 119-20.”[66]
[66] Dawes & Dawes [1989] FamCA 71, [73] (Lindenmayer, Strauss and Cohen JJ).
The Wife’s predominant role as the homemaker was an important contribution during the parties’ marriage, and I weigh it according to its importance and the remarks in Dawes above.
Section 79(4)(d) – the effect of any proposed order upon the earning capacity of either party to the marriage
The Full Court in Beck & Beck (1983) FLC 91-318 defined ‘earning capacity’ for the purposes of s 75(2)(k), applicable the Act generally, as:
“a capacity to obtain income which could be used to provide maintenance … and not merely as current income from personal exertion or from the use of personal skills.”[67]
[67] Beck & Beck (1983) FLC 91-318, 78,166 (Evatt CJ, Emery and Hase JJ).
As it stands the Husband has far more capacity to obtain income than the Wife. Both parties sought orders of the same general nature, being for the Wife to retain her car, receive 50% of the Husband’s superannuation interest and receive payment according to an assessment and adjustment of contributions. Such an order will not affect the parties’ earning capacity in the meaning outlined above.
I note that where a party holds assets capable of producing income, whether or not those assets do, in fact, produce income is irrelevant to ‘earning capacity’ for current purposes. That party’s earning capacity is the ‘capacity to earn the amount which those assets reasonably invested or utilised would produce’[68]
[68] Ibid.
At trial neither party sought any adjustment to the parties’ real property interests. As such, the proposed orders do not affect the parties’ earning capacity associated with income-producing assets.
The proposed orders will not impact on the earning capacity of Husband. The Wife’s financial circumstances will be improved by the order and may enhance her earning capacity if she is able to use some of the monies to improve her English and undertake training, making her more employable.
Section 79(4)(e) – the matters referred to in subsection 75(2) so far as they are relevant
This factor is addressed in paragraphs 188 – 228.
Section 79(4)(f) – any order made under this Act affecting a party to the marriage or a child of the marriage
This factor is irrelevant.
Section 79(4)(g) – any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage
This factor is irrelevant.
Conclusion regarding contributions
The Full Court in Jabour & Jabour [2019] FamCAFC 78 (‘Jabour’) considered the way in which contributions are to be assessed and, in doing so, considered a number of case authorities. The Court cited and extracted the following from Wallis & Manning [2017] FamCAFC 14, in which the wife appealed a property order on the basis that the primary Judge did not afford her contributions sufficient weight:
“110.The approach adopted by the parties before her Honour is repeated in the supplementary submissions filed on behalf of the respondent Husband; it is there asserted that “the contributions of the parties would be equal aside from gifting by the Husband’s father of significant parcels of land which remain in existence at the present point in time”. Counsel for the Wife, in his further submissions, makes no such specific assertion but implicitly does so by relying upon the trial judge’s findings and manner of assessment. For the reasons given earlier, we reject that approach; the gifts by the Husband’s father should be taken into account as a contribution together with the miscellany of other contributions made by each of the parties over the course of their marriage.”[69]
[69] Jabour & Jabour [2019] FamCAFC 78, [59].
The Full Court also noted that Wallis & Manning said, consistently, that:
“20.Yet, that approach must also ensure that the “myriad of other contributions” and the duration over which, and circumstances in which, the miscellany of other s 79(4) contributions were made is not accorded a subsidiary role. The essential s 79(4) task is for “trial judges [to] weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation.”[70]
[70] Ibid, [60].
The Full Court cited also Dickons & Dickons [2012] FamCAFC 154 (‘Dickons’), which ‘expressly rejected the notion that there must be a relationship between contributions and what they produced in terms of property’:[71]
“14.As is plain from earlier decisions of this Court, regard must be had to the use made of contributions of various types so as to compare the contributions made by each of the parties during the course of, and over the length of, their relationship (see, for example, In the Marriage of L A and E A Pierce (1998) 24 Fam LR 377; (1999) FLC 92-844; [1998] FamCA 74) But that is an entirely different proposition to, as it were, causally linking contributions with their asserted financial “product” or “value”. The former recognises that the nature, form and extent of contributions made by each of the parties might differ; the latter suggests that the absence of a causal link counts as no contribution at all.”[72]
[71] Ibid, [61].
