Perica & Perica (No 3)
[2023] FedCFamC2F 1669
•20 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Perica & Perica (No 3) [2023] FedCFamC2F 1669
File number(s): HBC 984 of 2021 Judgment of: JUDGE TAGLIERI Date of judgment: 20 December 2023 Catchwords: FAMILY LAW – property – 16 year relationship – where husband seeks that matter is determined on a mathematical approach – where husband brought matrimonial home into the relationship – court determined matter on a holistic approach, as required by authorities – two-pool approach – determination of a 60/40 split in favour of the husband on non-superannuation pool – determination that each party retain their own superannuation Legislation: Family Law Act 1975 (Cth) ss 4AB, 75(2), 75(2)(b), 75(2)(k), 79, 79(2), 79(4)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) pt 7.1
Duties Act 2001 (Tas) s 56
Cases cited: C & C (2005) FLC 93-220
Daultrey & Tavener [2020] FCCA 399
Finau & Finau [2018] FamCA 49
Gadhavi & Gadhavi [2023] FedCFamC1A 117
Horrigan & Horrigan [2020] FamCAFC 25
In the Marriage of Hickey 30 Fam LR 355
Jabour & Jabour [2019] FamCAFC 78
Kennon v Spry (2008) 238 CLR 366
Pierce v Pierce (1999) FLC 92-844
Sagacio & Sagacio [2019] FCCA 1111
Stanford and Stanford [2012] HCA 52
Wagstaff and Wagstaff [2018] FCCA 927
Yarrow & Yarrow [2022] FedCFamC1A 135
Division: Division 2 Family Law Number of paragraphs: 77 Date of hearing: 24 and 25 July 2023 Place: Hobart For the Applicant: In person Counsel for the Respondent: Mr McKenna Solicitor for the Respondent: Monk Lawyers ORDERS
HBC 984 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR PERICA
Applicant
AND: MS PERICA
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
20 DECEMBER 2023
THE COURT ORDERS THAT:
1.Within 60 days of these Orders, the property at C Street, Suburb D in Tasmania (“Suburb D”) be placed on the market and sold in accordance with paragraph 2 of this Order (“the Sale”).
2.The Sale will be conducted as follows:
(a)Within 21 days of the date of these Orders, the parties will appoint a real estate agent agreed between them, and in the event agreement cannot be reached, the agent will be such person nominated by the President of the Real Estate Institute of Tasmania (“the Agent”);
(b)The Respondent shall vacate Suburb D within 60 days of the date of these Orders;
(c)Following the Respondent vacating Suburb D, and pending its sale, neither party shall be permitted to occupy Suburb D as a residence;
(d)The listed sale price will be as recommended by the Agent and within 10 per cent of the agreed valuation of the property, and the method of sale and manner of advertising for sale of Suburb D will be as recommended by the Agent;
(e)The terms and conditions of sale of Suburb D, including the acceptance or rejection of any offer to purchase the property, will be in accordance with the recommendation of the Agent appointed pursuant to Order 2(a) of these Orders;
(f)The parties must sign all documents required to effect the sale, including the Agency agreement, standard contract of sale, Transfer, and other documents required by the Agent appointed pursuant to Order 2(a) of these Orders; and
(g)The parties will engage E Lawyers to act in the conveyancing of Suburb D or, in the event of a conflict of interest, an alternate firm of solicitors agreed between the parties.
3.At the completion of the Sale, the parties must do all acts and things including but not limited to signing all documents necessary to disburse the sale proceeds of the Sale as follows:
(a)In payment of usual sale and conveyancing costs including but not exclusively, real estate agent fees, legal fees in relation to the sale of the Property, bank or other financial institution fees, council and water rates and all other state and/or federal and/or local government fees, charges and/or taxes; and
(b)In payment to the parties in such sums so as to achieve a 60/40 per cent division of net non-superannuation assets in the Applicant’s favour, to be calculated in accordance with Annexure A and each party retaining the assets liabilities attributed to them.
4.The Applicant shall be solely entitled to the following items of property:
(a)All savings and investments held by him:
(b)All benefits arising from superannuation held by or for him: and
(c)All chattels in his possession.
5.The Respondent shall be solely entitled to the following items of property:
(a)The contents of Suburb D;
(b)All savings and investments held by her;
(c)All chattels owned by her or in her possession;
(d)All benefits arising from superannuation held by or for her; and
(e)Her interest the estate of her late father, Mr F.
6.In default of the parties or either of them doing all acts and things and executing all such documents as are necessary to give effect to these Orders, a Registrar of the Federal Circuit and Family Court of Australia be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute all such documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to the said orders.
7.The Applicant and Respondent are to complete and sign all necessary documents required to make application to the Commissioner of Stamp Duties to seek reimbursement of the sum of $15,000 paid by Applicant as stamp duty on the transfer dated early 2019 relating to Suburb D.
8.In the event that a reimbursement is made pursuant to the application referred to in Order 7 of these Orders, it is to be paid solely to the Applicant.
9.The question of the Applicant’s costs is reserved on the condition that any application for costs is filed within 28 days of the date of these Orders.
10.In respect for the Contempt Application filed 25 May 2023 and the Application for Final Orders filed 20 September 2021, the parties’ costs are reserved on the condition that any application for costs in either application is filed within 28 days of the date of these Orders.
