Pikari & Arona
[2024] FedCFamC2F 492
•23 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pikari & Arona [2024] FedCFamC2F 492
File number(s): MLC 2796 of 2022 Judgment of: JUDGE A. HUMPHREYS Date of judgment: 23 April 2024 Catchwords: FAMILY LAW – PROPERTY – marriage of seven years; cohabitation of four years and two months – no children of marriage – husband seeks alteration of property interests – wife opposes application – application of Stanford – consideration of ss79(2) and 79(4) Family Law Act 1975 (Cth) – husband made no direct financial contributions and only limited indirect financial and non-financial contributions – finding it is not just and equitable to make an order pursuant to section 79 – application dismissed. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 75, 79, 102NA
Federal Circuit and Family Court of Australia, Family Law Case Management Central Practice Direction, 28 November 2022
Federal Circuit and Family Court of Australia, Family Law Practice Direction – Priority Property Pool Cases, 30 October 2023
Cases cited: Bevan & Bevan (2013) FLC 93–545; [2013] FamCAFC 116
Chancellor & McCoy (2016) FLC 93–752; [2016] FamCAFC 256
Chapman & Chapman (2014) FLC 93–592; [2014] FamCAFC 91
Fielding & Nichol [2014] FCWA 77
Gosper & Gosper (1987) FLC 91–818; [1987] FamCA 43
Kennon v Kennon (1997) FLC 92–757; [1997] FamCA 27
Kessey & Kessey (1994) FLC 92–495; [1994] FamCA 162
Mallett v Mallet (1984) 156 CLR 605; [1984] HCA 21
Oamra & Williams (2021) FLC 94–035; [2021] FamCAFC 117
Pikari & Arona [2022] FedCFamC2F 1613
Pelligrino & Pelligrino (1997) FLC 92–789
R & H [2003] FamCA 125
Robb & Robb (1995) FLC 92–555; [1994] FamCA 136
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Whisprun Pty Ltd v Dixon (2003) 234 CLR 492; [2003] HCA 48
Zaruba & Zaruba (2017) FLC 93–776; [2017] FamCAFC 91
Division: Division 2 Family Law Number of paragraphs: 101 Date of hearing: 30 November 2023 & 1 December 2023 Place: Melbourne Counsel for the Applicant: Mr Howe Solicitor for the Applicant: RRR Lawyers Counsel for the Respondent: Mr Baume Solicitor for the Respondent: Marcou & Associates ORDERS
MLC 2796 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR PIKARI
Applicant
AND: MS ARONA
Respondent
ORDER MADE BY:
JUDGE A. HUMPHREYS
DATE OF ORDER:
23 APRIL 2024
THE COURT ORDERS THAT:
1.The applicant’s Initiating Application filed 18 March 2022 (as amended on 17 November 2023) be dismissed.
2.Within 30 days from the date of these orders, the applicant do all acts and things and sign all documents required to withdraw the caveat lodged on his behalf (being caveat number … lodged in late 2020) against the title of the real property known as C Street, Suburb D in the state of Victoria registered in the name of the respondent.
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 A. HUMPHREYS:
On 24 November 2022, leave was granted to the applicant (“husband”) to proceed with an application for an alteration of property interests under section 79 of the Family Law Act 1975 (Cth) (“the Act”) outside of the standard application period provided in the Act.[1] The husband’s application pursuant to section 79 of the Act is now before the court for determination.
[1] Pikari & Arona [2022] FedCFamC2F 1613.
The total period from the date of marriage until judgment is approximately 11 years. Of that time, the parties were married for seven years (from 2013 until 2020) and lived together for a total of four years, from 2014 to 2015 (one year) and from January 2016 until March 2019 (three years).
Given the modest value of the known assets the subject of this proceeding (approximately $540,000 net, including superannuation), the matter has been designated a priority property pool case pursuant to Family Law Practice Direction – Priority Property Pool Cases.[2]
[2] Federal Circuit and Family Court of Australia, Family Law Practice Direction – Priority Property Pool Cases, 30 October 2023
Asking the court to take a global approach across non-superannuation and superannuation assets, the husband seeks the respondent (“wife”) make a payment to him of $130,000 and that the parties otherwise each retain their respective assets and superannuation. Such a payment would result in him receiving approximately 24% of the total value of assets and superannuation available to the parties in Australia, all of which are held by the wife, and 42% of those non-superannuation assets.
The husband acknowledges the wife made all direct financial contributions to the acquisition, conservation and improvement of the property held by her but contends he made indirect financial contributions by virtue of his contribution to day-to-day expenses and that he made non-financial contributions including in the capacity of homemaker and to the care of the wife’s son from a previous marriage. He also submits section 75(2) factors weigh in his favour, relying on the disparity in the parties’ incomes.