[72] Dickons & Dickons [2012] FamCAFC 154, [14] (Bryant CJ, Faulks DCJ, Murphy J).
Dickons explains, consistently with the words of s 79 of the Act, that:
“15.The search for a causal link might be seen to come instinctively to the necessary inquiry and all the more so when regard is had to s 79(4)(a)which refers to financial contributions made “…directly or indirectly…”“…to the acquisition, conservation or improvement of any of the property …” and goes on to also refer to the financial contribution made “…otherwise in relation to any of that last-mentioned property…” The terms of that sub-paragraph might, naturally enough, be seen to suggest a causal link between those contributions and the “financial product” which those contributions of that type are said to have produced. That same requirement might also be seen to suggest that relevant contributions of that type can be seen to be quantifiable — or, at least, conceptualised — in monetary terms, in contradistinction to contributions made pursuant to s 79(4)(c).
16.While that apparent “causal connection” might be seen in s 79(4)(a) (and (b)), no such connection is apparent from the terms of s 79(4)(c); contributions of that latter type are not linked by the words of the sub-paragraph to the “…acquisition, conservation or improvement of any of the property…” or, indeed, to “property” at all. This is not a legislative oversight; the 1983 amendments to the Act which inserted the currents 79(4)(c) were specifically intended, relevantly, to remove any suggestion that there needed to be a causal link between contributions of that type and any particular asset or property. The Explanatory Memorandum to the Family Law Act Amendment Bill 1983 provides, at Clause 36, that a specific purpose of the re-casting of s 79(4) was, relevantly, to:
… revise sub-section 79(4) to remove the possibility of an interpretation of the sub-section requiring that there be a nexus between a spouse’s contribution and a specific item of property in section 79 proceedings …
17.Within that context, then, it is self-evident that financial contributions (whether direct or indirect) can be made to a relationship that have an effect on the property of the parties without those financial contributions finding their way directly into, or being directly linked to, specific property or, indeed, directly to the totality of the property available for distribution at the time of trial. Financial contributions can be made to the “…acquisition, conservation or improvement…” of property “…directly or indirectly…” (s 79(4)(a). Emphasis added). A financial contribution can be made indirectly by, for example, the use by parties of income or assets for purpose A freeing up the use of other income or assets for purpose B. Moreover, a particular financial contribution might have been used wholly in discretionary expenditure which, but for that contribution, would not have been available to the parties or would have required borrowings or a diminution of capital. Such a contribution can also, in that way, be seen, for example, as an indirect contribution to the conservation of property. Indeed, the principles discussed for example in In the Marriage of Kowaliw [1981] FamCA 70 and Townsend [1994] FamCA 144, can be seen as an exception to that general proposition.
18.Any and all such contributions, whether or not they sound in, or are directly linked to, the property available for distribution, should be considered and assessed together with the nature, form and extent of all other contributions of all types contemplated otherwise by s 79(4).
19.That is true of assets or income generated within the relationship and it is equally true of assets or income coming from outside of the relationship (for example, as here, in the form of inheritances). In the same way, s 79(4) specifically requires the Court to take into account contributions made to the welfare of the family (and substantively and “…not in any merely token way…”; see, Mallett v Mallett (1984) 156 CLR 605 at 636; 52 ALR 193 at 218; 9 Fam LR 449 at 471 per Wilson J) notwithstanding that those contributions may not be, or cannot be seen to be, directly linked to the available property at trial, or any increase or decrease in the value of the property.
20.Put another way, consistent with authority, the s 79 discretion involves as a necessary requirement that “… trial Judges weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such an assessment into a percentage of the overall property of the parties or provide for a transfer of property in specie in accordance with that assessment.” (In the Marriage of V and G Aleksovski (1996) 20 Fam LR 894 at 903; (1996) FLC 92-705 at 83,437). In Aleksovski, Kay J outlined the well-known “gold bar” analogy and said “[w]hat is important is to somehow give a reasonable value to all of the elements that go to making up the entirety of the marriage relationship” (at Fam LR 910; FLC 83,443).