“ANNEXURE A”
ASSETS Description Ownership Value Suburb D To be divided To be sold Motor Vehicle 1 Husband $1,000 ANZ Account No …77 Husband $1,373 ANZ Account No …09 Husband $2,546 ANZ Account No …99 Wife $5,460 ANZ Online Saver Account No …01 Wife $8,236 Motor Vehicle 2 Wife $1,500 Household Contents Husband $600 Household Contents Wife $2,500 LIABILITIES HECS Debt Wife $3,791 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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
These are property proceedings brought pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). By their application and response, each party sought orders for adjustment of the parties’ property interests.
The parties commenced cohabitation in 1999, were married in 2003, separated on 18 November 2015, and divorced in late 2020. The Applicant Mr Perica (“the Applicant”) is now 63 years of age and the Respondent Ms Perica (“the Respondent”) will shortly be 51 years of age.
The defended hearing in respect of the parties’ respective cases proceeded on 24 and 25 July 2023. The Applicant represented himself and the Respondent was represented by Counsel, Mr McKenna.
THE LAW
The relevant statutory provisions and legal principles which govern proceedings for property adjustment under the Act are not contentious and are well-established.
The ultimate objective and task of the Court is to make a determination as to whether it should make orders adjusting property interests on the basis of what is just and equitable. Considerable guidance has been given by various authorities, but for present purposes it is sufficient to note the useful summary provided by Judge Reithmuller in Wagstaff and Wagstaff [2018] FCCA 927 (“Wagstaff”) from [118] to [137], referring to Stanford and Stanford [2012] HCA 52 (“Stanford”) and In the Marriage of Hickey 30 Fam LR 355 (“Hickey”).
In adopting the approach referred to in Stanford, I find that the parties were in a relationship of 16 years, and after separation continued to cohabit until the Applicant left the home in mid- 2018. Each party seeks orders to adjust their joint and respective interests in property and I am satisfied that it is in all the circumstances just and equitable to make orders pursuant to s 79 of the Act for the reasons expanded on below.
It is also necessary to take the well-known four step approach explained in Hickey and summarised in Wagstaff, being to:
(a)Identify the assets and the value of the assets in the property pool;
(b)Determine the contributions made by each of the parties to those assets, both directly and indirectly and in financial and non-financial terms;
(c)Determine whether any adjustment is required for s 75(2) factors; and
(d)In light of those findings, determine what orders for the division of property is just and equitable.
MATERIALS AND EVIDENCE RELIED ON
The parties respectively relied on and read or tendered several documents into evidence. The Applicant filed a case outline on 17 July 2023. I have taken the submissions in the outline into account, but where the Applicant has referred to documents that were not tendered or expressly referred to during the hearing, I have not considered them. This is because I explained to the Applicant at the start of the defended hearing that documents to which he had referred in the case outline were not automatically received as evidence and he would need to tender them if he intended to rely on them. The Applicant confirmed he had understood this.
The Applicant relied on the following, which were taken into evidence:
·His affidavit filed 3 July 2023;[1]
·Exhibit A-1: Procedural fairness documents in respect of the Respondent’s superannuation fund;
·Exhibit A-2: Emails exchanged between the parties dated 24 March 2018 to 6 April 2018;
·Exhibit A-3: Affidavit of the Respondent filed 2 November 2022;
·Exhibit A-4: Financial Statement of the Applicant filed 17 July 2023;
·Exhibit A-5: Respondent’s health care qualifications issued in 2011; and
·Exhibit A-6: Letter authored by the Respondent’s psychiatrist Dr G, dated 14 May 2023.
[1] Noting that [264] of this affidavit in respect of financial exploitation of children was struck out as scandalous.
The Respondent relied on the following:
·Her affidavit filed 10 July 2023, as amended and tendered into evidence as Exhibit R-3;
·Her Financial Statement filed 13 July 2023;
·Her case outline filed 18 July 2023;
·Exhibit R-1: Title search for CT Volume … Folio … showing a transfer to the Respondent in early 2019;
·Exhibit R-2: Typewritten note by the Applicant titled ‘What should [the Respondent] Correct’ dated 2005, which may or may not have been provided to the Respondent at the time it was created;
·Exhibit R-3: Affidavit of the Respondent initially filed 13 July 2023 as amended by strikeouts marked up on a copy of that affidavit;
·Exhibit R-4: Application for Letters of Administration dated 30 June 2023 concerning the intestate estate of Mr F (nine pages consisting of the application, an affidavit, and an inventory); and
·Exhibit R-5: Financial Statement of the Respondent filed 17 July 2023.
Further, three documents were marked for identification, being:
·MFI-1: Spreadsheet of Centrelink benefit payments received by the parties;
·MFI-2: Schedule depicting outcome sought by the Respondent on a one-pool approach, produced to the Court during the Respondent’s closing submissions; and
·MFI-3: Spreadsheet created by the Applicant containing calculations in support of his closing submissions.
MFI-2 and MFI-3 are not evidence of a fact or event, but part of the parties’ submissions and have been treated accordingly. MFI-1 was in part the subject of cross-examination of the Respondent. She neither admitted nor denied the accuracy of the record. Her Counsel seemed to accept that the record was provided to the Applicant by Centrelink. To the extent that it records an agreed fact, namely that both parties received Centrelink benefits throughout the relationship, it adds little to the task of the Court. The Applicant seems to rely on it in a mathematical exercise to evaluate the respective benefits each party received or to prove an assertion about the Respondent’s use of Family Tax Benefit. To this end, they are not particularly relevant because of established principles that the Court must apply and are discussed in the reasons below.
