PAPPIN & PAPPIN

[2019] FCCA 1579

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAPPIN & PAPPIN [2019] FCCA 1579

Catchwords:
FAMILY LAW – Property – pool to be established – contributions – non-disclosure – reliability – alteration of interests.

Legislation:

Family Law Act 1975 (Cth), ss.75, 90XZB

Cases cited:

Mallett v Mallett (1984) FLC 91-507

Applicant: MR PAPPIN

Respondent: MS PAPPIN

File Number: BRC 11607 of 2017

Judgment of: Judge Coates

Hearing date: 10 April 2019

Date of Last Submission: 10 April 2019

Delivered at: Brisbane

Delivered on: 14 June 2019

REPRESENTATION

Applicant: Self-represented

Counsel for the Respondent: Mr Drysdale

Solicitors for the Respondent: McInnes Wilson Lawyers

ORDERS

1. That within 30 days of the date of these orders, the Respondent transfer to the Applicant, at the Applicant’s costs, all of her right, title and interest in the property known as and situated at Property L, Town J, (“Property L”) in the State of Queensland being (omitted), and being all that property contained in Certificate of Title Reference No. …4.

2. That concurrently with the transfer of Property L to the Applicant, the parties, at the Applicant’s costs, take all necessary steps and execute all necessary documents to release and discharge the Respondent from the mortgage debt secured over Property L, and thereafter the Applicant indemnify the Respondent and keep the Respondent indemnified in respect of all liabilities and outgoings secured against Property L.

3. That the Applicant indemnify and keep indemnified the Respondent against any liability in respect of borrowings from Mr A Pappin and Ms B Pappin.

4. That the Real Property located at Property M, Country B (“the Country B property”) be forthwith listed for sale on the following condition:

   (a)With an Agent or Agents agreed upon by the Applicant and Respondent but failing such agreement the Agent shall be determined as follows:

   (i)The Respondent will provide to the Applicant within seven (7) days of the date of Final Orders a list of three (3) prospective agents;

   (ii)The Applicant shall select an Agent from such panel; and

   (iii)Thereafter the parties shall within seven (7) days of the Applicant notifying of his selection from such panel, execute a listing authority with such agent;

   (b)The list price of the Country B property be agreed between the parties and failing agreement within 14 days of an agent being appointed the list price will be as nominated by the real estate agent;

   (c)The sale price of the Country B property be agreed between the parties and failing agreement any offer to buy the Country B property that is at least 90% of the list price be accepted by the parties as the sale price;

   (d)The parties are to co-operate in every way with the real estate agent in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the Country B property at all times reasonably requested by the agent and ensuring that the Country B property is clean, neat and in good order at the time of inspection by any prospective buyer; and

   (e)Upon the agreement being reached for sale of the Country B property, the parties will execute the contract of sale and all other documents necessary to complete the sale of the Country B property including all transfer documentation upon its submission to them by the agent or their solicitor.

5. That upon settlement of the sale of the Country B property, the proceeds of sale of the Country B property will be paid in the following manner and priority:

   (a)Payment of agents commission and legal costs associated with such sale;

   (b)In repayment of the mortgage debt owed to Property N;

   (c)The Respondent to bring her overall share of the matrimonial property pool (as defined in Order 10) to 65% in accordance with Order 10 herein; and

   (d)The balance, if any, to the Applicant in accordance with Order 10.

6. That in the event the Country B property is not sold by private treaty pursuant to Order 4 on or before six months from the date of this Order then the Applicant and Respondent do all things necessary to sell the property by auction and the following apply:

   (a)The Country B property will be listed with the agent appointed under Order 4(a) (“the Auctioneer”) for sale by auction within a further three (3) months;

   (b)The parties will execute all documents requested by the auctioneer for sale of the Country B property by auction;

   (c)The reserve price of the Country B property will be such amount as is agreed between the parties and failing agreement being reached between the parties 21 days prior to the auction, then the reserve price will be nominated by the auctioneer;

   (d)The parties will give such instructions as are necessary to a solicitor to prepare a contract of sale and provide it to the auctioneer prior to the auction no later than the date sought by the auctioneer;

   (e)The parties agree to co-operate in every way with the auctioneer in relation to the sale by auction including allowing inspection of the Country B property at all times reasonably requested by the auctioneer and ensuring that the Country B property is clean, neat and in good order at the time of any inspection and on the day of auction;

   (f)The sale price of the Country B property will be any amount in excess of the reserve price but in the event of the reserve price not being reached the sale price of the Country B property will be such amount as is agreed between the parties or failing agreement any offer after the auction to buy the Country B property at a price that is at least 85% of the reserve price will be accepted by the parties; and

   (g)That upon agreement being reached for sale of the Country B property Orders 4(e) and 5 will apply.