The wife emphasises the parties kept their finances separate, save that she supported the husband financially and accumulated debts to do so, and denies the husband made the contributions asserted by him. She contends she made the “bulk” of both financial and non‑financial contributions during the marriage and that her contributions were made more onerous by family violence perpetrated against her by the husband. She submits it would not be just and equitable for there to be any alteration of property interests. Accordingly, she seeks the husband’s application be dismissed and that he remove the caveat lodged against the title to the real property registered in her name.
FINAL HEARING
The matter was listed before me for final hearing on 30 November 2023 and ran for two days. Both parties were represented by counsel under the Family Violence and Cross-Examination Scheme, pursuant to the section 102NA of the Act. Whilst the matter was designated a priority property pool case, standard trial directions were made by the Chief Judge[3] and the matter proceeded as a “traditional” trial rather than a short-form expedited hearing.[4]
[3] Consistently with those annexed to the Federal Circuit and Family Court of Australia, Family Law Case Management Central Practice Direction, 28 November 2022.
[4] As described in the Federal Circuit and Family Court of Australia brochure, Priority Property Pool Cases – Short-form expedited hearings.
Both parties attended in person and were cross-examined. The husband had the assistance of an interpreter but requested to give his evidence in English and only rely on the interpreter when he required it. From the witness box, he confirmed his trial affidavit and financial statement had been translated to him.
THE ISSUES
From the parties’ court documents and discussions with their counsel at the outset of the final hearing, I identified the following issues required determination:
(a)After identifying the parties’ existing legal and equitable interests in property, is it just and equitable for an order to be made altering those interests pursuant to section 79 of the Act?
(b)Only if the answer to (a) is yes, what order altering the parties’ interests in property is appropriate and in all the circumstances just and equitable taking into account:
(i)Those matters required by section 79(4)(a) to (d), in particular, an evaluation of the parties’ contributions; and
(ii)Pursuant to section 79(4)(e), those matters in section 75(2) as are relevant.
EVIDENCE
The documents relied upon by the parties are as set out in their outline of case documents (“case outlines”), together with an amended minute of orders sought by the husband.[5] A small number of other exhibits were tendered as referenced in these reasons.
[5] Exhibit A-2.
The husband took objection to a few aspects of the evidence given by the wife’s father on affidavit. Those objections were dealt with as a preliminary matter at the commencement of the final hearing. No other objections were made.
I have read and considered all of the evidence adduced by the parties. If I have not mentioned a piece of evidence or an argument presented at the hearing that does not mean I have not considered it. As the High Court said in Whisprun Pty Ltd v Dixon:[6]
A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
[6] (2003) 234 CLR 492 at [62] per Gleeson CJ, McHugh and Gummow JJ.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
I will make some general observations in relation to the evidence of the parties and the wife’s father (being the only non-party witness) before returning to consider their evidence in the context of the issues I am required to determine.
Husband
The husband made many generalised assertions in his trial affidavit in respect of the contributions he claims to have made during the parties’ relationship and provided little detail of those asserted contributions. As explained later in my reasons, after hearing both parties’ oral evidence, I find the husband overstated the extent of his financial and non-financial contributions in his trial affidavit and outline of case document.
There were significant omissions in the husband’s evidence in chief, including that he remarried in late 2022. In respect of the husband’s evidence that he had very limited understanding of English at the time he arrived in Australia, when cross-examined he gave evidence he had undertaken post-graduate studies at a university in Country B, studying one subject in English. He gave oral evidence he could read and write English quite well but initially had difficulty with spoken English. His tertiary studies were not mentioned in his affidavit.
The trial directions ordered by the Chief Judge on 23 August 2023 provided the husband with the opportunity to file an affidavit in reply addressing the evidence presented in the wife’s trial affidavit but he did not take that opportunity, including to provide further detail in respect of matters it was clear from the wife’s trial affidavit were disputed.
When cross-examined, the husband frequently did not answer questions directly or responsively.
Wife
The wife’s affidavit also lacked detail in respect of many aspects of her evidence. However, she was responsive in answering questions put to her and readily provided more detail in her oral evidence, consistent with, supporting and elaborating upon the evidence she had given on affidavit. For example, providing detail in relation to tasks undertaken as a parent to her son and as homemaker. Key aspects of her evidence were supported by tendered documents, including the husband’s tax returns and gambling records.