The admitted evidence of each party is extensive, detailed and addresses the following topics:
(a)Their contributions, both financial and non-financial;
(b)Their mental and physical health difficulties through the relationship;
(c)Allegations by the Applicant of the Respondent’s failings as a parent, wife, and homemaker/housekeeper;
(d)Allegations by the Respondent that the Applicant was responsible for her poor mental health and depression;
(e)Allegations by the Applicant that the Respondent was the cause of his mental health difficulties and has caused wrongs and hurt;
(f)Their respective qualifications, employment, earnings at various times in the relationship, and their capacity to earn in the future; and
(g)The receipt of Centrelink benefits by each of them during the relationship and since.
The evidence presents a markedly conflicting narrative. However, regardless of which account is objectively more accurate or preferred I am satisfied that the parties were in dispute about their relationship, family issues and values, and running of the household for many years before they separated.[2]
[2] For example, emails exchanged and marked as Exhibit A-2 and Exhibit R-2.
Each party was cross-examined and their evidence demonstrated that there was agreement about many facts and considerations of which the Court must have regard.[3]
[3] Pursuant to s 79(2) and (4) of the Act, and s 75(2) of the Act.
The Applicant’s Evidence Under Cross-Examination
The Applicant agreed that he had left the former matrimonial home (“FMH”) in mid-2018 after the parties separated in November 2015, and did not return to the FMH except pursuant to court order. He agreed that he continued to reside in Victoria until early 2020 and that between mid-2018 and early 2020 the children lived with the Respondent in the FMH.
The Applicant disagreed that the Respondent was solely responsible for the day-to-day care of the children post-separation. He clarified that he provided child support, that two of the children visited him weekly, and that he and the children spoke daily by phone. He agreed that the Respondent paid for the school education.
The Applicant agreed that:[4]
[4] Transcript of proceedings (“Transcript”) dated 24 July 2023 on pages 28 to 31.
(a)Each party brought different qualities and skills to the relationship;
(b)All of the Applicant’s income derived between 1999 and 2006 was applied to the benefit of the relationship, but that in the second part of 2003 he was not working and had taken time off to support the Respondent who was completing study;
(c)The Respondent earned income from H Company, which he described as “fringe benefits” and the family had the benefit of food;
(d)From 2006 to mid-2012, the sole source of income for the household was from Centrelink benefits, which was applied to the benefit of the family;
(e)From 2012, the Respondent was the sole income earner;
(f)As a family of five, the household chores should be divided approximately in fifths;
(g)The Applicant sent an email in 2017 saying he was stopping doing all the chores and would only do one fifth.[5] Further, that the distribution of chores around the home was a source of disagreement and that the Respondent did the children’s share of the work;
[5] Transcript dated 24 July 2023 on page 30.
(h)The Respondent replaced rotting deck boards at the FMH without consulting him, and it took six months to do;
(i)Both parties sanded floorboards in the FMH, but he did the cleaning and varnishing of them;
(j)Stairs were installed in the FMH by the Respondent after he had left, but that they were dangerous and contrary to building regulations;
(k)The value of $100,000 he attributed to the real property and house on it, which he brought into the relationship, was just an estimate. However, he mentioned a real estate agent giving a figure of $60,000 at the time the parties commenced their relationship;
(l)After he left the FMH in 2018, the Respondent solely paid for the utilities relating to the property and most household expenses for the children until they moved out.[6] He paid for shoes and haircuts for the child X;
(m)He received an inheritance of about $35,000 in around 2017. About $27,000 of this had been distributed to the benefit of the children, with about $5,000 remaining in the Applicant’s bank account;
(n)Up until the Applicant left the FMH in 2018, the parties had a shared but not equal role in caring for the children. He claimed that he did more of the education and activities away from the home with the children, and disputed that the Respondent did housework when they were away;[7]
(o)The parties together took the children on family outings;[8]
(p)The Respondent had experienced poor mental health during the relationship;[9]
(q)He is a fairly precise person most of the time and detail is important to him in some instances, but he did not have a particular way of having things done;[10] and
(r)He corrected the Respondent often about matters around the house and he accepted that the Respondent perceived it as criticism, but from his perspective he was being very specific about things to be done and he was frustrated that the Respondent did not cooperate.[11]
[6] Transcript dated 24 July 2023 on page 34.
[7] Transcript dated 24 July 2023 on page 37.
[8] Transcript dated 24 July 2023 on page 44.
[9] Transcript dated 24 July 2023 on page 49.
[10] Transcript dated 24 July 2023 on page 57.
[11] Transcript dated 24 July 2023 on pages 57 to 58.
The Applicant disagreed with the suggestion that both parties equally contributed to the handyman work on the house. He described the Respondent’s efforts as negligible, and he was maintaining the house “pretty much around the clock”.[12] When pressed about his state of mind in 2000, he conceded he was not working around the clock, but maintained he was working much more than the Respondent.
[12] Transcript dated 24 July 2023 on page 29 from line 43.
In substance, although making the admissions referred to at [19] of these reasons, the Applicant maintained that the Respondent did not use her best endeavours to create a home environment and contribute to the handyman work on the home.[13] He described her contribution as “minor”.
[13] Transcript dated 24 July 2023 on page 32.
Concerning Centrelink benefits received between 2006 and 2012, the Applicant received the payments on the basis that he was the Respondent’s carer as she was mentally ill, and at times because the children were being home educated.
The Applicant was cross-examined about his statement in his affidavit at [263], but the relevance of the statement and the evidence given in cross-examination is marginal, in my view, to the issues of importance in this case.
