Norman and Sinclair

[2017] FCCA 2069

FEDERAL CIRCUIT COURT OF AUSTRALIA

NORMAN & SINCLAIR [2017] FCCA 2069

Catchwords:
FAMILY LAW – Property – de facto relationship.

Legislation:

Family Law Act 1975, s.90SF

Cases:

Kennon & Kennon (1997) 139 FLR 118

Applicant: MS NORMAN

Respondent: MR SINCLAIR

File Number: ADC 4108 of 2016

Judgment of: Judge Young

Hearing dates: 15 & 16 August 2017

Date of Last Submission: 16 August 2017

Delivered at: Adelaide

Delivered on: 16 August 2017

REPRESENTATION

The Applicant: In person

The Respondent: In person

ORDERS

1. That the husband pay the wife the sum of THIRTY TWO THOUSAND DOLLARS ($32,000.00) within ninety (90) days.

2. That with respect to the husband’s superannuation interest with the (omitted) Superannuation (member number (omitted)) in accordance with s.90MT(1) of the Family Law Act 1975 as amended whenever a splittable payment becomes payable:

   (a)that the base amount of TWENTY FIVE THOUSAND DOLLARS ($25,000.00) be allocated to the wife out of the husband’s interest in the Fund;

   (b)the wife shall be entitled to be paid an amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations2001 using the base amount and there shall be a corresponding reduction in the entitlement of the husband.

3. The wife do serve a copy of these orders upon the Trustee of the (omitted) Superannuation Scheme within seven (7) days of the date hereof.

4. If no objection is received from the said Trustee, and no application is made by the Trustee to vary this order within 21 days after service upon them, then this order takes effect 28 days after service and becomes binding on the Trustee.

5. That paragraph 2 of these orders has effect from the operative time.

6. The operative time for the purposes of these orders is four (4) business days after the expiry of the time specified in paragraph 4.

7. That the parties have liberty to apply as to consequential orders.

8. That all extant applications be otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4108 of 2016

MS NORMAN

Applicant

And

MR SINCLAIR

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgement were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.   

2. This is a de facto property matter. I will refer to the de facto wife as the wife and the de facto husband as the husband. The age of the parties is as follows: the wife is 43 and the husband is 39 years old. There are no children of the relationship although the wife has three children from a previous relationship in (country omitted). Her eldest child, A, lives with her and has done so since (omitted) 2014. The two younger children live in (country omitted) with their father. 

3. The parties began to live together in (omitted) 2011 and they separated in February 2016.  The relationship lasted four and a half years.  The wife arrived in Australia, initially on tourist visa, a relatively short time before the relationship began. She did not obtain a spouse visa until March 2014 and was not able to work before that time.

4. It appears that both parties had a somewhat troubled past. There are records of the wife receiving treatment or counselling for, and I quote “trauma” as a result of her experiences in (country omitted), possibly as a result of a previous relationship. There is, similarly, medical evidence that the husband had been treated for depression and continued to receive treatment during the relationship. 

5. The relationship did not begin under particularly auspicious stars. In addition, the parties are very different in personality. The husband is a fastidious person; careful with his records and careful with records of money. The wife is more casual in her approach. I am satisfied that these differences were a significant source of conflict between the parties.

6. The assets at the beginning of the relationship were as follows. The wife said she had savings of €7,000 approximately or about AU$10,000.  This sum appears to have been spent by 2012, particularly on a holiday in that year to (country omitted).

7. The wife said that she paid her own fares for that holiday and, in addition, paid for the shipping of furniture from (country omitted) to Property B in South Australia. I expect after that there would have been little of anything left of her savings.

8. At the beginning of the relationship the husband owned a home at Property A. He does not expressly say whether the property was subject to mortgage at that time or the extent of any mortgage but as I understood his evidence – and this was not challenged – he said his parents had given him or lent him money to pay off the home loan in 2004. 

9. I am satisfied that on the balance of probabilities that there was no mortgage against that property at the time the parties began to live together. The husband also had some superannuation although the amount of superannuation at the beginning of the relationship is not specified in his material. 

10. After separation the husband purchased another property in Property B.  That property is listed in the list of assets in his affidavit at a value of $308,000 and with a mortgage debt of about $232,000.  He also says that he owes his parents $80,000 and said that $60,000 of that was put towards the purchase of that second property. While the $80,000 might not be exactly secured against that property, in the sense of secured by mortgage, I am satisfied that both those liabilities should be set off against the value of that property.

11. The net result is that there is little or no equity in real terms or, at least, after taking into account the debt to the husband’s parents. 

12. I might say one of the difficulties in this matter has been that both parties are unrepresented. They had difficulty identifying issues. Their evidence on issues was deficient in many respects. Their cross-examination of each other was generally ineffective even if it managed to be relevant.

13. The assets of the parties at trial, with agreed values, were as follows:

    a)The property at Property A:  $210,000.

    b)A second property at Property B valued at $308,000.

    c)According to the wife, she has home contents which she said are worth $2,000.

    d)There are the husband’s savings which he says are $15,119. 

    e)The wife says she has savings of $472.

    f)And in addition there are three motorcycles owned by the husband:

    i)A (omitted) at $5,700.

    ii)Another (omitted) at $4,900.

    iii)And a (omitted) at $2,500.

    g)The wife says she has a car worth $2,000.

    h)The husband, in addition, owns shares which he says are worth $8,431.