7. That in the event that the Country B property is not sold at the auction pursuant to Order 6 or within 14 days after the date of the auction by further negotiation, then the Applicant and Respondent will cause a further auction of the Country B property to be held within four (4) months after the date of the first auction and for that purpose the provisions of Order 6 will apply.

8. That the Applicant retain, for his sole use and benefit, to the exclusion of the Respondent:

   (a)Funds in any bank account in his sole  name;

   (b)Chattels in his possession;

   (c)The 4WD motor vehicle (registration: …) in his possession;

   (d)motorcycle N (registration: …) in his possession;

   (e)Subject to the superannuation splitting order in favour of the Applicant herein, any superannuation entitlements in his name;

   (f)Any other property or chattels in the Applicant’s name or possession that are not otherwise the subject of these orders; and

   (g)The legal fees added back as set out in Annexure “A”.

9. That the Respondent retain for her sole use and benefit to the exclusion of the Applicant:

   (a)The proceeds of sale of the Suburb G property held in trust account of McInnes Wilson Lawyers, with this order authorising McInnes Wilson Lawyers to pay those monies to the Respondent or apply them as directed by her;

   (b)Vehicle O (registration: …) in her possession;

   (c)Funds in any bank account in her sole name;

   (d)Chattels in her possession;

   (e)Any superannuation entitlements in her name; and

   (f)Any other property or chattels in the Respondent’s name or possession which are not otherwise the subject of these orders.

10. That following the settlement of the sale of the Country B property, an account be taken of the assets, including superannuation and liabilities of the parties that are set out in Annexure “A” to those orders, with the value ascribed to the assets and liabilities for the purpose of the accounting as set out in Annexure “A”, and calculated in accordance with Annexure “A” (“the matrimonial property pool”) and thereafter:

    (a)The Respondent to receive so much of the nett proceeds of sale of the Country B property so that the Respondent receives 65% of the matrimonial pool; and

    (b)The Applicant to receive the balance.

11. That pending the sale of the Country B property:

    (a)Any rented income continue to be paid into Property N Bank Account …3 (“the Country B bank account”);

    (b)Any expenses associated with  the maintenance, rates or other costs in respect of the Country B property be paid out of the Country B Bank Account;

    (c)The parties do not further encumber the Country B property; and

    (d)At the time of settlement of sale, the balance of the Country B Bank Account be applied to reduce the mortgaged debt over the Country B property.

12. That in respect the Applicant’s P Superannuation Fund (Member number …09), the following shall apply:

    (a)The base amount of $171,000.00 out of the interest held by the Applicant in the P Superannuation Fund is allocated to the Respondent;

    (b)That, pursuant to s.90XT (1)(a) Family Law Act 1975, whenever the trustee of the P Superannuation Fund makes a splittable payment from the interest, held by the Applicant, the trustee shall pay to the Respondent or, on the Respondent’s death, her legal personal representative the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, and there shall be a corresponding reduction in the entitlement the Applicant would have had in the P Superannuation Fund but for these Orders;

    (c)That Order 12(b) has effect from the operative time;

    (d)That the operative time of these Orders is the fourth business day after an Original Certified Copy of the sealed Order is served upon the said Trustee;

    (e)That the trustee of the P Superannuation Fund, in accordance with the obligations set out under the Family Law Act 1975 and Family Law (Superannuation) Regulations 2001, shall do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of, and make payment to, the Respondent in accordance with Order 12 of these Orders;

    (f)That until such time as the said superannuation split to the Respondent pursuant to these orders can be rolled over into a separate account, the Applicant shall:

    (i)Provide to the Respondent no less than 28 days’ notice before such time as the Applicant elects to retire from and/or take voluntary retirement and/or for any reason accepts or becomes entitled to access in whole or part to his entitlement to the said fund; and

    (ii)the Applicant shall direct and authorise the Trustee of the said fund to communicate with the Respondent and/or any person authorised in writing by the Respondent to answer any reasonable enquiries as may be made by the Respondent or on the Respondent’s behalf from time to time in relation to the Respondent’s entitlement to the fund and to provide to the Respondent and/or the Respondent’s authorised representative a copy of any notice or any application in the fund insofar as that release may affect the Respondent’s entitlements pursuant to these orders;

    (g)Each party and the Trustee has liberty to apply not less than three (3) business days’ notice, in respect to the implementation of these superannuation splitting Orders.

