O’Loughlin & Waverley
[2023] FedCFamC1F 310
•24 April 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
O’Loughlin & Waverley [2023] FedCFamC1F 310
File number(s): PAC 716 of 2018 Judgment of: RIETHMULLER J Date of judgment: 24 April 2023 Catchwords: FAMILY LAW – PROPERTY – Application for property adjustment under s 79 of the Family Law Act 1975 (Cth) – Length of relationship in dispute – Significant differential of time contended between the parties – Where the husband acquired several properties in his name assisted by the homemaking contributions of the wife – Wife conceded to fraudulently claiming social security payments – Where wife lived in husband’s properties after separation – Evidence given by many witnesses to the parties’ relationship – Long relationship found – Fraudulent social security payments not included on balance sheet – 60/40 split of property pool in favour of husband Legislation: Evidence Act 1995 (Cth) s 161(1)
Family Law Act 1975 (Cth) s 79
Cases cited: Chancellor & McCoy (2016) FLC 93-752; [2016] FamCAFC 256
Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Division: Division 1 First Instance Number of paragraphs: 126 Date of last submission/s: 27 March 2023 Date of hearing: 24 November – 2 December 2022; 28 February 2023; 1 – 3 March 2023; 17 March 2023 Place: Sydney Counsel for the Applicant: Mr Bennett Solicitor for the Applicant: Coleman Greig Lawyers Counsel for the Respondent: Mr Walmsley & Mr Cain Solicitor for the Respondent: Barry F Cosier & Associates ORDERS
PAC 716 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS O'LOUGHLIN
Applicant
AND: MR WAVERLEY
Respondent
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
24 APRIL 2023
THE COURT ORDERS THAT:
1.Within twenty-eight (28) days of the date of these Orders, each party shall do all acts and things necessary to cause the following to occur simultaneously:
(a)Remove the Caveat … from the title of the property situated at and known as B Street, Suburb C, in the State of New South Wales (being the whole of the land contained in Folio Identifiers … and …) (“the Suburb C property”) at the wife’s cost;
(b)Transfer the Suburb C property to the sole name of the wife at the wife’s cost, such that the husband shall sign all documents presented to him by the wife and the wife shall do all other things necessary to cause such transfer.
2.Pending transfer of the Suburb C property pursuant to Order 1(b) above, the wife shall have exclusive occupation, and the husband shall do all acts and things necessary to provide vacant possession of the Suburb C property.
3.Pending compliance with Order 1(b) above, the wife shall be responsible for all statutory rates and charges, other utilities, insurances, outgoings and expenses in relation to the Suburb C property incurred prior to the date of transfer and shall make all such payments as and when they fall due and hereby indemnifies the husband in respect of all other liabilities incurred prior to the date of transfer.
4.Within fourteen (14) days of the date of these Orders (or such longer period as agreed to by the wife in writing), the husband shall pay, or cause to be paid to the wife, a sum equivalent to the wife receiving 40 per cent of the net asset pool, being $1,538,438.40, with such payment to be made to the Coleman Greig Trust Account, D Bank, Coleman Greig Lawyer Pty Ltd Trust Account No. …13.
5.In the event that payment is not made by the husband to the wife in compliance with Order 4 above, within a further fourteen (14) days of non-compliance, the husband shall do all acts and things and sign all documents necessary to:
(a)Transfer to the wife, from the monies held in Westpac Account No. …06 the amount calculated in accordance with Order 4 above (and any interest that arises under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)) and in accordance with Order 19(a) below; and
(b)In the event that the sum paid in accordance with Order 5(a) is insufficient to satisfy Order 4, THEN cause the property situated at and known as E Street, Suburb F, in the state of New South Wales (being the whole of the land contained in Folio Identifier …) (“the Suburb F property”) to be sold by private treaty at the earliest possible date and that the proceeds of sale shall be disbursed as follows:
(i)In payment of the agent’s commission, advertising expenses and legal expenses of the sale;
(ii)In payment of the costs incurred in relation to the nomination of a real estate agent (if any), in payment of the costs incurred in relation to the nomination of a solicitor (if any), and in payment of the costs in relation to the determination of selling price by the President of the New South Wales division of the Australian Property Institute, or his/her nominee (if any);
(iii)Discharge of mortgage (if any) secured on the title of the Suburb F property;
(iv)In payment of the wife of the balance owing to her pursuant to Order 4 above, together with interest pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth);
(v)In payment of the balance (if any) to the husband.
6.In the event there is not an exchanged sale contract for the Suburb F property on foot by private treaty pursuant to Order 5 above within six (6) months of these Orders (with a settlement date no longer than 8 months from the date of these orders), then the husband shall forthwith do all things necessary to cause the Suburb F property to be sold by public auction at the earliest possible date, with a reserve price as agreed or, in absence of agreement, a sum of 90 per cent of the value as set out in the updated valuation report from G Company, and on completion of the sale the proceeds of sale shall be disbursed as provided for in Order 5 above.
7.Simultaneously with the settlement of a sale effected in accordance with Order 5 or Order 6 above, the wife shall remove, or cause to be removed, the Caveat … secured against the title of the property of the Suburb F property at the wife’s cost.
8.In the event that there is a shortfall in the monies received by the wife pursuant to Order 5 and Order 6 above, such that the wife receives less than the sum required pursuant to Order 4, then, within a further fourteen (14) days of compliance with Order 6 above, the husband shall do all acts and things and sign all documents necessary to cause the property situated at and known as H Street, J Town, in the state of New South Wales (being the whole of the land contained in Folio Identifier …) (“the Suburb K property”) to be sold by private treaty at the earliest possible date and that the proceeds of sale shall be disbursed as follows:
(a)In payment of the agent’s commission, advertising expenses and legal expenses of the sale;
(b)In payment of the costs incurred in relation to the nomination of a real estate agent (if any), in payment of the costs incurred in relation to the nomination of a solicitor (if any);
(c)Discharge of the mortgage (if any) secured on the title of the Suburb K property;
(d)In payment to the wife, calculated as follows:
(i)$1,538,438.40, being a sum equivalent to the wife receiving 40 per cent of the net asset pool;
(ii)Less the monies received by the wife pursuant to Order 5 and Order 6 above;
(iii)Plus interest on the outstanding amount, being the amount in Order 8(d)(i) less the amount in Order 8(d)(ii), pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth);
(iv)In payment of the balance (if any) to the husband.
9.In the event there is not an exchanged sale still on foot of the Suburb K property by private treaty pursuant to Order 8 above within three (3) months of the time provided for in Orders 8 to offer the property for sale (with a settlement date no later than six (6) months after the time provided for in Order 8,to offer the property for sale), then the husband shall forthwith do all things necessary to cause the Suburb K property to be sold by public auction the earliest possible date, with a reserve price as agreed between the husband and wife (in writing) or, in absence of agreement, a sum of 90 per cent of the value as set out in the updated valuation report from G Company, and on completion of the sale the proceeds of sale shall be disbursed as provided for in Order 8 above.
10.For the purposes of Orders 5, 6, 8 and/or 9 above:
(a)The Real Estate Agent to act in respect of the sale of the Suburb F property and Suburb K property shall be as agreed by the parties and, failing agreement, within seven (7) days of the operative date of the respective Order (5, 6, 8, or 9), shall be a Real Estate Agent appointed by the President of the Real Estate Institute of New South Wales or his/her nominee;
(b)The Solicitor/Conveyancer to act in respect of the sale of the Suburb F property and Suburb K property shall be as agreed by the parties and, failing agreement, seven (7) days of the operative date of the respective Order (5, 6, 8, or 9), shall be a Solicitor/Conveyancer appointed by the President of the Law Society of New South Wales or his/her nominee; and
(c)The sale price for the Suburb F property and Suburb K property, to be sold by private treaty, shall be as agreed between the parties and, failing agreement, within seven (7) days of the date of the relevant order, shall be any reasonable offer equivalent to or over a price determined by the President of the New South Wales Division of the Australian Property Institute or his/her nominee and the value as set out in any updated valuation report by G Company; and
(d)The agent/s and conveyancer/s shall communicate with the wife regarding the progress and sale of the Suburb F property and Suburb K property.
11.Pending the sale of the Suburb F property and Suburb K property, the husband shall have the right to exclusive occupation of the Suburb F property and Suburb K property and shall:
(a)Keep the Suburb F property and Suburb K property in good order and repair;
(b)Cooperate in a reasonable way with the requests of the real estate agents and/or prospective purchasers including, but not limited to:
(i)Providing keys to the Suburb F property and Suburb K property to obtain access; and
(ii)Doing all things necessary to facilitate access to the Suburb F property and Suburb K property at all reasonable times and facilitating access for inspection without interference;
(c)Maintain the Suburb F property and Suburb K property in a presentable condition so as to facilitate the sale including, but not limited to, presenting the property in a neat and tidy condition at all times when the property is subject to inspection;
(d)Do all things necessary to facilitate a sale of the Suburb F property and Suburb K property at the earliest possible time and shall refrain from doing or saying anything which has the effect of hindering or preventing an inspection or sale being effected.
12.Should the husband fail to comply with Order 5(b) or Order 8 above, then:
(a)Following 28 days of non-compliance with Order 11(b) or Order 8 above, the wife shall (upon filing an affidavit attesting to the non-compliance) be deemed Trustee for sale and cause the following to occur:
(i)If not already sold, the sale of the Suburb F property pursuant to Order 5(b) and Order 6;
(ii)The sale of the Suburb K property pursuant to Order 8 and Order 9 (if necessary for compliance with Order 4 above).