The Applicant denied that the Respondent did the majority of the work around the home and with the children in around 2007, when he was depressed, comfort eating and resting in the armchair for hours.
The Applicant was also shown the document tendered as Exhibit R-3 and conceded that he had referred to correcting the Respondent and referring to her ego and the competition between them in the household.[14]
[14] Transcript dated 24 July 2023 on page 6; Exhibit R-2.
Applicant’s evidence as to contributions
There was major dispute about the parties’ contributions to the acquisition, improvement, or maintenance of the assets of the marriage.
The underlying theme of the Applicant’s evidence and submissions about contributions involved what he admitted was criticism of the usual global or holistic approach to assessing contributions, and he emphasised that a mathematical approach was preferrable and necessary to do justice and equity between the parties.
The Applicant then presented his case on contributions, saying he had done what has virtually never been done and mathematically calculated each party’s contributions. He sought to tender a document he had prepared and that had been certified by an accountant, Mr K.[15]
[15] Applicant’s Court Book filed 21 July 2023 at pages 143 to 158.
Tender of the document referred to at [27] of these reasons was opposed. After hearing submissions, I made a ruling that the document was inadmissible essentially because:
(a)The certification of the accounting process contained in the document amounts to expert evidence where there had been no prior indication that the Applicant would rely on expert evidence and no compliance with Part 7.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) in respect of appointment of an expert or the form of the evidence that the expert would give; and
(b)The certification on the document by Mr K contains a statement that he cannot certify the validity of the source numbers in the document, only the validity of the accounting processes employed. The validity of the source numbers is important in establishing the relative contributions of the parties in these proceedings, and so the document cannot assist the Court in this task.
The Respondent’s evidence under cross-examination
The Respondent made the following relevant concessions:
(a)The parties’ son Mr L lived mostly away from the FMH from 2019, then returned in 2022;[16]
[16] Transcript dated 25 July 2023 on page 103.
(b)She did not communicate with the Applicant about the exemption from paying stamp duty on the transfer of the FMH to her in 2019, but understood that her former lawyers J Lawyers had done so;[17]
(c)The building inspection report of Mr M did not say that the FMH had been poorly built, but refers to structural failure of foundations;[18]
(d)The parties had agreed in 2017 that they would share the expenses relating to the children’s school tuition and other fees;[19]
(e)A cookbook of recipes produced in Court by the Applicant was compiled in the handwriting of the Applicant and of the children N and X. She herself rarely used the recipes to cook, but the book was well used;[20]
(f)The Applicant only stopped helping with moving and chopping firewood after he sustained an injury in 2017;[21]
(g)Rarely, the Applicant also assisted the child X with music lessons and practice;[22]
(h)She accepted that the Applicant put insulation on the walls at the FMH before installing cladding;[23]
(i)The parties were sharing expenses at the time of the email of 17 December 2021, but that did not constitute parenting the child N, except in respect of shopping for his food;[24]
(j)The Applicant wrote a home-school timetable for the children month by month which indicated what lessons were to be conducted by the Applicant and Respondent respectively. She agreed that the Applicant undertook more of the home schooling, but not much more. She stated that the timetable reflected the plan, but not necessarily what happened in practice;[25] and
(k)The Applicant arranged the recording of a CD of the music played by the family.[26]
[17] Transcript dated 25 July 2023 on page 104.
[18] Respondent’s Court Book at pages 101 to 103.
[19] Transcript dated 25 July 2023 on page 111.
[20] Affidavit of the Applicant filed 3 July 2023 at Annexure 8.
[21] Transcript dated 25 July 2023 on page 114.
[22] Transcript dated 25 July 2023 on page 114.
[23] Transcript dated 25 July 2023 on page 117.
[24] Transcript dated 25 July 2023 on page 121.
[25] Transcript dated 25 July 2023 on page 124.
[26] Transcript dated 25 July 2023 on page 125.
COMPETING CONTENTIONS
Counsel for the Respondent submitted that during the relationship each party worked as hard as the other. They contributed both financially and physically to the maximum extent that they each individually could, using their respective skills, abilities, and the qualities that they brought to their family unit.
I was invited to make the following findings about contributions:
(a)From cohabitation in 1999 to 2006, the Applicant undertook part-time employment;
(b)From cohabitation to 2006, the Respondent was working a day week at the H Company and she brought home an important contribution in the form of food for the family;
(c)From about 2006 to 2012, the sole source of income to the family was Centrelink payments, and those payments were received by both parties;
(d)From 2012, the Respondent was the sole income earner for the household and applied her income to the benefit of their family and to their property. For example, it funded maintenance around the property and trying to keep the home as they intended for each of them and for their children;
(e)The parties were very much a marriage partnership and each party was devoted to their family;
(f)In 2013 or 2014, the Respondent received about $5,000 from her mother and after separation the Applicant received an inheritance of $35,000. The evidence is that these sums were used for the benefit of the children or gifted to them;
(g)There was equality in relation to non-financial and homemaker contributions, and the parties worked together as best they could and contributed as best they could;
(h)After the parties separated, the Respondent was the primary carer of the children and this carries weight as a contribution, perhaps five per cent. Namely, she was applying her income to the children’s education and, at different points in time, they were living in the household, and she was there providing food, paying the utilities, rates and outgoings on the property; and
(i)The Respondent will receive an inheritance from her late father, being a one-half share in the net value of his intestate estate.