13. That save for the assets aforementioned each party shall hereafter retain all assets and financial resources in their respective possession, power, and/or control and the other shall relinquish all right title and interest in and to the same.

14. That:

    (a)Each party will do all things reasonably required by the other including the signing or execution of all necessary documents to give effect to the provisions of this Order within 14 days of being requested to do so;

    (b)If either party refuses or neglects to sign or execute and return a document within 14 days of a written request to do so then the Registrar of the Brisbane Registry of the Federal Circuit Court is hereby appointed under s.106A of the Family Law Act 1975 to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal; and

    (c)A defaulting party will pay the other party’s taxed costs of and incidental to such request and production of documents to the Registrar.

ANNEXURE “A”

ITEM	TO BE RETAINED BY	VALUE
Real Property
Proceeds of sale of the Suburb G property (held in the Trust account of McInnes Wilson)	Respondent	$94,095.67
Property L	Respondent	$22,031.00
Property N, Country B	Nett proceeds to be distributed in accordance with orders	To be determined following sale, with the value to be sale price less commission, costs of sale and any taxes and less mortgage
Motor Vehicles
4WD	Applicant	$4,000.00
Vehicle O	Respondent	$4,000.00
Motorcycle N	Applicant	$4,000.00
Bank Accounts
ANZ Access Advantage Account ending in …9 (as at 22/09/17)	Applicant	$7,306.20
Other
Q Insurance	Applicant	$84,152.72
R Insurance	Applicant	$5,256.00
Goods and chattels – Suburb G property	Respondent	$9,720.00
Property L Goods and chattels	Respondent	$2,855.00
Add back of legal fees paid by Mr Pappin (for period 23/08/17 – 16/01/18 and 10/10/18 – 30/01/19)	Applicant	E$39,676.00
Liabilities
Country B Property mortgage	Joint	$102,000.00
Superannuation
P Superannuation – total $286,658.00 To be split pursuant to orders	Applicant Respondent	$115,658.00 $171,000.00
S Superannuation	Respondent	$938.38
T Superannuation	Respondent	$52.92

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 11607 of 2017

MR PAPPIN

Applicant

And

MS PAPPIN

Respondent

REASONS FOR JUDGMENT

1. This is a property application filed by the husband.

2. It was difficult determining just what percentage of the pool he sought as his Initiating Application, filed 2 November 2017, sought an equal division from the sale of the matrimonial home, an unequal division of his superannuation without particularising what percentage that would be, transfer of a residential unit at Town J to him and other orders. Later, his material suggested a 40 percent division of property to him, but he calculates the pool very differently from the wife.

3. Whatever the actual figure, the issues can be determined.

4. He considers the pool to be structured differently from that put forward by the wife.

5. In any case, his orders would be achieved by:

   a)Selling Property M, Country B, giving 60 percent to him and 40 percent to the wife;

   b)Dividing the sum of $94,095.67, proceeds of the sale the former marital home at Suburb G in Brisbane and held in the trust account of McInnes Wilson Lawyers, in the sum of $38,916 to him and $76,179, which would include an interim distribution of $20,000, to the wife;

   c)Assigning an interest in his P Superannuation Fund to the wife with using a base figure of $126,388;

   d)Transferring the wife’s interest in a unit at Property L, Town J to him, and

   e)The parties keeping everything else they have in their possession.

6. The husband rejects the wife’s claims for spousal maintenance.

7. The wife seeks a 65 percent division of the property in her favour.

8. Such would be achieved by:

   a)Transferring her interests in a unit at Property L, Town J, to the husband;

   b)Selling a residential unit at Property M, Country B, giving enough of the sale proceeds so her overall settlement would be 65 percent of the pool;

   c)Retaining the sum of $94,095.67 held in the trust account of McInnes Wilson Lawyers;

   d)Retaining Vehicle O;

   e)Retaining furniture in her possession;

   f)Splitting the husband’s P Superannuation Fund using a base figure equivalent to 65 percent for her;

   g)With the husband retaining furniture in his possession;

   h)With the husband retaining a 4WD motor vehicle;

   i)With the husband retaining a motorcycle N, and

   j)With the husband retaining the proceeds of his redemption of his insurance policy held in a Country B company, Q Insurance.