13.For the purposes of Order 12 above:
(a)Order 11 shall remain in effect except that the husband shall also allow the wife reasonable access to the Suburb F property and/or Suburb K property and facilitate the inspection and sale of those properties;
(b)Should the parties not agree to a real estate agent pursuant to Order 10(a) above, then within 14 days of the wife’s appointment as Trustee, the wife shall be at liberty to appoint a real estate agent/s to sell the Suburb F property and/or Suburb K property;
(c)Should the parties not agree to a conveyancer pursuant to Order 10(b) above, then within 14 days of the wife’s appointment as Trustee, the wife shall be at liberty to appoint a conveyancer/s to sell the Suburb F property and/or Suburb K property;
(d)The wife shall be at liberty to accept any reasonable offers as defined in Order 10(c) or, in absence of such an offer within six (6) months of being appointed as Trustee, any reasonable offer over 80 per cent of the value of the Suburb F property and/or Suburb K property as per any updated valuation report from G Company.
14.Except as otherwise provided for in these Orders, the husband shall retain, to the exclusion of the wife, his right, title and interest in the following:
(a)The Suburb F property (subject to Order 5 and Order 6 above);
(b)The Suburb K property (subject to Orders 4, 5, 7 and/or 8 above);
(c)All livestock currently held on the Suburb F property and Suburb K property;
(d)All plant, machinery and equipment currently held on the Suburb F property and Suburb K property;
(e)Any and all motor vehicles currently in the husband’s name;
(f)Monies loaned to L Pty Ltd, by way of mortgage … secured against the title of M Street, N Town (“the Suburb O property”), including any interest received;
(g)All other personal property now in his respective possession or control.
15.Except otherwise provided for in these Orders, the wife shall retain, to the exclusion of the husband, her right, title and interest in the following:
(a)Monies in Commonwealth Bank Account No. …79;
(b)Monies in NAB Account No. …24;
(c)All property and chattels currently situated on the Suburb C property including, but not limited to, livestock, equipment and machinery and motor vehicles;
(d)Motor Vehicle 1;
(e)Motor Vehicle 2;
(f)Motor Vehicle 3
(g)All other personal property now in her possession or control.
16.The husband shall indemnify and keep indemnified the wife in relation to any and all liabilities currently in his sole name or held jointly with any other person.
17.Following compliance with Order 1 above, the wife shall indemnify and keep indemnified the husband in relation to the following:
(a)All statutory rates and charges, other utilities, insurances, outgoings and expenses in relation to the Suburb C property; and
(b)Any other liabilities currently in her sole name or held jointly with any other person.
18.Pending compliance with Orders 1 and 3, 4, 5, 7 and/or 8 above, the husband shall be restrained from selling, disposing of, encumbering or otherwise dealing with his interest in the Suburb F property and Suburb K property without the express written consent of the wife.
19.Pending compliance with Orders 1 and 3, 4, 5, 7 and/or 8 above, the husband shall be restrained from disposing of or otherwise dealing with the following:
(a)Monies held in Westpac Account No. …06 to a sum of $3,700,000, with the husband to be at liberty to utilise any funds held in this account over and above $3,700,000 received in repayment of the loan to L Pty Ltd, by way of mortgage … secured against the title of the Suburb O property, in payment of necessary and reasonable living expenses;
(b)All other proceeds received by the husband from the sale of the Suburb O property.
20.Each party shall do all things necessary, including providing all consents, to give effect to these Orders in the time periods prescribed in these Orders.
21.In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these Orders, then the Registrar of the Court shall be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party, and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
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 O’Loughlin & Waverley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
INTRODUCTION
The applicant wife seeks orders for property settlement pursuant to s 79 of the Family Law Act 1975 (Cth) in respect to a relationship spanning from 1988 to 2017, where the parties married in 2001. The respondent husband opposes her application for property settlement orders, contending that the parties separated within months of their marriage in 2001. The case was pithily described by counsel for the respondent as “three months or thirty years?”
The parties had met as a result of the husband knowing the wife’s previous partner. The wife’s former partner died. The husband and wife commenced a relationship in 1985. The wife has two adult children from her previous relationship, whilst the husband has three adult children. There is some dispute about the nature of the relationship until the parties were married in 2001, and then a significant dispute as to whether they were subsequently together for only a few months or until 2017.
THE EVIDENCE OF THE PARTIES
The Wife
On the wife’s case, the parties commenced a relationship in 1985 and cohabited for a period in P Town until around 1988, when they took up a rental property in Q Town then subsequently moved to R Street, Suburb S (“the R Street property”).The husband had bought the R Street property in 1983. In 1990, the husband bought T Street, U Town (“the U Town property”) and, in the same year, the wife’s daughter made allegations against the husband causing a period of separation. By 1991, the parties were living between the U Town and R Street properties and reconciled in that year.
In 1992, there was another period of separation following further allegations by the wife’s daughter, but a reconciliation occurred soon thereafter. The wife says that the husband accused her of infidelity and assaulted her in 1992 or 1993, however they reconciled and lived together at the R Street property. In 1994 or 1995, the wife moved to a property at V Town with her children and the husband resided at the home he purchased in Suburb W (“the Suburb W property), but visited her at V Town. Between 1999 and 2001, the wife attests that the parties lived together ‘between’ the Suburb W property and another property at X Town, taking turns travelling between them. The parties then marry in 2001 and, later that year, the Suburb W property is sold for over $2.3 million and a property at Suburb O purchased (which contained two houses at the top and bottom of the property respectively), where the parties then resided until 2012, when the Y Town property was purchased. The parties lived at the Y Town property until the Suburb C property was purchased in late 2015 and the wife moved into that property. The wife contends that the husband lived there with her until 2017.
In 2016, the wife says she undertook a course in an attempt to improve their marriage, however they ultimately separated in 2017. In September 2017, the husband attended upon the Suburb C house, broke in and chased the wife with a hammer shouting “everything is mine! You don’t want to push me”. The police were subsequently called to the Suburb C house. The wife says separation was final by October 2017 and she commenced proceedings in early 2018. Thereafter has been a variety of incidents and Apprehended Violence Orders involving various parties.
The wife in this matter gave evidence over two days, cross-examined by counsel for the husband. The wife conceded in an affidavit filed at the commencement of the proceedings that she had engaged in significant fraud against the Department of Social Security over many years, claiming a pension when she was, on her case, in a married relationship with the respondent and, for a period of time, claiming rental allowance based upon false claims that she was paying rent to a fictitious person.
During the proceedings, it transpired that the wife has used four different names in her life since she left home. She says that she left home at 13 years old, and later reconciled with her parents in 1985. For much of her life she used a false date of birth, giving her the appearance of being four years older than she is. She said that she commenced doing this because she was only 13 when she left home and needed to present herself as being at an age that would make her 18.
In recent times, the wife also brought proceedings in the Supreme Court of New South Wales seeking an order for family provision from the estate of her mother. In those proceedings, the wife filed an affidavit dated July 2019 setting out the nature of the relationship between her and her mother, which included the following:
13.In 1985 I returned to the family home as a twenty seven (27) year old single mother of two children.
14.This was a difficult decision for me to make especially due to the reasons that I had left the family home in the first instance. I decided to return home as I needed the support of my parents in particular in provided [sic] care for my children.
15.Upon my return my mother and father both welcomed my children and I back into the family home. Particularly in those early times I was financially dependent on my parents to provide me with support since I had lost my partner the year before.
16. My mother and I worked hard to rebuild our relationship. She was remorseful of the fact that I felt that I had to run away from the family home as a child. She said that my coming home was:
“Like a new start.”
17.My children and I lived with my parents until I moved to [Z Town] area in late 2002.
Whilst this affidavit gives the clear impression that she returned to live with her parents in 1985 and remained there until 2002, the wife says that this was not, in fact, the case. She produced some handwritten notes which she said she had obtained from the solicitor who drew the affidavit (although no evidence was given from that solicitor as to the provenance of the notes) and these do not include a statement that she lived with her mother during that period. On the wife’s case, the solicitor made assumptions about her living arrangements for the purpose of preparing the affidavit. The wife attests that she never read the affidavit and signed it on the basis that she simply relied upon her solicitor having compiled it from what she had told him. The terms of the affidavit, however, are such as to greatly improve the wife’s prospects in her family provision proceedings in the Supreme Court. Those proceedings have since settled, with the wife receiving slightly less than $200,000 from her mother’s estate, despite her mother having made provision for her in the much lower sum of $5,000.
I find it difficult to accept that the wife would have signed an affidavit for Supreme Court proceedings without sighting it, and that the solicitor would have gained such a false impression of the arrangements if he had not done so from instructions given by the wife.
I am satisfied that the wife engaged in social security fraud for many years, not merely by failing to advise the Department of her relationship, but by actively misleading them into believing that she was paying rent when she was not, in fact, paying rent. I am also persuaded that the wife chose to file documents in the Supreme Court to mislead the Court and the parties in those proceedings so as to improve her prospects of obtaining a financial settlement.
During the course of her evidence, the wife spoke of being controlled by the husband and being subject to financial abuse in similar terms. However, there is little in her affidavit evidence setting out the details of conduct or details of events that she relies upon. It is only in her last affidavit, filed at the morning of trial, that she outlined her claim that the husband had instructed her to continue to claim social security even after they were married, the husband’s case being the opposite. In the course of giving evidence, she expanded upon her affidavits considerably, explaining that she and the husband had had conversations around the time that they married to the effect that he would support her financially, and that he had requested her to continue claiming social security. The wife also said that the husband spoke about him having to support her if they got married, as up until that point she was his “cost nothing girlfriend”. She said that when they got married they decided to do things right, as they had commenced becoming Christians. It seems that, on her case, this was what promoted the marriage, although it is entirely inconsistent with the ongoing fraud of the Department of Social Security.
The wife did not work through the relationship except, on her case, for occasional cleaning work, and said that she relied upon money from social security. If the parties were not, in fact, together, as the husband contends, then the wife’s claims on the Department of Social Security would not have constituted fraud. Given the wife’s life history as brutally outlined, including leaving home at 13, and using false names and birth dates over the years, I have difficulty accepting that she was under such control from the husband as she would make out in her evidence.