There were some inconsistencies in the wife’s evidence, including with the evidence given by her father. For example, overlap in expenses the wife said she paid for the husband and those her father said he paid. However, both versions were consistent with the wife and her family (either directly or via the wife) providing financial support to the husband and consistent with the husband’s evidence that he was “entirely dependent” on the wife for his financial support when he arrived in Australia.
Much of the wife’s evidence was unchallenged in circumstances where the husband did not file an affidavit in reply and she was cross-examined only briefly (for less than 15 minutes).
In light of my assessment of the parties’ evidence, I prefer and accept the evidence of the wife where it is not inconsistent with other evidence (save for that of the husband) and not implausible.
Wife’s father
The wife’s father, Mr E, was not required for cross-examination. Accordingly, his evidence is unchallenged, including in respect of the financial support provided to the husband and to the parties, and the family violence he deposed he witnessed the husband perpetrate against the wife.
BACKGROUND AND FINANCIAL HISTORY
The wife was born in Country B and migrated to Australia with her parents in or around 1991. She has a son from a previous marriage, who was born in 2008 and is now 15. The wife’s son lived with her during the parties’ marriage (and continues to do so), spending time with his father on alternate weekends (from Friday to Monday), for half of school holidays and for special occasions.
The husband was also born in Country B and lived in Country B until after the parties’ marriage, which was arranged by their families.
Marriage and divorce
The parties met in late 2012. The husband deposed their marriage was registered in Country B in 2012 but did not provide any evidence of that purported marriage. He referred elsewhere in his affidavit to “the commencement of the marriage in 2013.” The parties agree a religious marriage ceremony was conducted in Country B in 2013 and the wife gave evidence that marriage was registered in 2014. The husband gave evidence the parties married again in 2014 because the wife had not obtained a divorce from her previous marriage before they married in Country B. However, the wife tendered a copy of a divorce order made in Australia in 2013[7] dissolving her previous marriage (to her son’s father) solemnised in 2001. That divorce order took effect in 2013, meaning she was divorced at the time of the parties’ marriage ceremony in Country B in 2013.
[7] Exhibit R-4.
A divorce order was made in Australia in mid-2020, dissolving the parties’ marriage solemnised in 2013, with effect from late 2020. The application for divorce was made by the wife and a divorce order was made following dispensation of service requirements in circumstances where the wife says her efforts to serve the husband via a process server were unsuccessful.
Parties’ position at the time they married
The wife gave unchallenged evidence that at the time the parties were married, she was employed with F Company and earning approximately $130,000 per annum plus superannuation. The husband deposed he then had a stable job and was working as a professional for a company in Country B.
The husband asserted that at the commencement of their marriage in 2013, neither party had any assets or liabilities of significance save that the wife had a car which he said he believed was leased. The wife deposed she owned a real property at Suburb G, subject to a mortgage, from a property settlement with her former husband but that her assets were of minimal net value after accounting for legal costs. She gave unchallenged evidence she had approximately $100,000 in superannuation which is consistent with her having worked in well-paid employment prior to the parties’ marriage. I accept the wife’s evidence in respect of her financial position at the time the parties married.
Period of the parties’ marriage
In mid-2013, the wife purchased a house and land package at C Street, Suburb D (“Suburb D”). She deposed she funded the purchase with a gift of $30,000 from her family, savings, and a loan of $410,000. The husband deposed the land was purchased for $204,000 but did not otherwise provide any details of the purchase. He acknowledged in his trial affidavit Suburb D was purchased by the wife and he was not aware of the loan amount. He acknowledged he did not apply any money towards the purchase. However, in closing submissions counsel for the husband relied on the evidence of the wife’s father, who deposed he “lent them $30,000 for the deposit” [emphasis added] and submitted this should therefore be regarded as a joint contribution of the parties.
The wife deposed she also purchased Motor Vehicle 1 for $30,000 at this time, using her savings to fund the purchase. Her father deposed he loaned them $20,000 for the car.
Neither party gave evidence the monies advanced by the wife’s father were repaid and, in her evidence, the wife included the purchase of a car for the husband as one of the payments made by her parents that she feels morally obliged to repay.
In 2014, the respondent arrived in Australia and the parties began living together. He initially lived in Australia pursuant to a spouse visa and was granted permanent residency in 2018.
The wife was working full-time as she did throughout the parties’ relationship. She gave evidence of an annual income as recorded on her tax returns between the financial years ending (“FYE”) in 2014 and 2020, ranging between $142,432 and $176,415 during that time.
The husband deposed he started learning English to better assimilate in Australian culture and that he was initially entirely dependent on the wife to support him financially.
