Pelley and Thurstan

FEDERAL CIRCUIT COURT OF AUSTRALIA

PELLEY & THURSTAN

[2018] FCCA 3803

Catchwords:
FAMILY LAW – Parenting and property – family violence – parenting application dismissed – credibility – alleged debts not proved – husband claims limited capacity for employment – single pool approach.

Legislation:

Family Law Act 1975 (Cth), ss.75(2), 90MT(1)(a)

Cases cited:

Makita (Aust) Pty Ltd vSprowles (2001) 52 NSWLR 705

Jones v Dunkel (1959) 101 CLR 298

Applicant:

MR PELLEY

Respondent:

MS THURSTAN

File Number:

ADC 2311 of 2016

Judgment of:

Judge Young

Hearing dates:

16, 17, 18 and 23 May 2018 and 26, 27 November 2018

Date of Last Submission:

27 November 2018

Delivered at:

Adelaide

Delivered on:

27 November 2018

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

In person

ORDERS

That within 14 days of the date of the order made 26 November 2018 the husband pay the wife the sum of $25,000.00.
That upon receipt of the payment from the husband the wife is to vacate the former matrimonial home at Property A, South Australia. The wife is permitted to remove the beds and bedding necessary for herself and the children and other personal effects but otherwise the furniture and other chattels inside the home are to be retained by the husband.
That once the wife vacates the former matrimonial home the husband pay the further sum of $217,000.00 to the wife within 60 days of the wife vacating the house.
That if the husband does not pay the outstanding sum to the wife the property situate at Property A is to be sold by auction within a further 60 days with the wife to nominate three agent auctioneers and the husband to choose one.
That a reserve price is to be determined by the auction agent.
That if the property is not sold the agent is to arrange for a further auction with no reserve price within a further 30 days.
That the husband pay to the wife 36.4% of the net proceeds of the sale of the house.
That pursuant to section 90MT(1)(a) of the Family Law Act 1975 where the Trustee of the Fund makes a splittable payment from the interest held by the husband in the fund, the Trustee shall pay to the wife an amount calculated in accordance with Part 6 of the Family Law (Superannuation Regulations) 2001, using the base amount and there shall be a corresponding reduction in the entitlement the husband would have had in the Fund but for these Orders.
That the base amount allocated to the wife out of the interest held by the husband in the Fund is $18,474.00 ("the base amount").
That the wife is to notify the superannuation trustee of this order and the order will take effect on the fourth business day after the day on which a certified copy of these orders is served on the trustee of the fund.
That the application for Divorce filed by the husband on 8 September 2016 be dismissed with to husband permitted to file and serve a new application for Divorce.
That all outstanding Applications are dismissed and the proceedings are removed from the Active Pending Cases List.
That the parties have liberty to apply for further orders in relation to the sale of the property.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2311 of 2016