9. The wife also sought spousal maintenance in the sum of $400 a week for two years, however, a submission was put, properly, that if she achieved the property settlement sought, the court may have difficulty in determining her need for spousal maintenance.

10. As a matter of trial management, the husband objected to new material being filed by the wife a day or two before the trial began and she then withdrew reliance on such material.

11. The first step is to determine whether it would be just and equitable to make orders which alter interests in property.

12. In this matter it would be just and equitable, as the parties have separated and have joint property and they need to sever their financial relationship.

13. The court then has to determine the pool, contributions which are usually reduced to a percentage figure so that property can be equitably divided, and determining any adjustment under s.75(2) of the Family Law Act 1975 (“the Act”), commonly referred to as needs.

14. As to the relationship background, the husband is aged 55 and the wife is aged 52.

15. They married on … 2000 and separated on 10 March 2017.

16. They have one child, aged 17, turning 18 in June this year.

17. The husband lives and works in Town J and the wife and daughter live in Brisbane.

18. The husband is an educator.

19. The wife is unemployed.

20. The parties were born in Country B and came to Australia in 2009 when the husband gained work as an educator.

21. They lived in South Australia, then Brisbane and now the husband lives and works in Town J.

22. I will come back to the assessment of contributions, which under the Act include both financial and non-financial contributions.

23. Before doing so the pool has to be established.

24. There are disputes over the pool, the assets and liabilities alleged by the wife were stated in exhibit two, but the husband claiming that a trailer had to be added, as well as the wife’s jewellery. He also did not accept some of the values stated in exhibit two.

25. The first dispute is over the value of Property M in Country B, with the wife stating it is valued at $235,370 and the husband stating its value in Euros, being €179,000, which he states coverts to $282,823.

26. The property was purchased together in 2001.

27. The parties fell into dispute over who would value the property.

28. The wife then commissioned a valuation because of the failure to reach agreement, and a report attached to her affidavit filed 17 October 2018 by a person named R, gives a valuation of €144,000, which the wife’s states converts to $235,370.

29. Although the document is written in Country B, the husband would not accept the valuation given, stating it was a self-assessment by the wife, although he accepted that the document was concerned with giving a market value of a property.

30. As to the husband’s assessment of value, he arrived at his figure of $282,823 by taking the purchase price in 2001 and multiplying that by the current exchange rate between the Euro and the Australian dollar.

31. How he arrived at such a method to achieve a valuation is not obvious, and at best, it is some type of mathematical calculation which achieves a number, with no connection apparent as to how that relates to market value.

32. It is guesswork.

33. The husband did not give evidence of commissioning a valuer to get a report, so I will accept that the wife had no choice and obtained a valuation, which I accept.

34. Despite this part of the dispute, the property is to be sold, so its real value will be realised, which may be more or less than the figures produced, although the court requires at least some guide to its value so I will accept the wife’s figure of $235,370, as she attempted to comply with directions to supply evidence of values.

1. The second dispute was whether a redemption of the husband’s Q Insurance policy was part of the pool.

2. The husband received $83,055 in February 2019.

3. His sworn evidence in an affidavit filed 10 October 2018 was that he had held the policy for 16 years, but in oral evidence he said he made a mistake and had it since 1989. He also stated that he estimated the value at $42,600.

4. Just five months later in February 2019 he redeemed the policy, receiving €53,241, which he said converted to $83,055, almost double his stated estimation in October 2018.

5. He said he paid the insurance and did not want it to be part of the pool.

6. A factual issue arises – did the husband make a mistake?

7. I do not accept he could make a mistake, because the 16 years he held the policy as he referred to in the affidavit evidence also equates with about the length of the marriage, and the time is far different from holding the policy since 1989, a period of about 28 years.

8. He paused when asked whether he read his affidavit through before signing it.

9. I viewed his delay in answering as a delay caused by calculating how big the mistake was.

10. I do not accept that he has held the policy for 28 years as claimed in oral evidence, as he produced no documentary evidence of such ownership when such must exist.

11. The husband underestimated by about half what he said he thought the redemption of the policy would bring which at best was an unreliable estimate, and his further claim that he held the policy since 1989 was a further indication of unreliability as to his evidence.