As the wife’s evidence went on, other embellishments appeared, such as the claim that the husband had told her that the Suburb O property was to be her property, so she had somewhere to live until she died. However, the property was never placed in her name and this allegation does not appear in her affidavit filed 23 September 2021.
A similar style of embellishment occurred when discussing the purchase of the R Street property, which the wife said was meant to be placed in her name as she located the property for purchase, and that the husband had told her he would lend her $25,000 for the purpose of purchasing it. It seems somewhat inconsistent for a property within a marriage that was, on her case, all jointly owned (even though it was in the husband’s name) to be discussed in terms of him lending her $25,000 to purchase the R Street property. In any event, that is not what transpired, as the R Street property was purchased in the husband’s name.
Curiously, the false landlord identity that she created not only used two names that were known to her (a previous name that she had used and the husband’s surname, despite him attesting that he had told her never to use his name), but she had also given an address which, effectively, was that of the top house at Suburb O at a time when she was living in the bottom house. Had there ever been any inquiries by the Department of Social Security, they would have come to the attention of the husband.
At one point in her affidavit, she says:
75.In or around early 2016, I completed a course […] in a bid to improve my marriage with [Mr Waverley]. I noticed that [Mr Waverley] and I were having difficulty communicating and relating to each other (after he had been taking medication for [a medical condition] which, I observed, caused changes with [Mr Waverley’s] mood – deposed to at paragraph 145 below), and I wanted to do everything I could to work on the relationship. The course was a series of webinars on a range of topics with a religious focus. I propose to tender various emails I received from [the course provider] at the time that I was completing the course in early 2016.
(Emphasis in original)
This paragraph indicates that the relationship between the parties was on reasonable terms until a time when he contracted a medical condition and experienced some behavioural changes as a result of the side effects of medication. This appears inconsistent with the wife’s evidence as to the nature of the relationship throughout, but similarly is also inconsistent with the parties having a close relationship, as she said that the husband had told the hospital that he lived on his own, clearly not identifying her to the hospital staff as his spouse.
A third embellishment around the parties’ property dealings is the wife’s claim that she had played a significant role in the sale of the Suburb O property by entertaining investors when the investors had attended to view the property. The wife attests to playing a role in preventing the husband from selling the property at a much lower price, and that the husband had relied upon her opposition to tell the banker that he would not sell the property unless he received $500,000 more, because the wife would not agree to its sale.
On her evidence, her skill in understanding land and land values in that area of the country, particularly with respect to the quality of the land, the dams and the terrain, was said to have been gained from the husband who taught her what she knows. At one point, she described her knowledge as being at a level now where she could be a real estate agent.
Overall, I found the wife to be an unimpressive witness. There are many difficulties with the wife’s evidence, however, much of what she said about her relationship with the husband appeared credible.
The husband’s evidence
The husband gave evidence that he commenced a relationship with the wife in 1985 when they cohabited for around a year at P Town. However, on his evidence, they then lived separately for some time, with the wife moving into a property owned by the husband in U Town in 1990 (although the husband said he didn’t live there with her). In 1994, the husband deposes to the wife living in a home in V Town until 1999, when she moved into the husband’s property at X Town (although the husband says he lived separately at Suburb W at this time and that the parties were only dating). In 2001, the parties were married and by late 2001 or early 2002 they moved into the Suburb O property and then separated soon after. However, the husband contends, the wife has since resided in properties owned by the husband.
The husband confirmed the evidence in his affidavit that he located the Suburb O property and purchased it without any input or assistance from the wife. He said that he moved into Suburb O after the transfer, which took place in 2001 (a copy of the transfer having been shown to him in the witness box).
The husband confirmed that he married the wife in 2001, but said that they separated after six or seven weeks. The husband set out in his affidavit that he and the wife did not live together until they were married, at which time the wife moved into the Suburb O property with him (paragraph 24 of the husband’s affidavit). He also said that at the time they married, he was living on his property at Suburb W and had his mother’s residence in Suburb BB as his postal address, while the wife was living in the CC Town property. Following marriage, the husband attests to telling the wife that she would have to cease receiving Centrelink benefits and that she had agreed. At paragraph 27 of his affidavit, the husband said that after they married they lived at the top house at Suburb O, with the husband paying for all their living expenses and giving the wife money each week. However, the husband’s timelines are not consistent with the date of the marriage and the date of the transfer of the Suburb O property. If they separated six or seven weeks after marriage, they would have separated by mid-2001, yet the Suburb O property was not transferred to the husband until late 2001. It seems that the husband agreed that the parties didn’t move in together for a couple of months after the marriage, however, even the addition of a couple of months does not resolve the difficulty with the timelines. The wife’s timeline, given at paragraph 53 of her affidavit, is more likely to be correct. The husband appeared somewhat confused about this issue and his evidence was somewhat vague. I had the impression that this caused him some genuine confusion, as it did not accord with his memory.
The husband had known the wife some years before when she was still with her previous partner, Mr DD, who died. The husband agreed that he had been charged with some offences in the late 1960s, however maintains that he has not had any involvement with the police in the last 50 years. In more recent years, the husband said that he had found God in the scriptures and that this was one of the reasons that he married. He also deposes to being told by the wife that she had a serious illness and was near to death. His version of the relationship was that he felt the need to watch over the wife (as her former partner’s family had been very good to him years ago) and that he should provide a house for her as she had nowhere to live. He agreed that, in 1985 or 1986, he had been baptised at the same time as the wife and her daughter. He said that at that time the wife was living in V Town. It was then that he offered her the CC Town house so that she could move. The husband also paid for eye surgery and dental work for children of the wife and deposes to making provision for the wife’s granddaughter in his will.
The husband said that the parties had separated as he couldn’t “get past” the wife claiming Centrelink benefits whilst they were together. He said that he moved out of the ‘top house’ down to the ‘bottom house’ of the Suburb O property at that time, but never sought to have the wife leave the property. When the property was sold, the wife moved with him, which he explains by saying that she had nowhere else to go. He said that the lack of rent did not bother him; he never rented out his properties because he said he doesn’t like a sense of greed. Remarkably, the wife occupied two further properties of the husband following separation.
The husband agreed that the parties went to a club together (some 78 times between 2011 and 2016). Whilst, in an earlier affidavit the husband said that he did not attend church, he now agreed that the parties attended the same church functions. However, the husband says that they drove to such events in their own cars and he didn’t make a point of meeting the wife at the church functions. He also said that he would have taken the wife to see properties that he was purchasing.
Even after separation, the husband had the wife send emails for him and received bank emails as late as 2017 to 2019. According to the husband, the parties met distant relatives of his on one occasion, whom they had found through ancestry.com. However, the husband denied saying that the parties were married on that occasion, despite a wedding photo of the couple being uploaded to that website in 2014.
The husband denied that greeting cards produced by the wife, which appeared to show a marital relationship, were in his handwriting. He denied that the wife had cut his hair or cared for him when he sustained an injury in 2017.
Although the husband describes himself as being non-confrontational and one who would choose to “walk away” rather than argue, this is in stark contrast to the evidence of Mr EE, the pastor of the parties’ church in Z Town, as to the husband’s confrontations before the congregation. Whilst the husband may have a self-perception of being non-confrontational, it is also in stark contrast to the violence and abuse that he inflicted on Mr FF, the wife’s adult son from her previous relationship. It is also inconsistent with the observation of his step-granddaughter’s friend whom, as a teenage girl staying as a guest in the home, noted the husband’s demeanour. I am not persuaded that the husband is non-confrontational, rather, he has been violent and controlling towards those around him. I am also persuaded that the wife was fearful of the husband.
Throughout the long period that the husband says the parties were separated, the wife continued to live in properties owned by the husband.
The husband denied harming the wife’s children, and denied that there were times when their respective children were together. The impression he gave was that the wife was little more than a passing acquaintance for his children yet, at one point, the children had the same address provided to the school at which they were enrolled.
Whilst the husband says that the parties have been separated for over 20 years, there is no evidence of him partnering with anyone else. Even his own daughter was unable to say that she knew of any other partners, describing the husband as a man that was very private.
The husband’s demeanour in the witness box was impressive. He appeared relaxed and confident when giving evidence. However, he was clearly confused with respect to the timeline concerning when he said that the parties separated. On other occasions, he prevaricated somewhat in the witness box.
I accept that he is a private man who keeps to himself. He has some friends (who were called to give evidence) although, on his evidence has little social life. Indeed, it appears that his social life (beyond solo lunches at a café) was that of the church and the club, all of which were with the wife.
THE OTHER WITNESSES
The wife’s granddaughter
The wife’s granddaughter, Ms GG, was called in the wife’s case. Ms GG was a particularly impressive witness. Unlike many of the witnesses in the proceedings, she was not only able to readily provide fine details of her recollections, but eager to provide those details, if asked. For example, she remembers times as a child having breakfast on the end of the bed with the husband and wife lying in bed (after making breakfast with the wife and taking it into the room for the husband), and that the husband kept a firearm by the bed. She knew the parties as a couple from her interactions with them as a child, which included staying with them for lengths of time up until completing her Higher School Certificate (“HSC”). Her impression of the parties was that the husband handled the finances. She recalled the husband giving money to the wife and her returning the change to him. She also observed affectionate words and gestures between the parties such as ‘bub’, a kiss and goodbyes that indicated they were a couple. She was also clear that the husband had been kind to her and showed her a different life. She was also aware that she had been included as a beneficiary in the husband’s will. She thought that she was the only person that the husband and wife trusted. She was also aware of her mother’s difficulties with drugs and alcohol. I accept her evidence.