Counsel for the Respondent indicated that an amended case outline was relied upon and the Kennon[27] adjustment was not pursued.[28] As a consequence, on 24 July 2023 I ordered that the Respondent produce a redacted affidavit indicating by strike out the evidence on which she no longer relied. This amended affidavit was received into evidence as Exhibit R-3.
[27] Kennon v Spry (2008) 238 CLR 366.
[28] Transcript dated 24 July 2023 on page 65.
There was agreement about the identification of the assets and values of assets, liabilities and resources of the parties. By consent, a joint balance sheet was tendered and received as Exhibit J-1.
Counsel for the Respondent properly submitted that there was an age differential between the parties, and that the Applicant was dependent on Centrelink and had not worked since 2006 while the Respondent is in employment as a health care worker.
Concerning the inheritance the Respondent will receive, it was submitted that its value was about $280,000, that it arose post-separation, and should be treated as a resource. A proper concession was made that it was a consideration pursuant to s 75(2) of the Act for adjustment in favour of the Applicant of no more than five per cent.
Regarding the $15,000 stamp duty paid on the transfer of the FMH in 2019, Counsel for the Respondent submitted that the relief from payment of stamp duty is not applicable because the transfer did not occur pursuant to an agreement or court order before the transfer was made.[29] He invited the Court to make an order requiring the parties to make an application for a refund to the relevant state Commissioner for Stamp Duty, which refund be paid to the Applicant as he paid the duty.
[29] A requirement of s 56 of the Duties Act 2001 (Tas).
Counsel for the Respondent clarified that contributions should be assessed as 55 per cent in favour of the Respondent and 45 per cent to the Applicant, and that a five per cent adjustment to the Applicant for differences between the parties’ ages, employment and earning capacities was in range pursuant to s 75(2) of the Act. This would result in a final adjustment of the parties’ interests equally,[30] in circumstances where Counsel for the Respondent clearly abandoned any claim for adjustment in favour of the Respondent based on Kennon principles.[31] However, I raised the issue of the inheritance the Respondent would receive and Counsel conceded that this may warrant a further adjustment in favour of the Applicant of up to five per cent.[32]
[30] Transcript dated 25 July 2023 on page 132 at line 18 to page 133 at line 43.
[31] Transcript dated 24 July 2023 on page 65 at line 31 to 32.
[32] Transcript dated 25 July 2023 on page 132 at line 33.
After hearing the closing submissions from Counsel for the Respondent and noting the schedule received as MFI-2 as part of those submissions, the Applicant submitted that he wanted the case decided mathematically and that the end result of that, as it so happened, according to him was that he would receive the vast majority of the net value of assets in the matrimonial pool.[33]
[33] Transcript dated 25 July 2023 on page 145 at line 36 to page 146.
I explained to the Applicant that the Court had to administer the law pursuant to the provisions of the Act and case authorities about the required approach, not a mathematical exercise. I invited the Applicant to make submissions about an alternate approach to a mathematical one, but ultimately he declined.[34]
[34] Transcript dated 25 July 2023 on page 153 at lines 14 to 15.
Consequently, I clarified that I would have regard to the submissions in his case outline filed 17 July 2023, as well as his oral submissions about mathematical assessment of contributions. I also received as MFI-3 a document which I had declined to receive as evidence, which purported to be a mathematical assessment that the Applicant said should apply.
METHOD/APPROACH OF THE APPLICANT
The overall division sought by the Applicant is detailed in his case outline and he submits the Court should make orders for a division of the agreed net assets of 126.98 per cent to him and -26.98 per cent to the Respondent.
To achieve the above division, the Applicant proposes that the Court order that the FMH be transferred to him and that superannuation split orders in his favour be made for 100 per cent of each of the Respondent’s superannuation funds.
It appears from proposed orders 12 and 13 that the Applicant also seeks a cash payment to be paid within 14 days and in default to be paid from the Respondent’s father’s estate. It appears that by this he treats the Respondent’s interest in her father’s intestate estate as an asset, despite it being agreed in the joint balance sheet as a resource.
The Applicant also seeks various costs orders which I do not propose to address as I indicated that formal costs applications should be made and determined after delivery of this substantive judgment.
It can be understood from the Applicant’s case outline that he submits the Court should adopt essentially a two-step process. That is:
·Step 1: assess contributions, which he says are 63.39 per cent and 36.61 per cent for the Applicant and Respondent respectively; then
·Step 2: he argues that six adjustments are to be made, five of which are in his favour and one in the Respondent’s favour. He submits that this leads to an overall division of 126.98 per cent division to him and -26.98 per cent division to the Respondent.
The document received as MFI-3 as a submission has been considered to try to assist in understanding the Applicant’s submissions and if there is some logic to them. Frankly, they do not assist for many reasons, some of which are:
(a)They attribute values to contributions based on evidence not before the Court. For example, the document lists days or hours attributed to certain activities which are then multiplied by hourly rates, but the number of hours and the rates are not the subject of probative evidence. Instead, it relies on statistics or an estimate or appraisal made by the Applicant about which he did not give evidence;
(b)They apportioned contributions on the basis of a moral agreement into which he claimed the parties entered about their approach to the relationship, with which he asserts the Respondent did not comply. For example, the Respondent is only attributed 20 per cent for housework because he says that she should only have done one fifth and not more;
(c)In some cases, the Applicant uses commercial rates in the United States to value the contribution of a task, when there is no rational relationship between those rates and Australia or the nature of the assessment of contributions in proceedings pursuant to s 79 of the Act;
(d)They treat differences of opinion about what should be expended on education of the children as a negative or wasteful contribution;
(e)They purport to create a post-separation rent debt owed by the Respondent to the Applicant calculated in commercial terms, and which simply is inappropriate in circumstances where one party leaves the matrimonial home at separation; and
(f)They make an adjustment for the Respondent “disallowing” the Applicant from maintaining the house when this was not put to the Respondent, and in any event the probative evidence is that the parties each did some work on the house and when they did not there were reasons for this.