12. On that basis I find the evidence is that he held the policy for about 16 years, as he originally stated.

13. The fact is that the parties were together for 17 years and there were some financial and most certainly non-financial contributions by the wife, those non-financial contributions allowing the husband to contribute to this policy. The real issue is what weight I give to the amount he gained upon redemption, looking at all contributions together.

14. I will include the amount in the pool.

15. The third issue was the value of a 4WD motor vehicle the wife valued at $8,000, as both parties originally agreed, or $4,000 as the husband claimed at trial.

16. The husband’s challenge to the value came after the agreement that it was valued at $8,000 and based on his view of a Redbook valuation (a published guide to vehicle valuation).

17. The disagreement, coming as it did after agreement was reached, identified another claim made by the husband which indicated an unreliability about his evidence generally.

18. In any case, the wife eventually agreed to a value of $4,000.

19. The fourth issue is a dispute over legal fees with the wife seeking an accounting of them by the husband and that they then be treated as a notional amount to be added-back to the pool.

20. She assessed the legal fees paid by the husband at $19,809.20, but he told the court he had in fact spent $39,676, although he did not produce the accounts.

21. The wife’s case is that the fees should be accounted for as they would otherwise have been available to the pool.

22. He obviously consulted lawyers soon after separation, so what the wife claims is justifiable – such monies would have been available as part of the pool to be considered.

23. Adding amounts back has been held to be a discretionary decision by the authorities.

24. Factors have to emerge as to the exercise of the discretion one way or another.

25. There was no new evidence filed by the husband so he is hardly challenging the position of the wife.

26. I will add-back his legal fees as I am satisfied that such ought be added-back.

27. The fifth dispute is the value of the husband’s P Superannuation Fund.

28. The husband referred to a December 2018 statement which he valued the fund at about $250,000, but exhibit one states it is valued at $286,207.03, with the tax free component being $451.81.

29. Exhibit one is a statement obtained by the wife’s solicitors because the husband did not take steps to update disclosure.

30. The covering letter is dated 4 April 2019 and states the taxable component of the superannuation is $286,207.03, with the tax free component being $451.81.

31. The statement says the information is provided by the trustee of P Superannuation to comply with s.90XZB of the Act.

32. I take the value then to be those two sums added together, being $286,658.89.

33. Again the issue arises as to the husband’s reliability, because he did not obtain an updated superannuation statement and wanted to rely on a lesser figure from an unknown source.

34. The sixth dispute is over the valuation of the goods and chattels from the Suburb G property, which the parties owned. They have been valued at $9,720, but the husband states it is incomplete as the wife’s jewellery was not included. He claimed at paragraph 31(j) of his affidavit filed 10 October 2018 that she has previously stated she has about $32,481 worth of jewellery, but he gives no particulars other than that.

35. I accept that it was not valued, but I am going to treat the wife’s jewellery as her personal items, with no utility in relation to increasing the wealth of the pool.

36. That is because the husband has not been able to particularise the jewellery and stated that most of it was inherited from her mother in any case, with some given by him.

37. There was nothing to suggest that the jewellery is worth a great deal of money as the husband claims.

38. The seventh issue concerned monies held in a Country B bank account into which rent from the Country B unit is paid. The husband wanted to know why its amounts had decreased from holding about €3,500 in 2017 to €2,740 recently.

39. The wife admitted taking €300 for accommodation and car hire when she visited her elderly parents on a recent trip. The accommodation was for herself and the child of the relationship.

40. She stated she did not stay with her parents because they are elderly and she feels uncomfortable with them.

41. She also stated that the monies received went to pay the mortgage on the unit, repairs and the tenants were repaid €500 as they had overpaid rent.

42. The wife was not questioned as to the veracity of her statements and her explanation sounded plausible in relation to the costs of a rental property.

43. As the wife is unemployed and has no other way of obtaining money other than through social security payments, I do not intend making a finding that the small amount used, €300, alters the pool.

44. The eighth issue is whether a trailer ought be included in the pool. There was conflicting evidence, with the husband stating it was worth $2,000 and the wife stating he left it at the house, unregistered, and she had to give it away. The husband took no steps to secure the trailer when he knew the wife was cleaning and preparing the former matrimonial home at Suburb G for sale, so I will not include it in the pool. People are expected to look after their interests.

45. The ninth dispute is whether $20,000 used by the wife should be added-back to the pool. The money was received at the time of property settlement. The wife needed the money at the time to live on, money was available to the husband from the pool to pay such and it should be considered as a spousal maintenance, so I will not add it back to the pool.