21.Those same principles can be expressed as saying that the requirements of the section are met by approaching the assessment of contributions holistically and by analysing the nature, form, characteristics and origin of the property currently comprising that to which s 79 applies, and, in turn, analysing the nature, form and extent of the contributions (of all types) contemplated by s 79). That task is also undertaken by reference to the nature and form of the particular marriage partnership manifested by the particular circumstances of this particular marriage. Is it, for example, a relationship, as Deane J put it in Mallett at CLR 640–1; ALR 222; Fam LR 473 “…where the parties have adopted the attitude that their marriage constituted a practical union of both lives and property…” or is it, for example, a union where parties lived very separate domestic and financial lives?”[73]
[73] Ibid.
The approach to assessing contributions under s 79 is often explained (and even more frequently embarked upon) by Courts. Yet, the undertaking remains complex and rich with possibilities of error. In Jabour, the Full Court noted the ways in which the trial Judge erred in weighing the contributions of the parties:
“73.As can be sees the primary judge weighed the myriad contributions made by the parties against the contribution made by the Husband in bringing in Property A rather than treating Property A as one of the myriad contributions made.”[74]
[74] Jabour & Jabour (n 69), [73].
This approach had the effect of the contributions of the Wife in that case being overlooked,[75] including those contributions ‘made in the course of a long marriage during which both parties worked very hard and raised a family’.[76]
[75] Ibid, [82].
[76] Ibid, [83].
This was a relationship of 6 years. It is for this reason that, for short relationships, a Court may more readily assess contributions on an asset-by-asset basis instead of with reference to the global asset pool. The High Court confirmed in Norbis & Norbis [1986] HCA 17; 161 CLR 513 that:
“[w]hich of the two approaches is the more convenient will depend on the circumstances of the particular case. However, there is much to be said for the view that in most cases the global approach is the more convenient. It follows that the Full Court is quite entitled to prescribe that approach as a guideline in order to promote uniformity of approach within the Court.”[77]
[77] Norbis & Norbis (1986) 161 CLR 513, 523 (Mason and Deane JJ).
The words of s 79 do not impose any obligation to follow either approach but the Court’s discretion is, of course, subject to the s 79(4) considerations, the justice and equity of the order, and the relevant principles in ss 43 and 81.[78]
[78] Ibid, 521.
Notwithstanding the short duration of the marriage neither Counsel requested that I take an asset-by-asset approach in assessing the parties’ contributions.
In all of the circumstances I am satisfied that I can reach just and equitable property orders by assessing contributions globally to the entire non-superannuation pool.
The non-superannuation property pool, having a net total of $622,797.57, is made up in no small part by the investment properties purchased in 2017 and set out at paragraph 27 of these Reasons. The parties agree that, during the relationship, market forces appear to have boosted the value of these properties by approximately $200,000.00.
During this period of time, the Wife contributed to the relationship particularly as a homemaker. That said, the purchase of investment properties in 2017 would not have been possible but for the Husband’s equity in the properties he brought into the relationship. Further, the Husband’s income met the mortgage payments in respect of those properties. The Wife undertaking the predominant share of homemaking duties undoubtedly afforded the Husband with time, space and incentive to purchase the properties acquired during the relationship.
Consistent with Jabour and Dickons,[79] the parties’ contributions to the non-superannuation property pool are not weighed according to whether they in fact produced a gain. A contribution without any identifiable positive impact upon the property pool is not justifiably disregarded on that basis. While the Husband’s contributions may be more readily identifiable as ‘causing’ the increase to the property pool, the Wife’s contributions in this regard cannot be ignored.
[79] Jabour & Jabour (n 69), [61]; Dickons & Dickons (n 72), [14].
Further, the Husband made the overwhelming financial contributions to the relationship in general. The Wife, again in fulfilling the homemaker role, has also meaningfully contributed during the relationship.
That the parties’ relationship lasted 6 years distinguishes it from cases such as Jabour, in which the parties were married for 27 years. I also accept that the Wife spent approximately 15 months during the relationship outside of Australia. The Husband consented to the Wife spending months away from the matrimonial home, and accompanied her overseas at times. Nevertheless, there were times while the Wife was away that she did not make any homemaking or other contributions to the marriage.