The granddaughter’s school friend
Ms GG’s school friend, Ms HH gave evidence by video link. She did her HSC with Ms GG and spent considerable time at the Suburb O and Y Town properties during those years with Ms GG. Her recollection was that the husband was always there. She also recalled the wife working with the livestock (tending to them, giving medications, and helping feed livestock with the wife). She also saw the wife cleaning and cooking dinner for the husband, herself and Ms GG. She saw frozen cooked meals in the freezer that the wife said were cooked for the husband in case she wasn’t there to make a meal. She also recalled a time when the wife stayed overnight in Sydney and herself and Ms GG were left with the husband, who became less pleasant and jovial upon finding out that the wife would not return that night – she recalled that the husband got quite cranky and that she was scared of him in that state. Like Ms GG, she was readily able to offer details of her recollections. I also found her to be a credible and reliable witness.
Various church members
Mr JJ was a director of a ministry and met the parties through that ministry in or around 1995. He gave evidence by video link. Mr JJ recalls the parties attending church together regularly and attending bible studies. He baptised the husband in 2001 and recalls that the parties were married by a pastor a few days later. In that respect, he outlined in his affidavit filed 25 August 2021:
7.Sometime in the same year, [Ms O'Loughlin] and [Mr Waverley] moved interstate to a property near [Z Town], “[Suburb O property].” I know this because [Mr Waverley] and [Ms O'Loughlin] discussed it with myself and other Church members at the time before departing and no longer attending the Church. Between 2001 and 2003, I visited [Ms O'Loughlin] and [Mr Waverley] approximately four (4) times at [Suburb O], staying overnight on those occasions. I conducted a baptism […] at [the Suburb O property] for another Church member, [Ms KK] and I also ran a Church youth camp on the property which I organised by speaking with [Mr Waverley], which I recall was over the telephone. When I would stay at that property I either camped or stayed in one of the [buildings] on the property […]. Although I did not stay in the main [house], I went in there many times with [Ms O'Loughlin] and [Mr Waverley], and it appeared to be a well-kept house filled with many household and personal items. During times when I visited, [Ms O'Loughlin] and [Mr Waverley] seemed to me to be a happy married couple sharing their life together on their [property] and I had no reason to think otherwise. That was the impression that I had based upon the interactions between them that I saw at the time. I was very grateful to [Ms O'Loughlin] and [Mr Waverley] for letting me use [the Suburb O property].
Mr JJ knew the parties as a couple, although he lost contact with the parties from around 2004 and only heard from them again in 2018, when the wife rang to tell him they had separated. I accept Mr JJ’s evidence.
Mr LL (who gave video link evidence) has known the parties since 2003, having met them at a ministry through volunteer work. He deposes to the following in his affidavit filed 26 August 2021:
5.In 2003, it was common knowledge in the Christian ministry that [Mr Waverley] and [Ms O'Loughlin] were a married couple in an intact relationship. I say this because:
(a)[Mr Waverley] and [Ms O'Loughlin] presented as a married couple in the sense that they behaved and looked like a married couple as I perceived them.
(b)I observed [Ms O'Loughlin] be affectionate towards [Mr Waverley], physically and emotionally, although I cannot recall any particular examples;
(c)[Mr Waverley] and [Ms O'Loughlin] mostly travelled together by car between [Suburb O] and [Suburb MM] to the ministry between 2003 and 2007 which I observed from conversations with them during that period at [Suburb MM], [Suburb NN] and [Suburb OO] and from observing them arriving in the same car and leaving in the same car (I do, however, recall instances that they attended separately too).
(d)[Mr Waverley] and [Ms O'Loughlin] were referred to amongst those who attended or worked at the church as “the [Waverley’s]” and as Husband and Wife. I do not recall any specific occasion where they were referred to as such, but it was common and usual. Whenever I perceived or saw [Mr Waverley] and [Ms O'Loughlin] referred to in that way, I do not recall seeing [Mr Waverley] nor [Ms O'Loughlin] correct the description or indicate it was inaccurate to whoever was present.
Mr LL also recalled the ministry conducting camps and weekend meetings at the Suburb O property, with the parties being hosts from 2003 to 2006. In 2013, he met the parties at the Suburb O property with other church members (who travelled there in a hired bus) to discuss the possibility of the church having use of the land. Mr LL also produced newsletters that included mention of the wife, although there was no mention of the husband. In one such newsletter, the wife was described as Mrs Waverley. Mr LL recalls staying with his wife in the main home of the Suburb O property with the parties and understood that the parties slept in the same bedroom together. At one point he was told that the top house was not being used.
He also gave evidence of an unknown person telephoning him after he prepared an affidavit in these proceedings to remind him of particular Bible verses, being Exodus 20:16 and 1 Peter 4:15, which warn against bearing “false witness” against another and interfering in others’ lives. However, there is no evidence to link this to one of the parties. As a result, I draw no inference from this message, nor a request that the witness had received from an unknown woman seeking an urgent and clandestine bible study meeting. I accept Mr LL’s evidence.
Mr PP was a pastor at Z Town between 2001 and 2004, prior to Mr EE. The parties were known to him as a couple that used the name Waverley. He gave evidence in his affidavit filed 25 August 2021 that:
5.[Mr Waverley] and [Ms O'Loughlin] did not attend Church every week, however, they were regular and active attendees. When [Mr Waverley] and [Ms O'Loughlin] attended the Church, they arrived together and sat together during services, and I understood them to be Husband and Wife based on the interactions between themselves and other people that I observed. I had no reason to believe that they were not a couple. [Mr Waverley] and [Ms O'Loughlin] also occasionally attended with some young people, who I assumed may have been some of their children or Grandchildren although I do not know this to be the case.
Mr PP also saw the parties around the town and had visited them at the Suburb O property, and they always appeared to interact as a normal couple, including touching each other in ways normal for couples.
Mr PP also found that the husband often caused disruptions in the congregation, as he had a strong view that women should not be permitted to preach in the church, a view the husband shared in church one day. Whilst this appears to have led to the husband moving to the City QQ church, and some degree of rejection by the husband of his relationship with the witness, it does not appear to me to have been such that I am led to doubt the witness’s evidence or integrity. I found Mr PP an impressive witness.
Mr EE gave evidence by video. He was a pastor at Z Town between 2005 and 2015, having taken over the role from Mr PP. He noted that on a church congregation list the parties were listed as Mr and Mrs Waverley, and he understood them to be a couple (although it is not clear who compiled the congregation list). He too experienced difficulties with the husband in respect to women preaching in the church. In 2005, the husband objected to the pastor’s wife delivering a sermon, following which he visited the husband at the top house of the Suburb O property, although the wife was not present for that visit. Difficulties came to a head in late 2012, as he set out in his affidavit filed 26 August 2021:
11.[In late] 2012, [Mr Waverley] and [Ms O'Loughlin], accompanied by [Mr RR] who I believe was a friend of [Mr Waverley’s], and a younger female entered the Church and sat in the rows nearby to the front of the Church. Suddenly, [Mr Waverley] stood up and went to the front of the Church and began to address the congregation about a business dispute he was having with an elder of the [Z Town] congregation [Mr SS]. I do not recall the exact words that [Mr Waverley] said however I recall that it was about this apparent business dispute. [Mr Waverley] was shouting and as it was to be a communion service, [Mr SS] was absent and there were children present, both myself and [Mr TT] walked towards [Mr Waverley] and said repeatedly words to the effect of, “You need to sit back down” and “[Mr Waverley] that’s enough. This is not the time and the place.” [Mr Waverley] ignored those requests and said words to the effect of, “No, what I have to say needs to be heard.” [Mr Waverley] continued and I said, “[Mr Waverley], you need to leave.” [Mr Waverley] refused. [Mr Waverley’s] behaviour and demeanour was intimidating and by this stage, many church members were exiting the Church, some in tears (including children). At this point, I took a photograph of [Mr Waverley] as he continued to disrupt the service. That photograph is exhibited hereto and marked “B”.
12.After I had taken the photo, [Ms O'Loughlin] approached me and said words to the effect of, “you don’t have permission to do that. Delete it.” I said words to the effect of, “No. He has disrupted our service.” [Ms O'Loughlin] continued to pressure me for the photo to be deleted.
13.Eventually, [Mr Waverley] removed himself from the front of the Church and both he and [Ms O'Loughlin] had a conversation with [Mr TT] and I outside. During this conversation, both [Mr Waverley] and [Ms O'Loughlin] (mostly [Mr Waverley]), attempted to persuade [Mr TT] and I of the legitimacy of the alleged business dispute with [Mr SS]. I recall [Mr Waverley] said words to the effect of, “You will be cursed for protecting [Mr SS].” I was very annoyed at the time and wanted to ensure peace for the Church members, who come to church to practice their faith.
14.[Ms O'Loughlin] stood by [Mr Waverley’s] side and, although I cannot recall exactly what she said, it appeared to me as though [Ms O'Loughlin] supported [Mr Waverley’s] comments to [Mr TT] and I. Although I thought [Ms O'Loughlin] was unwarranted in supporting [Mr Waverley’s] inappropriate behaviour, her actions in defending him suggested that she was a loyal Wife. It seemed to me that [Ms O'Loughlin] was ‘backing up her man.’ This is the impression that I had based upon what I saw on that occasion.
Mr EE did not see the husband or wife after this incident, first hearing from them again when the wife telephoned him in 2018 to say she had separated from the husband and, after that, he helped her install security cameras in her home.
I found Mr EE an impressive witness and accept his evidence.
Mr UU was also called. He was a pastor of the church which the parties attended and had met the husband in or around 2000. At one point, the husband had complained about Mr UU to church superiors with respect to his preparedness to make visits. It doesn’t seem that this was a significant issue at the time, nor significant to the witness now. I accept his evidence that the parties always appeared as a couple. Mr UU was unaware that the wife was not using the Waverley name when he knew them.