46. Having made those decisions, the pool then is as follows:

ITEM	OWNER	VALUE
Real Property
Proceeds of sale of Suburb G property	Joint	$94,095.67
Country B property	Joint	$235,370
Property L, Town J	Joint	$150,000
Motor Vehicles
4WD motor vehicle	Husband	$4,000
Vehicle O	Wife	$4,000
motorcycle N	Husband	$4,000
Bank Accounts
Property N bank account …3 (1,736.10 Euro) (as at 29 March 2019)	Wife	$2,740.20
ANZ Access Advantage account ending in …1 (as at 29 March 2019)	Wife	$522.15
ANZ Access Advantage account ending in …9 (as at 22 September 2017)	Husband	$7,306.20
ANZ Access Advantage account ending in …4	Husband	Unknown
Funds in account ending in …2	Husband	Unknown
Funds in International bank accounts	Husband	Unknown
LLL  (Mr Pappin FS)	Joint	$207
Other
Q Insurance (€53,241 as at 1 January 2017)	Husband	$83,055
R Insurance (3,217.50 Euro predicted 14 April 2014 for 2018)	Husband	$5,256
Goods and chattels – Suburb G property	Joint	$9,720
Goods and chattels – Property L property	Husband	$2,855
Add back of legal fees paid by the husband (for period 23 August 2017 to 16 January 2018 and 10 October 2018 to 30 January 2019	Husband	E$19,809.20 $39,676
Total	$626,936.42
Liabilities
ANZ Frequent Flyer Black credit card …94 (as at 22 January 2018)	Husband	$196
T Bank Basic Home Loan account …72 (as at 30 September 2018)	Joint	$127,968.88
Country B property mortgage	Joint	$102,000
Town J loan	Husband	$8,160
Total	$230,164.88
Superannuation
P Superannuation (as at 4 April 2019)	Husband	$286,658.84
S Superannuation (30 June 2018)	Wife	$938.38
T Superannuation (as at 8 April 2019)	Wife	$52.92
NET ASSETS INCLUDING SUPERANNUATION	$684,383.38

1. Returning now to contributions, the husband’s case seemed to devalue the non-financial contribution of care of the child provided by the wife, especially as he worked away at times.

2. He also seemed to be stating that she was not much of a housewife.

3. I was taken by surprise as the husband did not seem to have a good word for anything the wife did.

4. Yet she did not come across in the evidence as being a lazy, incapable or a mean person and the case was not put to her that she did not do too much around the house, although comments were made to that effect.

5. The husband has undervalued what the wife has done, and that is to raise their daughter all of the time, when he could only assist part of the time.

6. Further, there was no evidence to suggest that other housework she did do was not adequate.

7. In fact when the parties separated and left the Suburb G home, the wife claimed the husband had left it in a mess because he occupied it for some time by himself.

8. There was a dispute over the wife’s contributions to the buying of the Country B unit, where she states she received a €30,000 gift from her parents, while he stated it was €25,000, and a loan from her brother of €25,000, which he said he paid back.

9. Given that the wife did not do a great deal of paid work, I accept the husband’s earnings were mainly used to pay back the wife’s brother, but the use of the loan was brought about through the wife’s family, the intention being to assist the parties to acquire real property.

10. The husband’s case was that the wife, relying on some small injuries, and not finishing her university studies, gave excuses which the court should not accept in relation to her ability to contribute more financially.

11. In fact the wife has been involved in three traffic accidents which she states have left their mark on her, while she also suffers some depression and anxiety because of the relationship, despite contributing financially what she could.

12. One of the car accidents resulted in an assessment of a six percent spinal impairment, a position not accepted by the husband as a hindrance to her ability to work and contribute financially.

13. For one of the car accidents she received a personal injuries payout, she thought about $17,000, which she contributed to the use of the family.

14. The husband said she did not ever go to a doctor so she could not claim she suffered anxiety, yet he admitted seeing packets of diazepam, which is a drug for anxiety.

15. I do not understand the drug is available without a prescription, which indicates that the wife must have attended for medical assessment.

16. The husband then questioned whether a general practitioner can diagnose depression or anxiety – and the answer is in the affirmative, as such is a medical condition.

17. The wife stated she would not tell the husband about her medical issues because of the strained relationship between them.