Considering the myriad of contributions made by both parties during their short marriage, I assess the Wife’s contribution at 7% of the total net non-superannuation property pool.
SECTION 75(2) FACTORS
Section 75(2)(a) — the age and state of health of each of the parties
The Husband is 52 years of age, and the Wife is 58 years of age. Neither party appears to have health issues which impact their capacity to perform employed work.
The Wife has suffered a medical condition but appears to be in remission.[80]
[80] Affidavit of Ms Ngueng, Affirmed and Filed 19 May 2021 (n 2), [16]-[17], [27].
The Wife states in her affidavit that her general practitioner has advised her that ‘realistically, [she] will not be able to work for at least two years’.[81] She annexed a medical certificate from Dr S dated 7 May 2021 purportedly proving the same.[82] The medical certificate is hearsay evidence, and Dr S was not called and therefore was not cross-examined on its contents. The certificate is a business record and thus admissible as an exception to the hearsay rule.[83]
[81] Ibid, [29].
[82] Ibid, annex ‘1’.
[83] Evidence Act 1995 (n 15), s 69.
Regardless of admissibility, Dr S’s evidence does not corroborate the Wife’s assertion that she would not be able to work for at least two years. The certificate was prepared for, and provided to, Centrelink in support of an exemption from engaging with a job provider, and stated that the Wife was unfit for work from 6 May 2021 until 6 August 2021. [84] This is not a period of 2 years. The Wife was not, however, challenged on her claim in this regard.
[84] Affidavit of Ms Ngueng, Affirmed and Filed 19 May 2021 (n 2), [30].
Nevertheless, the Wife’s ability to work is affected by her limited understanding of English and her absence from the workforce for many years. The Wife does not appear to have any qualifications with which she could easily obtain regular paid employment.
Section 75(2)(b) — the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
Neither party seeks an order transferring any property from the Husband to the Wife. The Husband will, therefore, retain five properties as a result of this property settlement. These assets not only produce income, but should continue to appreciate in value over time.
The Husband earns approximately $100,000.00 per annum.[85] Both parties will retain the same level of superannuation. As stated above, the Wife’s capacity for gainful employment is affected by her age, her limited understanding of English and her absence from paid employment for many years. The parties remain in disagreement as to why the Wife was not employed — the Wife says it was a joint decision and the Husband denies this. The reality is that the Wife did not work during the relationship, which at present has had a negative impact upon her ability to obtain gainful employment post-separation.
[85] Financial Statement of Mr Yancey, 3.
In the decision of Mitchell & Mitchell (1995) FLC 92-601, the Full Court considered the impact of separation upon women:
“Importantly, and particularly in more recent times, there is the notorious circumstance that there is a significant gap between theory and reality for employment, especially for people in middle age, lacking experience and confidence, and who have been out of the skilled work-force for many years, and in the context of current high unemployment. Loss of security, missed promotion opportunities, loss of retraining in developing skills in an increasingly skilled work-force with the loss of confidence which this brings, particularly in times of high unemployment, are notorious circumstances of which the Court must take notice and apply in a realistic way. In this regard, we refer to the detailed analysis of comparable problems in Canada by the Supreme Court of Canada in Moge v Moge (1992) 43 RFL (3d.) 345 and the discussion by this Full Court in Best, supra, esp. at 80, 295 and the reference in those cases to the "feminization of poverty" and to some of the numerous articles upon that subject both here and overseas to that time. For useful articles discussing the judgment in Moge see also Toward an Equitable Distribution of Resources: Support after Moge and Moge (1994) 16 Advocates Quarterly 452 and Equality and Support for Spouses (1994) 57 Mod.L.R. 681.
Moge, supra, was drawn to counsels’ attention in the course of the appeal but neither presented argument about it. We are conscious of the circumstance that the Supreme Court emphasized that its decision was predominantly a matter of statutory interpretation of the relevant provisions of the Canadian Divorce Act 1985 and in these circumstances we think it would be inappropriate in this appeal for us to analyse the decision itself further. There is, however, one feature of that decision which we think it is relevant to highlight – the application of the doctrine of judicial notice.