14. None of these values were challenged and I take them as accepted.  The total of those assets is $559,122.

15. There are liabilities. There is the mortgage on the second Property B property which stands at $232,352. And then there is also the husband’s debt to his parents at $80,000. The total of those two debts is $312,352. 

16. The net value of non-superannuation assets is thus $242,298.

17. The wife mentioned that she had a debt of €8,000 to €9,000 as a result of her university education in (country omitted).  Given her vagueness about the amount of the debt and its extent and the circumstances of it being incurred, I am not prepared to include that debt in the liabilities for the purposes of calculating the asset pool of the parties. Also it was a debt of the wife preceding the relationship by a considerable time. 

18. In addition there is superannuation. The husband has a superannuation interest worth $166,596 and the wife a superannuation interest of $493. So the total of that is $167,089. 

19. On contributions, the husband was employed throughout the relationship as a (occupation omitted) and, according to his statement of financial circumstances, earns $62,400 a year.  

20. The wife is presently in receipt of Centrelink payments of approximately $1,000 a fortnight. The wife told me that she is presently working as a (occupation omitted). She has, it appears, tertiary qualifications from (country omitted). As I read her curriculum vitae that would appear to be a degree in (omitted), specialising in (omitted), and she appears to have part-completed (omitted) studies. She said in cross-examination that she could easily obtain work in that field, that is, generally the (omitted) field, but she chose not to. She has been employed in more modest employment – in Australia at least – and says she is now working (employment omitted), as I understand it.

21. I am satisfied that the wife has a significant earning capacity which is not being fully utilised.  The wife did not work until March 2014 when she obtained a spouse visa and the right to work in Australia. That is, for the first two and a half years of a four and a half year relationship, the wife did not work outside the home.

22. There is clear evidence that the husband expected the wife to perform domestic tasks during this period: cooking, cleaning, feeding the pets and so on. That she performed domestic tasks regularly is confirmed by the evidence from Mr M who was not cross-examined. She also gave evidence that she had done some renovations around the home, painting rooms and the like and that again was not challenged. 

23. From the period that the wife obtained work, in about April 2014, she worked for a period in a (employer omitted) and she worked in an organisation (employment omitted). Nevertheless her employment appears to be somewhat intermittent - I might say there was no detailed history of her work – and she left both those jobs in circumstances that are unclear. 

24. In 2014 the mother’s eldest daughter, A, arrived and began living with the parties. I am satisfied that the husband made a significant contribution to not only the support of the mother but to the support of A as well. For example, the husband throughout, it appears, paid for the mobile phone plans for both the mother and her daughter.

25. I am satisfied that the bulk of the financial contributions in this matter were made by the husband. An example of this was the husband’s assertion that he had paid the wife’s bills to the extent of $15,500. She denied that but the husband pointed to his bank statements for the period January 2015 to August 2015, a period in which the wife was employed. He pointed to frequent transfers to the wife’s bank account –usually some hundreds of dollars a week. The wife denied that there were such transfers but I accept that they were made and I accept the husband’s evidence about the payment of the wife’s bills to the extent of $15,500.

26. I am satisfied that notwithstanding the wife’s employment at various times during the relationship, particularly in the last two years of the relationship, that the husband contributed the bulk of financial support during the period and to a very significant degree supported the wife and her daughter.

27. The wife alleged that the husband was guilty of family violence during the relationship. The evidence about that was unsatisfactory.

28. The wife refers to two specific events. She alleges that the husband held a knife to his wrists and threatened to harm himself in 2012 and said that as a result she required mental health assistance. The husband did not deny that event.

29. The other event she pointed to occurred in December 2015 when the wife alleged that the husband forced her to the ground during, it was implied, an episode of family violence and she ruptured her anterior cruciate ligament.  The husband does not deny that the wife was injured but he says that she was pushing him. 

30. I cannot make a finding about this incident beyond the fact of the injury, which I am satisfied occurred. The husband paid for the expenses associated with reconstructive surgery for the wife’s knee. There is no evidence that the wife has any continuing disability and her present employment which involves, I infer, physical work suggests the contrary.

31. I am not prepared to find that the wife’s contribution has been made more arduous by family violence in the sense described in Kennon & Kennon (1997) 139 FLR 118.

32. Overall, I find the contributions are 85 per cent by the husband and 15 per cent by the wife. If that is applied to the non-superannuation assets then the figure is – for 15 per cent of the assets, less $4,472, being the value of the assets in the wife’s hands – $31,872 which I will round up to $32,000. 

33. In respect of superannuation, I find that the same percentage contribution applies, that is, 85 per cent by the husband and 15 per cent by the wife. 

34. After taking into account the small amount of the wife’s superannuation and after applying the 15 per cent and a slight rounding adjustment – I will make a splitting order in favour of the wife of $25,000. 

35. I have considered whether an adjustment is required for section 90SF factors and I am satisfied that no further adjustment is required.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 30 August 2017