MR PELLEY

Applicant

And

MS THURSTAN

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is a parenting and property matter. The parenting case has been about [X], who is two and a half years old. On 17 May 2018, consent orders were made that the mother was to have sole parental responsibility for [X] and that he live with her. Other orders were made in accordance with the recommendations in the family report that the father undergo counselling and therapy in relation to his propensity for family violence. The parenting case was adjourned for those steps to happen and for Mr Pelley to obtain a report about the successful completion of the things he was to do under the consent orders.
Those matters were not undertaken by Mr Pelley and yesterday, when the matter came on before me, the father said that he did not seek orders that [X] spend time with him. Accordingly, no time orders were made and the balance of the parenting case was dismissed.
That left the property issues outstanding. The background to this is that the husband was convicted of two counts of aggravated assault against the wife. That charge was heard on 28 February 2018 after a defended hearing when the magistrate found the applicant husband was not a credible witness. The aggravated assault convictions related to an assault on 9 April 2016, when the husband slapped the wife after a disagreement about looking for stationery in the house. The second charge arose out of events on 17 May 2016 when the husband punched the wife in the pubic area. That allegation was supported by medical evidence. The wife left the former matrimonial home the day after that assault, or, rather, the husband left the matrimonial home after that assault. The husband affirmed in his trial affidavit on 27 February, that is, the day before the hearing in the Magistrates Court, that he “strenuously denied” the wife’s allegations of family violence.
I find that denial is false and deliberately so. I have formed an adverse view of the husband’s credibility over the course of his evidence in this trial. Another example related to evidence about the time of separation. The husband maintained that separation occurred in April 2015. The wife claimed that separation occurred on 18 May 2016, following the second assault by the husband. The wife said that in March 2016 she and the husband were still socialising with friends as a couple. She gave an example of having dinner at the home of some friends, Mr and Mrs O.
The husband denied this. The next day, the wife produced photographs of a family dinner with the persons present she identified as Mr and Mrs O. The husband did not deny the dinner or having attended the dinner with the wife but then attempted to deny that he and the wife were a couple at that point. The photograph shows the husband standing close to the wife and the scene looks to me as if they are still a couple. I reject the husband’s evidence about the date of separation and find that it is false.
I do not accept that the husband is a truthful witness and I do not accept any of his evidence unless it is corroborated independently or it is uncontentious. I find the wife is generally a truthful witness, although prone to exaggeration in some aspects of her evidence, particularly about her contributions to the asset pool of the parties.
The further background is as follows. Both the husband and wife are of [nationality] descent. The husband migrated to Australia in 2002. In 2006, the husband was injured at work and received a compensation payment of $30,332. The husband asserted that he still has a permanent disability as a result of this injury. He annexed a brief report to his trial affidavit from a general practitioner, which said as follows:
This man has a chronic back injury, which is steadily getting worse. He has had it since 2006. He has a chronic disability and has been a regular patient of mine.
In addition, there was a Centrelink medical certificate attached to the husband’s trial affidavit and he also tendered another certificate which I call Exhibit A2. Those certificates are in more or less the same terms. They are simply medical certificates. One is dated 21 December 2017 and says that the husband is capable of eight hours work a week, but there is a note in the certificate (from a very poor photocopy):
He has a chronic, severe –
and “severe” is misspelt as s-v-e-r-e:
He has chronic, severe back pain from a previous back injury. No more than two hours light duties daily.
The second certificate, Exhibit A2, is dated 20 November 2018, that is, around about the date of the trial. The certificate has a new date but the statement that the husband:
has a chronic, severe –
contains exactly the same misspelling, s-v-e-r-e:
back pain from a previous back injury. He can do no more than two hours light duties daily.
I am suspicious of that document and I am not satisfied it is authentic, primarily because it strikes me as highly unlikely that two separately produced certificates would produce the same unusual spelling mistake. While I considered whether the sentence was cut and pasted from the earlier document, the wording of the second certificate is slightly different. So whoever prepared it has considered the exact sentence and left the unusual spelling mistake unchanged.
In any event, neither the general practitioner’s report or the certificates satisfy the formal requirements for the admission into evidence of expert medical evidence, that is, they do not comply with the Federal Court Rules 2001 (Cth) for admission of expert evidence, which essentially summarise the requirements in Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705. This requires that the factual basis for the evidence should be set out in the report. I note that the husband is currently employed as a [tradesman], although he asserts, as I have mentioned, that he has limited capacity for employment. I am not satisfied that the husband has a significantly limited capacity for work, and, indeed, the doctor’s letter does not claim that is the case.
The husband travelled to [Country A] in 2009 or 2010. Both parties agree that a relationship commenced around about then. The husband visited the wife in [Country A], and they married in a Catholic ceremony in [Country A] in … 2012. The wife spent two months in Australia on a tourist visa from about … 2013 to … 2013. The wife said in her evidence that she had a pregnancy to the husband which ended in a miscarriage in … 2013. In … 2014, she emigrated to Australia. She also brought her daughter from a previous relationship, [Y], who was then six or seven years old and is now about 11 years old.
The husband purchased the former matrimonial home at Property A in … 2012 for $365,000 according to the wife. The house is in the husband’s sole name. The wife asserted she was closely involved in the purchase but I consider her claim exaggerated as she was then living in [Country A]. It appears that significant renovations were carried out after the wife came to Australia. The wife says that she was significantly involved in the renovations, directing workmen and so on. It was not in contest that the wife’s English is limited. She used an interpreter throughout the trial and I am reluctant to accept that she played any significant role in directing or managing the renovations other than discussing and considering the plans with the husband.
The husband said that he borrowed a considerable sum of money for the renovations. His trial affidavit, affirmed on 27 February 2018, claimed that he owed a Mr P $15,000, a person called Mr Q $10,000 and a Mr R $50,000 for renovations, a total of $75,000. He also claimed to owe Mr R, in the trial affidavit, $26,300 for the hire of a vehicle for his business. More recently, yesterday, he claimed that he owed about $37,000 to Mr R.
I have considered this issue closely. The husband annexes various loan agreements to his trial affidavit in support of his claim. While they use template documents, they are all self-drafted. They do not provide for an interest. There is no evidence from the husband of any repayments having been made although he agreed in the loan agreement for Mr S to be paid regular but unspecified repayments. All the loans are unsecured, although Mr R apparently lodged a caveat over the Property A property a short time before the trial commenced in January 2018. I raised my concerns with the husband about whether these debts were genuine. I asked whether the people involved were available to give evidence. He said they were. I said that if they were not called to give evidence, I might infer that their evidence would not assist him. I said I might find the debts were not genuine.
The husband did not call these witnesses. I find that the witnesses were available and that the husband’s failure to call them is unexplained and that, accordingly, I find their evidence would not have assisted him, applying the principle in Jones v Dunkel (1959) 101 CLR 298. The other fact that should be noticed is that the husband’s financial statement of 3 August 2016, the only one filed, refers to only one debt, and that is $6,000 owed to Mr R. The financial statement was prepared by a lawyer. I find this statement is entirely inconsistent with a claimed indebtedness in the later affidavit of some $100,000. I do not accept the husband’s claim and find that his indebtedness to Mr R is $6,000, as was claimed in the financial statement.
Otherwise the property pool is largely agreed. The husband asserted that a Motor Vehicle sold, according to the husband, for $1000 was an under value. In the absence of any evidence, I do not feel I can make a finding about that issue.
I have prepared a balance sheet which I will hand to the parties now.