The majority judgment delivered by L'Heureux-Dube J recorded a range of studies and commentaries concerning the general economic impact of divorce upon women. Her Honour said at 393-4:-
"Based upon the studies which I have cited earlier in these reasons, the general economic impact of divorce on women is a phenomenon, the existence of which cannot reasonably be questioned and should be amenable to judicial notice. More extensive social science data are also appearing. Such studies are beginning to provide reasonable assessments of some of the disadvantages incurred and advantages conferred post-divorce (see, for example, the study by Kerr (An Economic Model to Assist in the Determination of Spousal Support, Paper prepared for the Department of Justice and Status of Women Canada, 1992)). While quantification will remain difficult and fact-related in each particular case, judicial notice should be taken of such studies, subject to other expert evidence which may bear on them, as background information at the very least. (...) In all events, whether judicial notice of the circumstances generally encountered by spouses at the dissolution of marriage is to be part of the trial process or whether such circumstances merely provide the necessary background information, it is important that judges be aware of the social reality in which support decisions are experienced when engaging in the examination of the objectives of the Act."[86]
[86] Mitchell & Mitchell (1995) FLC 92-601, 81,997 (Nicholson CJ, Fogarty and Jordan JJ).
These comments, in my view, have application to the social reality of someone who has not worked for many years and has the added barrier of not speaking English well.
The Wife is financially vulnerable as she confronts many barriers to obtaining a reliable and reasonable income. I take into account under this factor her financial vulnerability.
Section 75(2)(d) — commitments of each of the parties necessary to enable them to support themselves and a child or another person that the party has a duty to maintain
The parties’ financial statements do not reveal, in any great detail, their necessary commitments.
During the proceedings, on 15 July 2020, the Wife obtained an order for spousal maintenance in the sum of $250.00 per week. Counsel for the Wife submitted, in opening, that the spousal maintenance payments ceased by agreement because the Husband had taken on the payment of all of the parties’ debt, including credit card and mortgage payments. As a result, the Husband did not have the financial capacity to make any further payment to the Wife. I draw from this that the Husband’s income is devoted, almost entirely, to the expenses associated with his debts and living expenses. The Wife, meanwhile, finds it challenging to make ends meet with her Centrelink allowance.
The Husband, by comparison to the Wife’s position, has a strong income. This places him in a better position than the Wife to meet the necessary commitments of himself resulting from the orders that this Court will make.
Section 75(2)(f) — subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under any law or superannuation fund, and the rate of any such pension, allowance or benefit being paid to either party
The Wife receives the Centrelink Newstart allowance (now referred to as the ‘JobSeeker’ allowance) in the amount of $635.80 per fortnight.[87] The Wife was receiving the Coronavirus Supplement, in the amount of an additional $550.00 per fortnight, but this payment has since ceased.
[87] Affidavit of Ms Ngueng, Affirmed and Filed 19 May 2021 (n 2), [33].
The Husband, on the other hand, has income producing assets and receives $1,912.96 per week from working full-time as a factory hand.[88] The Husband has worked for the same employer for 32 years.[89]
[88] Financial Statement of Mr Yancey, Affirmed and Filed 3 May 2021 (n 6), 2-3.
[89] Ibid, 2.
The Husband’s financial future is far more secure than the Wife’s.
The Husband and the Wife have agreed to divide equally the husband’s small superannuation entitlement of $60,831.72.
The Husband agreed under cross-examination that his balance is likely to have increased since 1 September 2020, being the date of his statement annexed to his affidavit.[90]
[90] Affidavit of Mr Yancey, Affirmed and Filed 3 May 2021 (n 1), annex ‘1’.
The Husband has the ability to add to his small superannuation holding, given his ongoing employment. He is likely able to accumulate a reasonable level of superannuation if he continues to work until retirement age. The Wife, conversely, is unlikely to add significantly to the small amount of superannuation she will receive.
It is noted that the Husband cashed in $80,000 of his superannuation in 2017, which was invested into the marriage, and used to pay living expenses when he was recovering from an injury.[91]
[91] Ibid, [137].