Ms VV gave evidence (at times with some assistance from an interpreter) that she met the husband when introduced by the wife to him as her ‘husband’ at a ministry meeting in 2002. She denied meeting the husband earlier as he alleged. She met the wife who was working with the ministry at that time. Over the years, Ms VV has had a number of interactions with the parties as a couple and considered them her friends (pointing out that she doesn’t make friends easily, but likes good Christian people).
She visited the parties at the top house at the Suburb O property with two other friends in 2005. Herself and her friends stayed at the top house for a couple of nights while the husband and wife stayed in the bottom house.
The husband and wife even offered to allow Ms VV to live on the property and made some enquiries about portable homes. She denied suggestions that any such invitation was from the wife only.
Some time after the 2005 visit, Ms VV visited again on the invitation of the wife, which she was assumed was on behalf of both the husband and the wife. She stayed about a week with a friend nearby and the husband and wife visited her each day for that week.
In 2018, Ms VV discovered that they had separated when her calls on a landline number were unanswered by the wife and she rang the husband, who gave her another number to ring. She spoke to the wife on that number and was told of the separation by the wife.
The witness was an older woman who was very definite in her recollections, after starting her evidence insistent that she was telling the truth and had her bible with her. At times, she wasn’t particularly responsive to questions of detail. Despite some difficulties of age, language and the frustrations of a video link and some loss of hearing, I found her to be a definite and credible witness.
The wife’s son
Mr FF, the wife’s son who is now 44 years old, gave evidence of his experiences in the household as a child. He recounted not only being denied a room in the house for sleeping (sleeping instead in the shed or a mobile home) but also terrible incidents of violence at the hands of the husband (including being beaten with a vehicle bumper bar rubber (around 18 inches long and 1 inch thick)).
He clearly recalled one incident when he took one of the husband’s motor vehicles for a ride (without permission when the husband was away) when he was around 10 years of age. In his affidavit filed 3 March 2021, he said that:
36.When [Mr Waverley] returned from Sydney, he said to Mum "Take [Ms WW] down the back for a walk". When they had left, [Mr Waverley] called me to the big shed and whilst he was bent over tying his shoelace he said to me "Can you give me a hand with this?" As I lent down [Mr Waverley] rose up, punched me twice in the face and broke my nose. I remember being covered in blood. I remember not being able to see because the tears in my eyes and the blood all over my face. [Mr Waverley] then punched me multiple times in the stomach and ribs and I felt like I could not breathe. As I fell to the ground [Mr Waverley] started choking me and screaming at me "Don't you ever [take my vehicle] again". I remember lying on the floor for hours not knowing if I was able to or allowed to get up.
When cross-examined about this incident, he recounted it with detail and had to hold back his emotions. Later in cross-examination, he said that the wife knew of his treatment and he was even prepared to extend some degree of empathy for the husband, saying that perhaps it was how the husband was brought up. Mr FF’s preparedness to show some empathy for the husband, despite what the husband had done, was evidence that was touching.
Mr FF gave details of the tasks he did around the different properties in his affidavit, saying:
22.As children, [Ms WW] and I worked at the properties every day, often alongside Mum if she had not been given other jobs to do by [Mr Waverley].
23.Whilst living at the [P Town] and [R Street] properties, I frequently missed school to undertake work, or as a result of needing to recover from the injuries caused by [Mr Waverley’s] beatings before returning to school (outlined in more detail below). By the time we moved [U Town] I was kept home from school every day to work. I never finished Grade 5. [Mr Waverley] said to me words to the effect of “You don’t need school. God will come for you before you grow up”. [Ms WW] was allowed to go school for a little while longer than me.
24. At the [P Town] property:
(a)I fed and watered all the animals […], which was a one-kilometre round trip or more;
(b) I helped Mum cut wood;
(c) I helped Mum, [Mr Waverley] and [Ms WW] build a yard for the [livestock].
25. At the [R Street] property:
(a) I fed and watered all the animals […];
(b) I helped Mum and [Mr Waverley] dig fence holes by hand;
(c) I helped Mum, [Mr Waverley] and [Ms WW] pull off the roof and install a new roof;
(d) I helped [Mr Waverley] and [Ms WW] fill and cement the veranda
(e) I helped Mum, [Mr Waverley] and [Ms WW] build and repair sheds and dwellings.
26. At the [U Town] property:
(a) I helped Mum, [Mr Waverley] and [Ms WW] clear the property for pasture;
(b) I helped Mum, [Mr Waverley] and [Ms WW] build and repair sheds and dwellings;
(c) I helped Mum, [Mr Waverley] and [Ms WW] build, maintain and repair fencing.
27. Whilst Mum and [Mr Waverley] lived at the [Suburb W] property, I visited regularly to help Mum and [Mr Waverley] with the work they undertook there:
(a) I helped Mum and [Mr Waverley] pull down and dismantle dwellings;
(b) I helped Mum and [Mr Waverley] collect wood and tin to build new dwellings;
28. Whilst living with Mum and [Mr Waverley] at the [X Town] property, I continued to help Mum and [Mr Waverley] with the work they both did there:
(a) I helped Mum to cut firewood;
(b) I helped Mum and [Mr Waverley] construct, maintain and repair fencing;
(c) I helped Mum and [Mr Waverley] build and repair the structures on the property.
(d) When Mum and [Mr Waverley] bought the [Suburb O] property, I assisted in packing up the [X Town] property and moving them into the [Suburb O] property.
29.For the twelve months that I lived with Mum and [Mr Waverley] at the [Suburb O] property I continued to help Mum and [Mr Waverley] with the work that they undertook on the property:
(a) I helped Mum and [Mr Waverley] build and repair sheds;
(b) I helped Mum and [Mr Waverley] construct, maintain and repair fencing;
(c) I helped to maintain the […] vehicles;
(d) I helped Mum and [Mr Waverley] cut firewood;
(e) I helped Mum and [Mr Waverley] clear debris […];
Mr FF also gave details of where he stayed in the various houses and the events leading him to leave the Suburb O property. He outlined that the husband’s children from his former marriage lived with them from time to time, and that he has a friendship with Ms XX, one of the husband’s daughters.
Mr FF was an impressive witness in the witness box. I have reflected upon his evidence for some time, particularly given the seriousness of the matters he recounted and the difficulties of assessing the credibility of witness’s oral evidence. I remain persuaded by his evidence and accept his version of events.
The husband’s first wife
Ms YY, the husband’s first wife, gave evidence that the children had only ever spent short times with the husband. This was not easily reconciled with orders of the Family Court of Australia (as it then was) made in June 1989 placing two of the children in the care of the husband, following a letter from this witness to the Department of Social Security in late 1988 notifying that the two children were living with the husband at that time. Ms YY knew little of the husband’s household, making the point that she didn’t interrogate the children about their time with the husband. She did concede that, occasionally, the children would mention the wife. She was quite clear that she didn’t pry into the husband’s business. Whilst she said the children never lived with the husband for more than three months, it is difficult to place much weight on this evidence.
The husband’s daughter
Ms ZZ, the husband’s daughter from his first marriage, said in her affidavit filed 22 August 2018 that:
4.[Ms O'Loughlin] lived at the top house on the property. On each occasion I have stayed with Dad he was living as a single person. His house was just as Dad liked it. There was no one else’s clothes there or anything there that would have made me think someone lived with Dad.
5.[Ms O'Loughlin] was not in attendance at his house whilst I was there. She did not look after Dad whilst I was there. She was not present in his house and as such did not cook, clean or do anything. My dad has always looked after himself and done all of his own cooking and cleaning.
In her affidavit, she spoke of ‘staying’ with her father at the Suburb O property. During cross-examination, it became clear that she had only been at the Suburb O property with the husband during the day (not overnight) and had seen him at the bottom house at the Suburb O property. The tenor of her evidence was that there was no real interaction with the wife over the years (at least that she was aware of) yet, during cross-examination, she was taxed with emails she had sent to the wife enclosing historical family photos (in 2013) and about gifting a vehicle. Like her mother, she often mentioned that she didn’t ask about her father’s business. The email exchange of 22 July 2012, that she said that she did not recall, was as follows:
DITO…my computers going crazy keeps sending privet messages….ignore then it mite b a computer glinch… ather praying for help,,, my preys were answerd,,,, some how centerlink owed me 1200 doller and went in to my account….so i can get my car repaired,,,,,and have enought to pay for blue slip for the car,,,and rego,,,cars got […] number plates…..i went into child support and put […] in 4000 credit,,,,for the car,,,,,[…] thanks for letting me have a wing to u,,,,he has no idea how the real world works as a single mum,,,,fix your car,,,y did u leave it there? iam not just ganna go get a boyfriend to help me,,,like most single girls do…you r so sweet […],,,and patiant cause he doed my head in sometimes,,,,,i didnt want to tell him to fix a car it cost money,,hed probley think iam hitting him up,,,,any way i will be transfering the car in my name…..now i have the money to….so anth caint take it back of me,,,iam not stupid,,,if i had the money last week,,it would have been done,,but u caint tell dad that….he thinks as girls have the abbility to get things done with monopley money,,,,,u no wot […]….i wish he was poor on the outside and rich on the inside,,,,instead of rich on the out side….and his hearts poor inside,,,,,he acts like […],,,,,sometimes,,,,i grow up with nothing,,,,i had no food,,,i had to live in […],,,,bla bla bla…well we have all been there and done that…except we dont go on about it,,,,ive had to steal food as a kid,,,,dont here me feeling sorry for myself,,,and i assume u […] of had a hard child hood to,,,and u nom wot […]…ive never heard u wing either,,,MY MOTTO IN LIFE,,,WOT DOESNT KILL U MAKES U STRONGER,,,,xxxxx love u […],,,,and thanks again…..i prey that that car goes to some11 that needs it….xxxxxxxxxlike a singe mother doing it hard,,,,,,,,love u always..[…]
There was dispute as to whether the emails were genuine. The witness’ email account had since been closed, so she was not able to check the account. The wife’s account had only records of emails sent, not copies of the emails received. Section 161(1) of the Evidence Act 1995 (Cth) provides for a presumption as follows:
Electronic communications
(1)If a document purports to contain a record of an electronic communication other than one referred to in section 162, it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that the communication:Was sent or made in the form of electronic communication that appears from the document to have been the form by which it was sent or made; and
(a) Was sent or made by or on behalf of the person by or on whose behalf it appears from the document to have been sent or made; and
(b) Was sent or made on the day on which, at the time at which and from the place from which it appears from the document to have been sent or made; and
(c) Was received at the destination to which it appears from the document to have been sent; and
(d) If it appears from the document that the sending of the communication concluded at a particular time – was received at that destination at that time.