Underlying all the difficulties identified at [46] of these reasons is the Applicant’s insistence that contributions and adjustments required should be mathematically assessed. This is plainly against all established principles, and I reject the approach.[35]
[35] Jabour & Jabour [2019] FamCAFC 78; Horrigan & Horrigan [2020] FamCAFC 25 at [35]; Yarrow & Yarrow [2022] FedCFamC1A 135 at [43].
While the Applicant claimed that a mathematical approach such as the one he proposed would promote predictability of outcomes and lead to justice, I consider it would do the opposite and extend the length of trials and increase costs. It can readily be envisaged that it would:
·Lead to factual disputes between parties about what precise number of hours were devoted to particular tasks when, over a long period, that is impossible to accurately recall, and the parties would simply be guessing unless detailed records were kept;
·Create disputes about what data or measures should be applied to the value of a task or activity, when different activities are valued in different ways but in the context of property proceedings, the authorities repeatedly have held that financial contribution as a bread-winner and non-financial contributions as homemaker are comparable;[36] and
·Invariably require expert evidence about the valuation methods and calculations.
[36] Jabour & Jabour [2019] FamCAFC 78; Horrigan & Horrigan [2020] FamCAFC 25; Pierce v Pierce (1999) FLC 92-844.
EVALUATION OF EVIDENCE AND RELEVANT FINDINGS
I will approach the Court’s task according to the law set out at [4] to [7] of these reasons.
It is very apparent that the Applicant sees his contributions through a subjective lens swayed by his personal experience and grievance about the relationship. The Applicant presented his case and evidence in a perhaps understandably emotive and dramatic manner reflective of his affront to the Respondent and the children no longer conforming to his personal values and beliefs. Further, also because he felt that he was forced to leave the FMH due to what he described as false reports to the police of family violence.[37] However, the Applicant himself concedes to slapping the Respondent[38] and raising his voice out of frustration from what he regarded to be non-cooperation or compliance with his expectations.[39]
[37] Transcript dated 24 July 2023 on page 45 at lines 16 to 20.
[38] Affidavit of the Applicant filed 3 July 2023 at [71].
[39] Transcript dated 24 July 2023 on page 58 at line 43 to page 59 at line 21.
I consider that each party did their best to give evidence according to honestly held beliefs, but the relevant factual findings and determinations in this case can largely be made on the basis of undisputed evidence. No submission was made that the Applicant perpetrated family violence, despite references to alleged family violence in around 2007 and shortly before the Applicant left for Melbourne in 2018. In those circumstances, I have not been persuaded on the balance of probabilities of family violence and it being a factor to take into account.
The parties agree that the relevant assets, liabilities and resources are those identified in Exhibit J-1. I find that they are as follows:
ASSETS Description Ownership Value The FMH Wife $625,000 Motor Vehicle 1 Husband $1,000 ANZ Account No …77 Husband $1,373 ANZ Account No …09 Husband $2,546 ANZ Account No …99 Wife $5,460 ANZ Online Saver Account No …01 Wife $8,236 Motor Vehicle 2 Wife $1,500 Household Contents Husband $600 Household Contents Wife $2,500 Assets Subtotal $648,215 LIABILITIES HECS Debt Wife $3,791 Liabilities Subtotal $3,791 SUPERANNUATION Super Fund 1 Husband $171,462 Super Fund 2 Wife $71,770 Super Fund 3 Wife $15,765 Superannuation Subtotal $258,927[40] TOTAL NET ASSETS $644,424 TOTAL NET ASSETS INC SUPERANNUATION $903,351[41] FINANCIAL RESOURCES Wife’s anticipated inheritance Wife $280,000 Motor Vehicle 3 Wife $2,000 Financial Resource Subtotal $280,000[42] [40] This appears to be a calculation error in Exhibit J-1.
[41] This appears to be a calculation error in Exhibit J-1.
[42] This appears to be a calculation error in Exhibit J-1.
Because evidence was not challenged or the parties’ evidence was largely consistent, I make the following findings about financial and non-financial contributions:
(a)At commencement of cohabitation, the Applicant brought into the relationship the land and incomplete home at the FMH, which is now valued at $625,000;
(b)The Applicant received an inheritance of $35,000 during the relationship, which was applied to the benefit of the children and $5,000 remains in his ANZ Bank account;
(c)The Respondent received $5,000 from her late mother, which was applied to the benefit of the family;
(d)Both parties made some non-financial contributions to the improvement, finishing and maintenance of the FMH, but the parties dispute their respective claimed contributions of this nature;
(e)Both parties made contributions to homemaking, housework, and child caring/parenting contributions, but the parties dispute their respective claimed contributions of this nature;
(f)The Applicant was the primary income earner until 2006 and contributed his income to the benefit of the family and expenditure required for them;
(g)The Respondent likely contributed slightly more by way of hands-on caring for the children when they were very young, but parenting and caring was otherwise similarly shared;
(h)From 2012 until separation, the Respondent was the primary income earner and contributed her income to the benefit of the family and expenditure required for them;
(i)Between 2006 and 2012, the parties relied on Centrelink benefits that were applied to the benefit of the family and expenditure required for them;
(j)Between 2000 and 2006, the Respondent worked at H Company on weekends and contributed food and produce to the family household, which was an important contribution but one which is not amenable to quantification;
(k)After the Applicant left the FMH in 2018, the Respondent was physically present and provided for the children who remained living in the home, but the Applicant contributed also and remained involved in their development and parenting to the extent he could from afar. However, it is to be noted that the older two children were generally not present in the FMH from early 2020 to 2022;
(l)Each party experienced periods of poor mental health during the relationship, which impacted to a degree on their ability to make non-financial contributions and work for income; and
(m)The Applicant assisted the Respondent with study to attain her health care qualification and this contribution is also important but cannot and should not be quantified mathematically.