18. The husband’s contributions have been to provide the main financial wherewithal for the family. He has worked and has been able to study so that he has professorial qualifications.

19. Part of his ability to do that was because the wife did the housework and contributed by looking after family life and the child.

20. Such should not be discounted, as stated in Mallett v Mallett (1984) FLC 91-507, where Wilson J at 7,126 stated:

    “However, equality will be the measure, other than it being equal, only if equality of the respective contributions of the husband and wife, each adjusted by reference to their sphere, are equal. The quality of the contribution made by a wife as a homemaker or parent may vary enormously, from the inadequate to the adequate to the exceptionally good. She may be an admirable housewife in everyway or may fulfil little more than the minimum requirements. Similarly, the contribution of the breadwinner may vary enormously and disserves to be evaluated in comparison with that of the other party. It follows that it cannot be said of every case where the parties reside together that equal value must be attributed to the contribution of each. That will be appropriate only to the extent that the respective contributions of the parties are each made to an equivalent degree…”

    Further, at 79,127 Wilson J also said that:

    “The objective of the section is not to equalize the financial strengths of the parties. It is to empower the court, following a dissolution of a marriage, to effect a redistribution of the property of the parties if it be just and equitable to do so ...”

21. As the Act is written and interpreted, arriving at a percentage figure for altering interests in property is not a mathematical calculation, and nor could it be when non-financial contributions have to be taken into account.

22. In my view I would arrive at the contributions being equal, as the wife’s non-financial contributions cannot be discounted. If the husband is correct in his case that he seeks that she take 60 percent of the pool, the figure is probably near where he would put contributions in any case, with any further adjustment being determined on the needs of the parties.

23. The court now has to assess relevant considerations in s.75(2) of the Act, which have been referred to as the needs of the parties.

24. The husband is aged 55 and the wife is aged 52.

25. The husband is an educator, and earns $2,590 a week.

26. He has a contract until late 2021, and produced no evidence of an oral claim that it cannot be renewed.

27. Nor did he give credible evidence to support that claim.

28. Given that he has always found employment I have doubt as to the claim that the contract cannot be renewed or that he would not find work in the future, as his history is one of finding suitable employment.

29. On tested evidence, I was satisfied that the husband has also engaged in consultancy work and such is still open, should he choose to seek consultancies.

30. The husband also said he has a frozen shoulder and may need surgery, although again, no evidence was produced.

31. He is living with his partner and her financial situation is not known.

32. The wife earns $760.66 from social security payments.

33. She is not qualified and can expect, should she be able to get a job at her age, unskilled work.

34. I was satisfied that she has applied for employment as a Centrelink requirement.

35. The child is in her care, but she will be 18 on …, although she is still at school.

36. The wife has a boyfriend who lives separately from her. No evidence appeared that he supported her costs of living in any way.

37. Her situation is that she married, had a child, looked after the child and had her career prospects curtailed because she chose to look after the child and attend to housekeeping. Child care is a most important contribution to family life.

38. Housekeeping cannot be underestimated as a contribution to family life as I have stated above.

39. The husband has the prospects of continuing work into the future, whereas the wife has limited prospects of obtaining unskilled work, if she is offered employment.

40. She is on a disability pension, so it is unlikely that she will obtain work.

41. I cannot say the husband has been the most reliable witness in relation to values, and part of that is a disclosure consideration because he did not obtain up to date information about his superannuation, and under-assessed the value of his insurance which he redeemed and made an inexplicable assessment of the value of the unit in Country B.

42. His credibility does not hold up intact.

43. Because of the wife’s needs, and because I was not satisfied with the frankness required by the husband in all matters, I conclude that his prospects are better than he makes out. He has a reasonable working life ahead and the wife’s ability to work is limited, more likely than not to unskilled work. On those grounds would increase the wife’s needs by 15 percent.

44. As to spousal maintenance, as the wife achieved the 65 percent of the pool as she sought, she will no longer be able to prove a need. I will dismiss that application.

45. I will make the orders sought by the wife and note that her draft orders included a schedule of the pool with some differences as to what I produced at paragraph 80 above. The schedule I now produce in the orders section of this judgment is the actual pool after all decisions have been made. The difficulty created in this matter was the manner in which the husband ran his case and his failure to prosecute his case.

I certify that the preceding one hundred and twenty five (125) paragraphs are a true copy of the reasons for judgment of Judge Coates

Associate: 

Date: 14 June 2019