Neither the witness nor the wife could provide anything but their recollections, which were necessarily imperfect after so many years. For the emails to be manufactured would have taken some degree of technical proficiency and there is nothing to indicate that the wife has those skills. Indeed, if such was done, one would have expected far more helpful and far greater numbers of emails to have been manufactured. I am not persuaded that there is sufficient evidence to raise a doubt against the presumption, as the section provides, and therefore I accept the emails as genuine.
The tenor of these emails demonstrates a level of closeness between the witness and the wife well beyond what she portrayed in her evidence generally. For example, discussion of child support problems with her former partner, an issue that the wife would be unlikely to have known if not on good terms with the witness. Ms ZZ was also unclear as to whether a car (of which a photo was produced) had been her car or given to Ms GG (the wife’s granddaughter).
She agreed that when she was very ill at 18 to 19 years of age, the wife visited her regularly and they got to know each other well. She was a little emotional recalling these events, but avoided directly answering whether she became fond of the wife. She said she went night clubbing a lot with the wife’s son, Mr FF, after her period of illness. Remarkably, Ms ZZ said she was unaware that the wife’s children also went to the same school as her siblings. More remarkably, she was unaware that the husband and wife married in 2001, soon after her birthday. Her evidence was punctuated by regular statements that her father was a very private person.
It seems that she had a much closer relationship with the wife than she was prepared to admit. I am not persuaded that I can place any real weight upon her evidence. Rather, the emails (and concession as to the time they spent together when Ms ZZ was very ill) is indicative of a level of a closeness to the wife that is more consistent with the wife’s version of the relationships.
I am not persuaded that Ms ZZ was a frank witness upon whose testimony I could rely.
The husband’s accountant
Mr AB, the husband’s tax accountant gave evidence that he had done the husband’s tax returns since the husband had bought the Suburb O property. He had never understood that he was married and prepared the returns on the basis of the husband being a single man. The first time he visited the Suburb O property, he saw the wife in the top house. Thereafter, he had attended at the bottom house on six occasions to do the tax returns and go out with the husband. They stayed at the bottom house. When asked about the lack of hot water in the bottom house, he explained that they went out and he would stay overnight then leave, as such, he didn’t use the shower there.
He gave evidence that in the 2018 return, the husband gave his address as the Suburb O property, and thereafter as H Street, J Town (“the Suburb K property”).
The real estate agent
A real estate agent, Mr AD, was called to give evidence that he had assisted with property purchases and sales for the parties. He set out in his affidavit filed 13 August 2018 that:
7.[Ms O'Loughlin] and [Mr Waverley] contacted me in or about 2002 to place the [CC Town] property on the market for sale. While the [CC Town] property was on the market, I recall that [Ms O'Loughlin] was heavily involved in the selling process. [Ms O'Loughlin] staged the home and always ensured it was in a presentable state for potential buyers, and also greeted and met with a number of potential purchasers when I brought them to the [CC Town] property for inspections, explaining to them the intricacies and unique features of the property.
8.After the [CC Town] property was sold (the exact date of which I cannot recall), I understand that [Ms O'Loughlin] and [Mr Waverley] purchased the property at [Z Town] known as "[the Suburb O property]". Even though I was not involved in the purchase of [the Suburb O property], I visited them at that property on one occasion (the exact date I cannot recall).
9.In or about 2004, I arranged a […] lease for [the Suburb O property] between [Mr Waverley] and [Ms O'Loughlin] and the [AE Partnership]. I was also in regular contact with [Ms O'Loughlin] about the lease. I kept in contact with [Ms O'Loughlin] during this period by telephone on the landline at [the Suburb O property].
10.I did communicate with [Mr Waverley] occasionally, though not as frequently as I did with [Ms O'Loughlin].
During cross-examination, Mr AD said that he could not recall in whose name the property he sold to the parties was purchased, but recalled dealing with both of the parties. I accept Mr AD’s evidence.
The conveyancer
Ms AF, the conveyancer who acted on the sale of the Suburb O property, was called by the husband. She did a conveyance for the husband, but had no other dealings with him. She only dealt with him and had no knowledge of the wife. I accept her evidence as to the limited dealings she had with the husband.
Friends and acquaintances of the husband
Mr AG
Mr AG is another land owner in the district who also runs other businesses. He is a friend of the husband and holds him in high regard. He was a clear and forthright witness. He didn’t see the wife when he attended at the property, despite usually going into the bottom house to have a cup of tea with the husband, nor did he see any items in the home to indicate that the wife was living there. For example, the only photo he recalled seeing in the home was of the husband bare chested riding a horse, describing the husband as “pretty tidy” when he was younger.
He recalled a time when he and the husband were in a bar having a drink when Ms WW, one of the wife’s daughters, came by and he waved to say hello. Later, he saw her and she was surprised that he knew the husband, saying either that the husband was or had been her ‘step-father’. He couldn’t remember clearly if she described the husband as her current stepfather or her former step-father.
I generally accept Mr AG’s evidence of his observations.
Ms AH
Ms AH, a close friend of the husband, also gave evidence. Ms AH was somewhat coy as to the nature of her relationship with the husband, indicating that they were not yet romantic, but it seemed she was very hopeful of a closer relationship once the proceedings are over.
She said that she went to the Suburb O property every day for over three months to help the husband, due to him being incapacitated as a result of an injury. It transpired that this occurred despite the distance from her home to the husband’s home at the Suburb O property being around 20–30 minutes of driving (including a small stretch of dirt road), and despite the witness not holding a driver’s licence. She explained that the husband would drive out in the mornings and collect her and drop her back in the afternoons (as she never stayed overnight). This amounts to up to two hours driving each day for the husband when he was said to be incapacitated by an injury. The witness then sought to explain that a third person, Mr AJ, went each day as well, and that Mr AJ lived near her home. She did not recall if there was a routine as to who was collected first or where they sat in the car, but later said that sometimes Mr AJ would drive. Toward the end of these questions, Ms AH asked “did I get it right?”
Ms AH had a pleasant demeanour in the witness box, however, reflecting upon the terms of her evidence, I am not persuaded that I can place weight on her testimony.
Ms AK
A business owner from Z Town, Ms AK, gave evidence that she operated a business from 2009 until recently and that the husband came in regularly for ten or twenty minutes, around five to six times per week. She said that the husband came most days since the COVID-19 lockdowns and attested that the wife would also come very occasionally (although not arriving with the husband, but would then sit with him). Ms AK did not take a lot of notice of them, so could not comment on whether they interacted like a couple.
Mr AL
A local resident of Z Town, Mr AL, was called to give evidence. He had an elderly appearance and presented as rather frail. He said that he knew the husband but had not known that he was married and had not seen the wife with the husband in town, nor had he ever seen the wife’s car at the property on the occasions that the visited the husband. Mr AL believed that the husband was a single man until he was recently told of the marriage. He didn’t know of the personal life of the husband and had only seen the wife’s car in the street in town when driving. However, he could not recall if there were one or two houses at the Suburb O property.
Mr AL said that he saw the husband and wife ‘once in a while’ and from a distance, unable to say if they were “holding hands or anything”. Mr AL and the husband help each other out with work, such as the husband mowing Mr AL’s lawn. He did know which car the wife drives, despite saying he only saw her occasionally in the street. He was unclear with respect to how he knew who the wife was, other than saying that the husband told him that they were going to Court. When pressed, Mr AL told of a time he saw the husband and wife outside the Church having a snack together, although still was not able to say how he came to know who the wife was when he saw her around town. After some time, he recalled seeing the husband and wife together in AM Town at a café, but again said nothing to indicate how he had come to know the wife’s appearance. He had been inside other properties of the husband but not seen the wife there, although did recall that there was a teddy bear on the bed.
I did not find Mr AL’s evidence to be evidence upon which I could place weight.
The wife’s treating psychologist
Ms AN, a clinical psychologist who had treated the wife following a referral from Victim Services New South Wales, also gave brief evidence. Ms AN did not undertake a forensic assessment and her evidence was limited to her observations and treatment of the wife. The wife reported suffering a range of symptoms consistent with being the victim of domestic violence. She has engaged in standard treatment processes. Ms AN has seen the wife a further 30 times since her report was written.
Ms AN reported a brief summary of the wife’s circumstances, saying:
7. [Ms O’Loughlin] reported that she was in a 33-year relationship with [Mr Waverley]. According to [Ms O’Loughlin], she met [Mr Waverley] following the death of her first husband […]; however, they did not marry until 2001. [Ms O’Loughlin] described [Mr Waverley] as verbally, emotionally and physically abusive; stating that his behaviours towards herself and her two children were "horrific" and that she was “fearful of my life.” [Ms O’Loughlin] also indicated that [Mr Waverley] was controlling (e.g. financially, socially isolated her), unpredictable and would blame her for “everything.”