Item	Description	Husband	Wife	Total
Assets
1	Property A	$595,000
2	Motor Vehicle	$3,250
3	Furniture, effects, jet ski at Property A	$19,580
4	Bank savings	$1,500
Total	$616,080	$3,250	$619,330
Liabilities
5	Mr R debt	$6,000	$6,000
Net assets	$610,080	$3,250	$613,330
If 60/40	$367,998	$245,332	$613,330
Payment required to wife	($242,082)	$242,082
Superannuation
6	Husband’s Super Fund	$46,186	Nil
If 60/40	$27,712	$18,474
Splitting order in favour of wife	($18,474)	$18,474

Neither party made submissions about whether I should treat the property as two pools or a single pool but I find that the superannuation is a modest sum and similar contribution issues apply to the superannuation as to the non-superannuation property. I consider that I should treat the assets and the superannuation as a single pool.
In relation to contributions, the overwhelming financial contribution has been made by the husband. At the beginning of the relationship he owned another property at Property B, which was sold in order to purchase Property A. It is unclear from the evidence if there were any borrowings for the purchase of Property A. None are mentioned.
The shortfall of $137,000 between the sale of Property B and the purchase price of Property A was said to have been made up by the husband from his workers compensation payout and his own savings. The wife does not mention any savings brought to Australia, although she asserts she had some savings. I do not feel I can make any findings in the absence of precise information from her. I find that the wife has made significant contributions as a homemaker and mother. I also find that, as a result of family violence, her contributions have been made more difficult and onerous during the relationship.
A police file was produced on subpoena. It is clear that from about September 2014, that is, almost immediately after the wife emigrated to Australia and began living her permanently, that there were complaints and callouts to the police dealing with conflict. Intervention orders were made against the husband in 2015 and he was charged with contraventions in August and September 2015. The husband was arrested and held on remand for some five weeks in August of 2015. Ultimately the wife decided she did not want to prosecute it and he was released and returned to the family home.
I find that the parties separated on 18 May 2016 when the husband left the family home after an assault and police made an intervention order requiring his departure. The relationship lasted, I am satisfied, from the marriage in [Country A] in about … 2012 to … 2016, although the parties lived together from only about … 2014, a little less than two years. However, from the time of the marriage in … 2012 to separation in May 2016, the period is about three years and nine months.
I also take account of the fact that the husband supported the wife’s child [Y] during that period and this should be seen as a contribution by him. I also take into account that the wife has been living in the former matrimonial home alone since May 2016 and that the property has been mortgage free and she has not had to effectively pay any outgoings in respect of that accommodation. On balance, I find that the contributions are 80 per cent by the husband and 20 per cent by the wife.
Turning to section 75(2) factors. The husband is 43 years old and the wife is 38 years old. The husband works as a [tradesman] and has his own business. He said in his financial statement in 2016 that he earned $551 a week gross, although he said his taxable income was $18,327 in 2017. As I have mentioned, I do not accept that the husband has a significantly diminished capacity to earn income, particularly if he remains in sedentary work.
The wife has very limited English. Apparently she was employed as a [professional] in [Country A]. I expect once that the youngest child becomes older the wife will find employment, assuming her English improves, which I am satisfied it will. The husband pays child support in the sum of $20 a week. Apparently this is a voluntary assessment. I am satisfied it falls well short of an equitable contribution to the cost of caring for the child of the parties.
I consider that these factors merit a further adjustment in favour of the wife of $120,000 or 20 per cent of the property pool. This will result in a total split in favour of the husband of 60 per cent and 40 per cent to the wife. This equates to a payment of $242,000 to her. The husband said that he wishes to have the wife vacate the house as soon as possible. He said he was in a position to make a part payment of $25,000 to the wife immediately and on receipt she is to vacate the property. He is to pay the balance of $217,000 to her within 60 days of her doing so. If not the property is to be sold and 36.4% of the net proceeds after sale expenses is to be paid to her.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 18 December 2018

[2018] FCCA 3803

27 November 2018

Key Legal Topics

Areas of Law

Family Law

Property Law

Insolvency

Legal Concepts

Remedies

Costs

Jurisdiction

Res Judicata

Procedural Fairness