As to the dispute about contributions to the finishing, improvement and maintenance of the FMH, the nature and state of the evidence does not allow the Court to be persuaded that one party clearly contributed more and, holistically assessed, I consider these should be assessed as equal.
In addition to the above findings, I make the following findings relevant to considerations under s 75(2) of the Act as the evidence was agreed or not controversial:
(a)The parties cohabited for a period of about 18 years between 1999 and 2018, with some short durations of separation during this time. The parties “separated” in 2015, but continued to cohabit as a family unit until the Applicant left the home and did not return in 2018;
(b)The Applicant is 63 years of age and the Respondent is almost 51 years old, a significant disparity; and
(c)The Respondent is to receive an inheritance from her late father’s intestacy at some unknown point in the future, the value of which is agreed as $280,000. Further, the Respondent is likely to receive the Motor Vehicle 4 which she is using and forms part of the intestate estate.
DETERMINATIONS
Noting the findings at [54] and [55] of these reasons, the Applicant in my assessment made greater initial financial contribution due to bringing in the FMH into the relationship, which I assess warrants some allowance in favour of the Applicant. The contribution by the Applicant of the FMH is important because it now represents the largest non-superannuation asset in the pool and in my view cannot be ignored.[43]
[43] Gadhavi & Gadhavi [2023] FedCFamC1A 117.
In a holistic assessment, which is required, the contribution of the FMH might ordinarily be regarded as eroded by other contributions made by the Respondent over the course of the long relationship.[44] However, in this case, despite what was put to the Applicant about gendered attitudes, the parties’ marriage was not delineated in the typical way as “breadwinner” or “homemaker”. Instead, the parties adopted each respective role at different times and for many years they were all dependent on Centrelink, and both made what I regard to be similar non-financial contributions.
[44] Jabour & Jabour [2019] FamCAFC 78.
Further, recurring income contributions from the parties’ employment or Centrelink income at various times likely evened out over the length of the marriage.
The parties’ non-financial contributions likely varied somewhat over time depending on if they were in employment or more available around the home to do repairs and care for or educate the children. However, over the length of the marriage, I consider they were generally equal, particularly because they each experienced periods of poor mental health.
The contributions of $27,000 and $5,000 by Applicant and Respondent respectively from inheritances were generally applied to the benefit of the children, and not applied to the acquisition or improvement of assets. In these circumstances they are of minimal relevance especially because the parties agreed that they were applied to the benefit of the children. I consider holistically they do not require any adjustment to be made.
I accept that the mother of the Applicant and father of the Respondent each assisted the parties in the way that parents help adult children to assist them when they have their own children. The respective parental contributions can be treated as roughly equal and do not warrant a particular adjustment for a party.
I have accepted that the Respondent made somewhat greater financial and non-financial contributions to the care, support and parenting of the children for a limited time post separation. But as stated at [53(k)] of these reasons, this warrants marginal adjustment due to the children’s ages and the Applicant’s continued involvement with some of the children.
Counsel for the Respondent properly conceded that the evidence before the Court warranted adjustment for s 75(2) factors. I agree. In particular:
(a)The duration of the marriage and cohabitation was long, approaching 20 years;[45]
(b)The age disparity between the parties and the Applicant’s medical condition[46] should be considered and warrants allowance in favour of the Applicant.[47] The Respondent’s mental health appears to be much improved, and she has gone on to acquire a health care qualification and employment as a health care worker;[48]
(c)The Applicant is dependent on social security benefits and unlikely to work again. He has been out of the workforce since 2006 and it is difficult to envisage who would employ him at his age and with no recent work experience or record;[49] and
(d)Each party has superannuation, but the Applicant’s interest is valued at two times that held by the Respondent.[50]
[45] Section 75(2)(k) of the Act.
[46] Affidavit of the Applicant filed 3 July 2023 at [91]; Transcript dated 25 July 2023 on page 114 at lines 10 to 15.
[47] Section 75(2)(a) of the Act.
[48] Affidavit of the Respondent filed 10 July 2023 at [21], [31] and [72]; Exhibit A-5.
[49] Section 75(2)(b) of the Act.
[50] Exhibit J-1.
For the factors identified at [63] of these reasons, there should be a five per cent allowance in favour of the Applicant, and I accept the submission of Counsel for the Respondent as to this.