There was no significant discussion with respect to Centrelink issues or false claims for pensions or benefits. Ms AN did have some notes of the wife recounting having signed a statement that she had not read, but Ms AN had little recollection of this and limited notes on this topic.
Dr AO
Dr AO prepared a report in this matter based upon two attendances of the wife upon him, being in mid-2018. He was not challenged on his report, however it was confirmed that he had not taken into account any risk of prosecution with respect to possible Centrelink offences. In his report dated 27 August 2018, Dr AO recounted:
[Ms O’Loughlin] grew up in [Suburb AP] and was the middle of three children. She described her father as behaving strangely saying he drilled holes in the wall into her bedroom so that he could look into her room. She described him further as jovial but a man who drank a lot, whilst her mother was described as cold and hard-working. She said she felt betrayed by her father and scared of him. She ran away from home at the age of 13 and placed herself in various dangerous situations having on occasions to throw herself out of vehicles to get away from the dangerous situations. Indeed, she said she was nearly raped and murdered on several occasions during her adolescence. She had two children to her partner of 10 years [when] he [died]. She described her current partner as being cold and controlling. She said he molested her daughter and physically and mentally abused the children.
When seen [Ms O’Loughlin] presented as an alert and cooperative woman who exhibited no psychomotor abnormalities. Her speech was logical and sequential and there was no formal thought disorder. Her speech was preoccupied with the impact of her new partner on her life. Her mood was anxious, but she became tearful when speaking of the death of her partner. Her affects were reactive and appropriate. There were no perceptual disturbances and she expressed no delusions.
Thus, at that time I diagnosed [Ms O’Loughlin] as suffering from post-traumatic stress disorder arising from the fact that she had been exposed to the […] death of her partner, but even prior to this she was exposed to traumatic situations describing how the house that she was living in had been [attacked]. However she also described a disrupted developmental history, describing an abusive father and a cold and detached mother leading to her running away from home at the age of 13 and placing herself in dangerous situation and this has robbed her of the opportunity to develop a firm sense of identity and is indicative of a complex posttraumatic stress disorder, a condition that arises from being exposed to traumatic situations during childhood or adolescence.
…
When I reviewed [Ms O’Loughlin] in mid-2018 she said that the increased dose of [medication] had helped in that she was feeling calmer and not so anxious. This was despite the fact that she reported continuing to feel intimidated by her ex-partner, who she said continued to walk around the house as he was looking after the stock on their property. This was despite her having obtained [an] AVO. Thus, she said that she continued to express palpitations, breathlessness as well as feeling teary, with feelings of hopelessness at times. Thus, at that time [Ms O’Loughlin] continued to experience significant symptoms of post-traumatic stress disorder in terms of hypervigilance and avoidance symptoms. At that time, I suggested that she trial an increase of her antidepressant.
Thus, [Ms O’Louglin] suffers with both post-traumatic stress disorder and complex posttraumatic stress disorder.
…
[Ms O’Loughlin] has been compliant with treatment.
Both post-traumatic stress disorder and complex post-traumatic stress disorder can be long standing conditions. [Ms O’Loughlin] said that she was diagnosed with post-traumatic stress disorder in 1985 which would be soon after losing her husband. The length of time that she has suffered with symptoms of post-traumatic stress disorder is indicative that it is a longstanding condition and therefore it is likely that [Ms O’Loughlin] will continue to experience symptoms of post-traumatic stress disorder especially symptoms of hypervigilance and avoidance well into the future. Likewise, the complex post-traumatic stress disorder is likely to persist over several years though with the passage of time and with psychotherapy it is likely that this condition will improve slowly. However, the continuing contact she has with her ex-partner is likely to exacerbate these two conditions.
I generally accept Dr AO’s evidence.
DATE OF SEPARATION
The central issue that was litigated in these proceedings, on the husband’s case, is whether the parties separated soon after their marriage 2001 and thereafter led separate lives, or whether, as alleged by the wife, they separated much later in 2017.
There has been a large number of witnesses, all of whom have known the parties at different times. Whilst the false claims for social security are prima facie powerful evidence against the wife, those social security claims are not conclusive evidence and must nonetheless be considered in the context of the whole of the evidence. Such false claims do not operate as some form of estoppel against the wife, nor is there some principle preventing her from pursuing a s 79 claim despite the false representations.
Considering the evidence as a whole, I am persuaded that the parties did not separate within weeks of their marriage, but remained together until 2017. More difficult is the question of when the relationship transformed to that of a de facto relationship. It appears that the parties were in a in a close relationship from as early as the late 1980s, living together as a couple for various periods and having some periods where they lived in separate homes. Despite such times, it appears the parties had an ongoing relationship throughout, save for the short periods of separation when allegations were raised by the wife’s daughter against the husband, and that the parties’ relationship was not so close when the wife was at V Town. However, there is no evidence to suggest that either were in a relationship with another person during this period.
THE PROPERTY SETTLEMENT CLAIMS
Counsel for the wife sought orders providing for the wife to receive 40 per cent of the property pool, recognising the significant initial contribution of the husband. Counsel for the husband made no submissions with respect to the percentage division that would be appropriate, in the property settlement orders that may be made pursuant to s 79 of the Act, in the event that the wife’s version of the relationship was accepted.
THE PROPERTY OF THE PARTIES
The property of the parties was largely agreed.
There was dispute as to the value of various items of machinery that were in the husband’s possession (items 21 to 28 of the joint balance sheet). There was no evidence of the value of these items from a valuer. I am not persuaded that the wife’s estimates are sufficient evidence of the value of the items. In these circumstances, I have relied upon the husband’s admissions as to the value of each of the items 21 to 26, as well as item 28. As there is no evidence of value and no admission with respect to a wood burner (item 27), I have excluded it from the list of property. Similarly, with respect to the furniture of the parties, there is no evidence as to its value and, on the material before the Court, it is difficult to conclude that it would have any significant value, Therefore, I have excluded the furniture of each of the parties from the list of assets (items 29 and 30).
The outstanding spousal maintenance claim by the wife (item 37) should not be included as an asset or liability in the list of assets of the parties, as it is a debt from the husband to the wife. If it were included as an item in the list, the result would be that the wife would be paying part of her own spousal maintenance.
The husband chose to purchase a property in AQ Town in 2022 using monies in breach of the terms of consent orders made 3 April 2018 restricting his finances. The husband did not seek the wife’s consent, nor a variation of the order. This is not a case where the husband had no other real properties. Whilst the purchase does not ultimately affect the capacity of the wife to obtain her entitlements pursuant to s 79 of the Act, the wife disputes including the stamp duty expense related to the purchase in breach of the Court orders. In the circumstances of this case, it is appropriate to take the stamp duty expense into account by including that amount when calculating the division of the assets of the parties.
The wife’s outstanding debt for legal fees (item 38) that is owing to a litigation funder should not be included for the same reason that legal fees of the parties for the property settlement case are not included (item 40). The other expenses of litigation funding deserve more careful consideration. In this case, the wife will ultimately receive a very large sum from the husband, who has resisted orders for litigation funding and spousal maintenance. In effect, the wife has been held out of access to assets of the parties, thus requiring her to resort to a litigation funder to fund the proceedings. In these circumstances, the interest expenses are an expense that are different in character to that of legal fees – had the wife had access to the property of the parties, she would not have incurred this expense. Thus, the litigation funding expense should be taken up as a debt when considering the assets of the parties, just as any increase in value of the parties’ assets between separation and trial is also taken up in the list of assets due to the list using valuations at the time of trial.
The final item in dispute was the treatment of the sum of $156,565 received by the wife from her mother’s estate. The money was received some three years ago and expended by the wife in the manner she sets out in her affidavit at paragraph 292. Significant expenses were incurred in legal fees in obtaining the monies, and much of it was used for her living expenses. Notably, $30,000 was used to pay legal fees in this matter, which has been taken into account as it is included in the add-back figure for the wife’s legal fees. However, the wife deposes to some $29,057.76 being given to children and grand-children, as well as in donations. It is appropriate to include the amount of money that the wife gave away as an add-back in the list of assets.