Section 75(2)(g) — a standard of living that in all the circumstances is reasonable
The parties did not adduce a great deal of evidence concerning their relative standards of living. I assume that, by virtue of his greater income and his asset holdings, the Husband’s financial circumstances and standard of living are stronger than that of the Wife.
Section 75(2)(j) — the extent to which a party has contributed to the income, earning capacity, property and financial resources of the other party
Both parties contributed to each other’s income, earning capacity, property and financial resources during their marriage. The Wife, through her homemaking contributions, allowed the Husband to devote more time and energy to his work and other projects. The Husband, in turn, has provided the Wife with the opportunity to share in the assets of the relationship, which have seen an increase in value throughout the relationship.
Section 75(2)(k) — the duration of the marriage and the extent to which it has affected the earning capacity of each party
As set out at paragraphs 118 – 131 above, the relationship lasted approximately 6 years.
The relationship did not affect the Husband’s earning capacity. He continues to work full time, as he did prior to the relationship’s commencement. The relationship may have impacted the Wife’s earning capacity, as she did not work or undertake training during the relationship.
As stated previously in these Reasons, there remains disagreement as to why the Wife did not seek or obtain further employment during the relationship. Notwithstanding this disagreement, the evidence establishes that the Wife did in fact spend time out of the workforce for the entirety of the relationship except for one week.
On the evidence, it appears that the Husband did not object to the Wife not undertaking paid employment during the marriage. The implicit agreement between them appeared to be that the Wife was the homemaker and the Husband earned the income. A consequence of this was that the Wife did not improve her skills, nor did she undertake training that may have assisted her to find employment post separation. That said, the Wife’s poor skill base and language barriers existed prior to the relationship’s commencement.
I cannot ignore that this was a short marriage of 6 years, with the Wife spending over a year of that period outside of Australia.
Both parties referred me to Lane & Wharton [2010] FamCA 18, in which Watts J explored the authorities on contributions during short marriages in which there is significant financial disparity between the parties:
“Disparity in financial circumstances and the duration of the marriage: ss 75(2)(b) and ss 75(2)(k)
158.In Farmer and Bramley (2002) FLC 93-060 Kay J discussed Guest J’s analysis of s.75(2) considerations and said at paragraph 71:-
“The manner in which s 75(2)(b) can be utilised to bring about an adjustment of property interests was discussed fully in Collins (1990) FLC 92-149 by Ellis, Fogarty and Gun JJ. There their Honour's upheld Nygh J's judgment making an adjustment of $1,000,000 in favour of a Wife, who already owned assets worth more than that sum. Nygh J had specifically identified a disparity in capital as a basis for making that adjustment. My apologies for setting out such an extensive passage but it seems to me to put to rest any suggestion that there can only be an adjustment under s 75(2)(b) if there is some causal nexus between the disparity and the marriage itself”
159.Kay J then extensively quoted from Collins (1990) FLC 92-149 and at paragraph 94 of the judgment his Honour concluded that the disparity in capital positions of the parties reached as a result of the distribution on contributions (at step 2) is a matter that can be taken into account (by inference under s.75(2)(b)). That is, his Honour disagreed with Guest J’s proposition that there had to be a connection between the capital position of the parties and the life of the marriage before weight could be placed upon a disparity in the financial positions of the parties in the balancing exercise.
160.More recently in GBT & BJT (supra) the Full Court (Kay, Holden and Warnick JJ), without specifically rejoining the debate emphasised that when giving weight to sub section 75(2)(b) FLA, the other subsections of s.75(2) FLA including subsection 75(2)(k) FLA also have to be weighed.
161. At paragraph 64 of GBT & BJT the Full Court said:
“We are inclined to the view that, in addressing the weight to be given to the disparity in the parties’ incomes and earning capacities, his Honour may well have given insufficient weight to the shortness of the marriage (relevant under section 75(2)(k)) and to the minimal nature of the Wife’s contributions, particularly having regard to the fact that such contributions as she did make were mainly in the homemaker sphere, the Husband paid for the provision of a great deal of domestic assistance, and there were no children of the parties (relevant under section 75(2)(j)).”