I also address the s 75(2) considerations which in my view do not justify any adjustments or allowances. They are:
·Other than the property identified in the findings at [52] of these reasons, there is no other property except for the car in the possession of the Respondent, which may be property of the Respondent in due course. Although she will likely retain and own this in time, it has not yet passed to her and if it does, its value is negligible;[51]
·There are no children under 18 years of age;
·Neither party has an obligation to support any other person and there is no evidence that either has re-partnered;
·Each party has in the past had, and still has, what I would describe as a modest standard of living. It can be reasonably expected that once final orders are made, each party will receive sufficient assets or funds from the sale of the FMH to continue a similar standard of living;
·There are no binding financial agreements between the parties and the document described as a “pre-nuptial agreement” was a document which appeared to set out the parties’ expectations of family relationships at the time;
·The Applicant paid child support and additional expenses relating to the children as required, although this was a modest sum and commensurate to his limited income;
·The Applicant’s interactions with the Respondent as admitted by him do fall within the meaning of family violence as it is defined under s 4AB of the Act. However, as I commented during the hearing, it transpires that these parties’ family values, parenting and homemaking styles diverged markedly which led to disagreements.[52] The Applicant lost control on one occasion and his communication style at times demeaned the Respondent and the children. The effect of this was the irretrievable breakdown of his relations with the Respondent and the children. However, I am not satisfied this warrants a particular allowance or adjustment based on a finding of family violence.
·Although there was cross-examination about the Applicant’s transfer of the FMH to the Respondent in 2019 and the liability to pay $15,000 for stamp duty, no submission was made about this warranting an adjustment and instead the Respondent’s Counsel made the submission at [36] of these reasons. I consider it is reasonable to make an order as he suggests, although there may be no positive outcome.
[51] Agreed at $2,000.
[52] Transcript dated 24 July 2023 on page 63 at lines 30 to 36.
The parties’ submissions were unhelpful about whether this was a case that should follow a one-pool or two-pool approach. There is no evidence about the value of the Applicant’s superannuation when the parties’ relationship commenced. However, the evidence leads to the inference that the Applicant had considerably greater superannuation due his age and years of employment at that time. In contrast, I infer that the Respondent would have had no or modest superannuation given her employment history and age.
The Respondent will continue to receive employer-made contributions to her superannuation, whereas the Applicant’s superannuation will not increase. This, together with the fact that neither party would have accumulated much superannuation in the period 2006 to 2012 because their sole income was receipt of Centrelink, is a sound basis for no or very small adjustment of the parties’ superannuation interests.
The findings and reasons at [67] and [68] justify a two-pool approach to assets. This is consistent with the views of the majority in C & C (2005) FLC 93-220 and is within the discretion of the Court.[53]
[53] C & C (2005) FLC 93-220 at [65(b)].
Also of relevance is the fact that the Respondent will receive a significant sum from her father’s estate due to his death post-separation. Although it is currently agreed to have a value of $280,000, it is unlikely that she will receive that amount given that some legal costs are likely to be deducted.[54] However, it is a resource that warrants adjustment in favour of the Applicant.[55]
[54] Affidavit of the Respondent filed 10 July 2023 at [47] to [49].
[55] Section 75(2)(b) of the Act.
The Court’s findings and reasoning about financial and non-financial contributions warrant adjustment of the net non-superannuation pool of assets on the basis of 52 per cent to the Applicant and 48 per cent to the Respondent on a holistic approach.[56]
[56] [52] to [63] of these reasons.
In addition, there will be 5 per cent adjustment for s 75(2) considerations as explained at [65] and [66], resulting in a division of the net non-superannuation assets on a 57 per cent and 43 per cent basis in favour of the Applicant.
I also take into account the inheritance the Respondent will receive in the future as it is a financial resource to her. Counsel submitted that an allowance of up to 5 per cent was appropriate, and I consider 3 per cent is just and appropriate because it is likely that the amount received by the Respondent will be less than that shown in the Agreed Balance Sheet due to a legal dispute in court with her brother as to the intestate estate.[57]
[57] Affidavit of the Respondent filed 10 July 2023 at [47] to [50].
The reasoning and conclusions at [65] to [72] result in a 60/40 per cent adjustment of the net non-superannuation assets in favour of the Applicant. The agreed net value of the non-superannuation assets is $644,424, meaning that the Applicant should receive $386,654 rounded and the Respondent $257,770 based on the agreed net non-superannuation asset values in the Exhibit J-1. On the basis that the parties are to each retain their own superannuation, as no adjustment of them is warranted, the Applicant will receive equivalent of $558,116 and the Respondent $345,305 on the basis of the findings at [52] and assuming a party retained the FMH or, if it sold, the net proceeds of sale were $625,000 which is unlikely.
The conclusion at [73] reflects about 61.8/38.2 per cent adjustment in favour of the Applicant if a one-pool approach were to be used. However, in dollar terms the difference is less than $20,000, if a 60/40 per cent adjustment were used on a one-pool approach including all assets.
This outcome in my view is just and equitable in all the circumstances based on the findings and reasons above. It will necessitate the FMH being sold as neither party adduced any evidence demonstrating capacity to borrow the amount needed to payout the other party.[58]
[58] Daultrey & Tavener [2020] FCCA 399; Finau & Finau [2018] FamCA 49; Sagacio & Sagacio [2019] FCCA 1111.
Further, the sale of the FMH will provide each party with a cash sum from the proceeds of sale of the FMH and leave each party with some superannuation, which respectively is commensurate to their stage in life and future working years.
No specific submissions were made about the precise terms of the orders the Court should make if it were to order a sale of the FMH. Accordingly, I will need to briefly hear from the parties as to the draft proposed orders which will be circulated at judgment delivery.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 20 December 2023
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