I therefore find that the relevant assets and liabilities of the parties are as follows:
Ownership Description Value ($) ASSETS 1 Husband B Street, Suburb C (including fixed property improvements of $300,000) 1,800,000 2 Husband H Street, J Town (“Suburb K”) 930,000 3 Husband E Street, Suburb F (“Suburb F”) 1,250,000 4 Husband AC Street, AQ Town (“AQ Town”) 675,000 5 Husband Westpac Account No. …06 (as at 14 November 2022) 2 6 Husband Westpac Account No. …46 (as at 14 November 2022) 2,925 7 Husband NAB Account No. …98 (as at 14 November 2022) 13 8 Husband NAB Account No. …26 (as at 14 November 2022) 91 9 Husband Commonwealth Bank Account No. …48 (as at 14 November 2022) NIL 10 Husband Commonwealth Bank Account No. …17 (as at 14 November 2022). NIL 11 Husband Commonwealth Bank Account No. …33 (as at 14 November 2022) 3,332 12 Husband Commonwealth Bank Account No. …75 (as at 1 March 2023) 3,081,245 13 Wife Commonwealth Bank Account No. …79 (as at 25 November 2022) 727 14 Wife Commonwealth Bank Account No. …29 (as at 23 November 2022) – monies for spousal maintenance payments only 50 15 Wife Motor Vehicle 3 29,075 16 Husband Motor Vehicle 4 29,875 17 Husband Motor Vehicle 5 26,050 18 Husband Motor Vehicle 6 41,873 19 Husband Motor Vehicle 7 11,833 20 Husband Motor Vehicle 8 60,000 21 Husband Motor Vehicle 9 9,639 22 Husband Motor Vehicle 10 10,000 23 Husband Motor Vehicle 11 14,000 24 Husband Equipment 1 135,000 25 Husband Equipment 2 100,000 26 Husband Equipment 2 118,000 28 Husband Equipment 3 350 31 Husband Funds held in trust account of Barry Cosier & Associates (as at 16 March 2023) 12,113 32 Wife Funds held in trust account of Coleman Greig Lawyers (as at 16 March 2023) 25,615 TOTAL $8,366,808 ADD BACKS 33 Husband Legal fees paid to date from matrimonial asset pool (as at 16 March 2023)
Less:
$6,600 paid to the mediator for the parties;
$6,160 paid to the valuer for the parties;
$9,606.60 paid to Auscript for the transcript of these proceedings for first part of hearing
$11,288.97 paid to Auscript for the transcript for the second part of the hearing.524,917 34 Wife Legal fees paid to date from matrimonial asset pool (as at 16 March 2023) 347,135 35 Husband Stamp duty on the purchase of AQ Town property 25,700 36 Husband Payment made to the Wife pursuant to Order 1 of Orders made 2.12.2022 (costs order in favour of the Wife) 22,434 46 Wife Cash received by the wife from a family provision claim in respect of her late mother’s estate 29,058 TOTAL $949,244 LIABILITIES 39 Wife Legal fees paid to AR Financial Service (as at 3 March 2023) – interest component - $72,795.83 – conceded by both parties to be a liability of the Wife 72,796 TOTAL $72,796 NET TOTAL ASSETS $9,243,256 WHETHER IT IS JUST AND EQUITABLE TO MAKE PROPERTY SETTLEMENT ORDERS
Counsel for the husband made lengthy submissions with respect to the application of Stanford v Stanford (2012) 247 CLR 108 and Chancellor & McCoy (2016) FLC 93-752. Counsel also pointed to “fairness” as a factor, however I am disinclined to consider such a loose term as a relevant test. The looseness of the term is apparent when one considers that each party in this case sees the outcome they contend for as “fair”. The question that arises is whether there are principled reasons for concluding that it is just and equitable to make orders in the sense identified in s 79(2) of the Act, which must be interpreted in the context of the Act as a whole. Unlike the facts in Stanford, the parties here have ended their marriage, thus the “need to preserve and protect the institution of marriage” (s 43(1)(a)) has little impact if read as making orders likely to encourage the parties to remain married. In this case the section’s application is better understood as identifying the need for appropriate s 79 orders so as to protect the “institution of marriage” by ensuring that when marriages do end there are appropriate remedies for those that have relied upon a marriage and may be otherwise left without resources. Without appropriate property settlement orders pursuant to s 79 the “institution of marriage” would often be unjust and potentially oppressive to the financially weaker spouse in cases where the marriage breaks down.
Much weight was placed upon the argument that the parties had separate finances. One must be wary of placing too much emphasis upon the indicia of joint bank accounts. Whilst this indicia is attractive as it is a simple fact to determine (and important in the context of some cases, for example Chancellor & McCoy), in some cases it reflects a stereotype of marriage from the middle of the last century that may not be useful in contemporary society where both spouses are commonly working and maintain greater financial independence than the older stereotype of marriage indicates. Indeed, in many marriages finances and title holdings are arranged in ways that better meet the exigencies of asset protection and taxation minimisation, whilst in others (such as the present case) separate finances may indicate a level of financial control by one spouse. I do not accept the husband’s argument that separate finances in this case is significant for two reasons. First, I accept that the wife was subject to significant controlling behaviour by the husband and secondly, whilst they may not have had shared finances, the husband relied upon the wife in dealings with his bank.
On balance, I am not persuaded that the wife’s false claims upon the Department of Social Security were simple greed on her part, rather that they were at least prompted by the lack of funds being made available by the husband, if not his more controlling behaviour.
Also significant is that the wife has spent a lengthy part of her life with the husband, primarily as homemaker. She would now be left with little or nothing if there is no property settlement order, which could not be considered “just and equitable” in the sense of s 79(2) of the Act. The fact that practically all of the property is in the name of the husband is different to the facts in Chancellor & McCoy where each spouse had property in their name and it appears both had participated in decision making around purchase of properties. Also, in Chancellor & McCoy each party had a profession and employment history that ensured that they had been in a position to financially plan for their future, which was clearly not the situation in this case for the wife.
I accept that the parties had not made provision for each other in their wills, although this is hardly surprising on the part of the wife given how little she owns. The husband, however, had included his step-granddaughter in his will.
Considering the matter as whole, having regard to the length of the relationship, the non-financial contributions of the wife (principally homemaking) and that almost all of the property is in the name of the husband, it is clear that just and equitable is readily satisfied in this case.
CONTRIBUTIONS OF THE PARTIES
On the wife’s case, when the parties’ relationship commenced in 1986, she says she had very little by way of assets, “save for approximately $5,000”: see the wife’s affidavit filed 23 September 2022, paragraph 33.
The wife acknowledges that in 1986, the husband had assets including the R Street property (which the husband says was sold in 1995 for $315,000), Motor Vehicle 12 of unknown value and savings of approximately $35,000.
The Suburb W property was purchased using money from the R Street property sale, and thereafter various properties were bought and sold, leading to the significant pool of assets that the parties now enjoy. The bulk of the increase in assets occurred when the parties were together. Whilst the wife had little in the way of assets, she did receive a payment arising from the death of her first husband, a small amount of which was applied to expenses connected with the U Town property, such as solar lighting, furniture, building materials, chain saw wires, motor bikes, fly screens and hose fittings. The wife was also involved in inspecting properties for purchase and the sale of properties.
I accept that the husband’s initial property and astute investments have been a significant factor in the accumulation of the current wealth. However, the husband also worked on improving the rural properties (sowing, clearing, fencing and the like), tending to stock, and maintaining machinery.
The wife made significant non-financial contributions as homemaker and in assisting with the upkeep and improvement of the properties. The wife cared for the husband when he was ill in 2014 and 2017. The wife painted the top house of the Suburb O property and the interior of the R Street property, and tendered to livestock, gardens and lawns. On the evidence, she cut the husband’s hair, cooked his meals, entertained church friends and assisted with his children. Her own children lived with them at various times, however, having regard to the wife’s son’s evidence, it cannot be thought that the husband should receive any adjustment under s 75(2) of the Act for his part in caring for the wife’s children. Whilst there were allegations from the wife’s daughter, she did not make herself available to give evidence and, as a result, I do not take into account her allegations.
The wife cared for the husband’s children when they lived with them. Having observed the husband’s daughter give evidence, it was apparent from her demeanour that she felt torn in giving evidence that minimised her relationship with the wife.
Whilst the wife received a payment in 1991 of $25,000, she placed $17,000 of that on trust for her children.
I accept that there was work done on the properties and that the parties cared for animals. However, the most significant factor in the increase of their wealth over the years was the increases in property values. In this context, it must be borne in mind that the husband’s assets at the commencement of the relationship were, as described by counsel, the “well spring” of the parties’ wealth. Whilst those assets were indeed the “well spring”, each of the parties also made considerable contributions over many years that must not be overlooked.
I note that the wife received monies as a result of false claims against the Department of Social Security over various periods. Despite their illegal source, these monies nonetheless contributed to the expenses of the household. It was put that the false social security claims indicated the lack of a “fulfilling and supportive marriage”. I accept that there were many aspects of the marriage that were not “fulfilling and supportive”, however I accept that they remained together and that the wife made significant contributions carrying out the homemaker duties (cooking and cleaning) and assisted with the properties and animals. Whilst it appears that the husband is quite a private and somewhat solitary man, they nonetheless had a social life together (with the local congregation, attendance at the club, and enjoying the company of children, grand-children and at times even distant relatives).
In final addresses, counsel for the wife advanced the very realistic argument that the wife should receive 40 per cent. Counsel pointed out that he could argue for a slightly greater percentage for contributions, if a Kennon v Kennon (1997) FLC 92-757 style finding was made, but did not press for such a finding.
OTHER FACTORS
The husband is now 73 years of age and the wife 64 years of age.
Both parties are of an age where neither will do further study nor earn any significant income. It seems likely that both parties will retire with the money they have remaining. I am not persuaded that the wife’s previous false claims for social security indicate that she has skills that would enable her to earn an income on the basis that she could “engage in complex and ongoing tasks”, at least not sufficient to make it realistic that she could earn a significant income.
Their future needs appear similar; however, although the wife is somewhat younger and could earn a modest amount should she take up low level work, I am not persuaded that she could earn any significant amount.
Whilst any order will affect the capacity of the husband to earn passive income from the assets, this is not a case where the order would leave the husband without the ability to earn an income. Indeed, the same submission can be made for the wife.
I am not persuaded that an adjustment to the contributions assessment is warranted in this case.
WHETHER THE PROPOSED ORDERS ARE JUST AND EQUITABLE
The resulting figures will see the husband retain one and a half times the amount the wife retains: around $5.5 million compared to the wife’s $3.7 million. The property to be received by each party is sufficient for a comfortable standard of living in retirement. Whilst this is a significantly greater amount to the husband, it is just and equitable in this case given the significant initial contribution that he made in bringing real property to the relationship at a time when the wife had little income earning skills and children to support.
The wife seeks to remain living at the Suburb C property with a cash adjustment. This appears to be a just and equitable method of implementing the property settlement. Allowing the husband fourteen days to pay the balance that the wife will be entitled to should be sufficient time for him to draw funds in the deposit account.
I am persuaded that the form of orders sought by the wife is generally appropriate to effect the findings I have made.
CONCLUSIONS
I therefore make orders largely in the terms sought by the wife to effect a split of the parties’ property (as outlined in the table above) of 60 per cent in favour of the husband and 40 per cent in favour of the wife.
I certify that the preceding one hundred and twenty-six (126) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated:24 April 2023
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