162.Earlier in Kennon [1997] FamCA 27; (1997) FLC 92-757, Fogarty & Lindenmayer JJ when dealing with 75(2) factors said of the facts in that case at page 84,303:
“On the one side, there are circumstances that this was a relatively short marriage, with no children, and the Wife is able to continue employment of the type which she had previous to cohabitation....On the other hand, there are huge differences between the parties’ incomes, assets, future income-earning capacities and superannuation benefits. His Honour pointed out on a number of occasions that these differences existed at the time the parties commenced to live together and that if their paths had not crossed and if they had not lived together for five years it is likely that the difference would have remained the same. However, we are not persuaded that that is the beginning and end of the issues. Whilst we acknowledge that Section 79 is not a source of social engineering or as a means of evening up of the financial positions of the parties to the marriage, (see, for example Clauson & Clauson (1995) FLC 92-545; Waters and Jurek (1995) FLC 92-635 and Lyon and Bradshaw (Full Court 16 May 1997, not yet reported)), nevertheless the fact is that these parties were married for a not insignificant period, each made contributions which we have discussed and their obligations to each other do not cease on separation. Their marriage carried with it advantages and obligations and, so far as the settlement of their property on separation or divorce is concerned, those obligations are to be determined in accordance with the detailed provisions of s.79.”
163. The “not insignificant period” of the Kennon marriage was seven years.
164In 2007 the median duration of an unsuccessful marriage to date of separation was 8.9 years. In 1984 it had been 7.7 years.
165.In this case the cohabitation 5 years. So, the parties’ marriage is on the shorter side of median duration.”[92]
[92] Lane & Wharton [2010] FamCA 18, [158]-[165]. See also [242], where Watts J adopted a global approach and assessed the Wife’s contribution to assets as 80%, and the Husband’s as 20%. Notwithstanding that the marriage only endured for 5 years, Watts J considered the global approach to lead to a ‘more just assessment of contributions’.
As an aside, I note GBT & BJT [2005] FamCA 683 as an example of a successful Appeal and subsequent re-exercise of the discretion under s 79. That case also involved a 6 year marriage in which the husband made the overwhelming financial contributions. The wife made very little contribution, including as a homemaker. She worked throughout the relationship, but did not financially contribute to the relationship in any great measure. Upon separation, the wife re-partnered and earned a strong income, albeit not as much as her former husband.
The Full Court in GBT & BJT ordered that the wife receive 10% of the property pool, being 7.5% for contributions and 2.5% for adjustment under the s 75(2) factors. In making the adjustment of 2.5% the Court took into account that the Wife had partnered and that she earned a comfortable income.[93] The Full Court’s order was markedly different from that of the primary Judge, who concluded that the wife should receive 17.5% of the parties’ net property. That figure consisted of 12.5% for contributions and 5% for the s 75(2) factors.[94]
[93] GBT & BJT [2005] FamCA 863, [68]-[69].
[94] Ibid, [49].
The aspects of GBT & BJT concerning the wife’s contributions and other relevant factors clearly diverge from the facts with which I am currently faced.
GBT & BJT and Lane & Wharton both indicate that Courts must act pragmatically when assessing entitlements between parties to short relationships. With respect to childless marriages of less than median length, Watts J stated that:
“[t]here has to be a higher level of scrutiny of the making of financial contributions than would otherwise be the case in a long marriage.”[95]
[95] Lane & Wharton (n 92) [150].
I take into account the short duration of the parties’ marriage.
Section 75(2)(m) — if either party is cohabiting with another person–the financial circumstances relating to the cohabitation
There is no evidence as to whether or not either party has re-partnered.
Section 75(2)(n) — the terms of any order made or proposed to be made under section 79 in relation to the property of the parties
I note with respect to this factor the Full Court’s remarks in Marsh & Marsh [2014] FamCAFC 24 in allowing the appeal before them that:
“[t]here is nothing in any of the ss 79(4)(d) to (g), or elsewhere in s 79 which requires a judge to calculate in dollar terms the differential achieved between the parties in the judge has apportioned assessment of contribution in percentage terms. Nevertheless, it is a matter of common practice developed by judges exercising discretion under s 79 of the Act, to carry out such an exercise, at least at the time matters relevant to s 79(4)(e) are considered. Section 75(2)(n), on one level at least, invites such an exercise. Had the Federal Magistrate carried out such an exercise, in this case, he may have reached a different determination as to the amount of adjustment which was required under s 75(2).”[96]
[96] Marsh & Marsh [2014] FamCAFC 24, [174] (Ainslie-Wallace, Murphy and Le Poer Trench JJ).
I undertake the exercise spoken of by their Honours at paragraphs 233 – 242 of these Reasons upon considering whether the assessments, adjustments, and effect of the ultimate order made are just and equitable.
The parties have agreed to equally divide their superannuation entitlements. This will result in a splitting order of $30,415.50 to the Wife pursuant to s 90XT of the Act.
With respect to non-superannuation assets, I have assessed the Wife’s contributions as 7%. The practical result of this is that the Husband retains assets with a value of $579,201.74, and the Wife retains assets with a value of $43,595.83.
Looking at the asset pool as a whole, the Wife will receive assets including superannuation of $74,011.33, and the Husband $609,617.24.
I note here that the above settlement calculations, based only on the assessment of contributions, plainly reveal a remaining and significant capital disparity.
Further, the Husband’s assets are quality assets, and produce income for the Husband by way of rent. The Husband is also able to rent out a sign on his land, for which he can receive $300.00 per annum.
Section 75(2)(o) — any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account
The Wife is more financially vulnerable than the Husband. She relies solely on Centrelink allowances, and holds no significant property aside from a motor vehicle.[97]
[97] Financial Statement of Ms Ngueng, Affirmed and Filed 19 May 2021 (n 51), [7].
The Husband is in a strong position, in which his income-producing and appreciating assets will build upon his wealth as time progresses. His strong and stable income best places him to deal with the debt associated with these assets.
Conclusion in relation to 75(2) factors
I conclude that there should be an adjustment to the Wife under s 75(2) of 6.5%.
I make this conclusion with particular reference to the following factors:
(a)the significant income and capital disparity between the Husband and the Wife;
(b)their relative ages;
(c)the Wife’s current unemployment alongside factors that make it more difficult for her to secure a strong and stable income, including her absence from the workforce for many years, her lack of training, and limited English;
(d)the Wife’s reliance upon Centrelink benefits;
(e)the parties superannuation holdings, and the Husband’s greater ability to increase his superannuation holding;
(f)the Husband’s retention of income-producing and appreciating assets; and
(g)the fact that the relationship subsisted for 6 years, with the Wife spending part of that period outside of Australia.
THE OVERALL EFFECT OF THE ORDER
My assessment of the parties’ contributions, and the s 75(2) factors, leads me to conclude that the parties’ non-superannuation assets should be divided on an 86.5 /13.5% basis in favour of the Husband.
The non-superannuation asset pool has a net value of $622,797.57.
The Husband will retain assets valued at a total of $538,719.90.
The Wife’s entitlement of the non-superannuation assets amounts to a sum of $84,077.67. The Wife will retain her car valued at $3,525, meaning that $80,552.67 is payable by the Husband to her to account for the gap.
The Wife will receive a further $2,640.00, being the Husband’s share of the valuation fees as agreed.
This results in the Husband making payment to the Wife in the amount of $83,192.67
The Wife will also receive a split of superannuation by agreement in the amount of $30,415.50.
The total net pool including superannuation amounts to $683,628.57. Including superannuation the Wife will receive 16.75% of the total pool.
Finally, I have included a provision in the order to allow the Wife to collect her belongings from the C Road property. There was little evidence regarding the need for such an order, but the Wife sought an order with those terms.[98] Since the Husband did not contradict the Wife’s evidence in this respect, I will make a restrictive order allowing the Wife to collect her personal belongings.
[98] Affidavit of Ms Ngueng, Affirmed and Filed 19 May 2021 (n 2), [39].
IS THE ORDER JUST AND EQUITABLE?
I am satisfied that, given the short period of marriage, the parties’ contributions throughout the marriage and my assessment thereof, and the consideration of the factors under s 75(2), ordering an adjustment of the parties’ property interests as set out above is just and equitable.
I certify that the preceding two hundred and forty-two (242) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull. Dated: 28 October 2021
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