He asserted he took on the role as “house maker and was responsible for all household chores including cleaning of the house, laundry, grocery shopping, cooking meals for the family...” The wife contended the husband “made limited contributions” both in terms of direct and indirect financial contributions and contributions to the welfare of the family. She deposed she “provided the bulk of the financial support for the family, did the majority of household work, shopping, cooking, cleaning, and caring for [her son]”. She provided greater detail in her oral evidence, explaining she often stopped for groceries on her way home from work after collecting her son from after school care and that she undertook meal preparation on a weekend for the week ahead.
The husband deposed he took the wife’s son to and from school/childcare, taught him to speak Country B Language at home and took him to extra-curricular activities. This was disputed by the wife. For example, she gave evidence she paid for and used before and after school care programs and that she would drop her son off in the morning, he had breakfast at before school care, and she picked him up when she finished work, on her way home. When cross-examined the husband conceded the wife took her son to and from before and after school care but only some of the time. She gave evidence she had sufficient flexibility in her work to attend her son’s sports training and she took him to his activities of an evening.
In 2015, the husband began working with a friend, undertaking labouring type work. He deposed, “I was able to make a living for myself and I was no more dependent on [the wife] for my basic needs.” However, he did not give evidence of his income in this role or how it was applied. Significantly, he did not say his income was applied to household or family expenses.
Tendered tax returns of the husband[8] record his income from employment as a labourer as follows:
(a)FYE 30 June 2015: $380;
(b)FYE 30 June 2016: $3,800; and
(c)FYE 30 June 2017: $1,472.
These tax returns also record the husband received modest government benefits – $2,076 for FYE 30 June 2015 and $1,497 for FYE 30 June 2016. In light of this evidence, I reject the husband’s claim he was able to make a living for himself and was no longer dependent on the wife.
[8] Exhibit R-1.
In early 2015, an intervention order was made on the application of Victoria Police naming the wife and her son as protected persons and the husband as the respondent. The husband was excluded from Suburb D upon the making of that order and the parties began living separately and apart.
In late 2015, the parties reconciled and in early 2016 the intervention order was varied to permit the husband to return to live in Suburb D. That order expired in early 2016.
In 2016 the husband began working as a transport worker. He said this was a joint decision, to provide him with flexibility to manage household work, look after the wife’s son and take the wife to and from the train station each day. The wife denied this. She said her employer (F Company) provided her with a car park and she mostly drove to and from work at that time. She gave evidence that when she did not drive to and from work, she drove herself to the station, parked and took the train. I refer to the wife’s evidence in relation to household work and care of her son as outlined earlier in my reasons.
In relation to his income as a transport worker, tendered tax returns for the husband for this period record: [9]
(a)For FYE 30 June 2017, gross business income at $9,956, business expenses of $6,497, and a net business income of $3,459;
(b)For FYE 30 June 2018, total income of $6,947; and
(c)For FYE 30 June 2019, total income of $12,939.
[9] Exhibit R-1.
The husband did not give evidence as to how his income was applied during this period. In his trial affidavit, he made only a broad assertion that “while [the wife] was responsible for the re‑payments for the loan on the Matrimonial home, I was responsible for the day-to-day expenses.” This evidence was given without any temporal reference or detail of the day-to-day expenses he says he was responsible for or that he actually paid. The submission made in the husband’s case outline that he was responsible for day-to-day expenses “of the family” did not accurately reflect the evidence given in his affidavit. When asked about household bills, the husband gave evidence electricity and gas accounts were held in his name and he paid those accounts but provided no further detail. When cross-examined, the husband conceded he contributed a “very limited amount” to the running of the house and the “bulk of it” was contributed by the wife.
The wife deposed she was the main breadwinner for the family during the marriage, meeting “most if not all of the living expenses, financially supporting my son [assisted by child support paid by his father] … myself as well as the Applicant” and that she paid “the majority of household bills (if not all), paying the mortgage, paying for living expenses, paying for the travel for the Applicant, and all incidental that a family has, medical, dental and so on.”
The wife deposed the husband spent most, if not all, of his earnings on alcohol, gambling or sending money overseas to his family. Copy statements from the husband’s gambling accounts were put to him in the witness box, for the period from 2015 to 2022.[10] He agreed he gambled frequently, as recorded in those statements. The tendered statements showed regular bets during that time, in various amounts ranging from less than $1 to as high as $1,000, running over 115 pages. Counsel did not make any submissions as to the quantum of money expended by the husband on gambling and I do not make any findings about that.
[10] Exhibit R-2.
The husband did not file an affidavit in reply to respond to the wife’s evidence in relation to the application of the parties’ income and the payment of household expenses. The wife was cross-examined about this evidence only briefly. She denied the husband paid day-to-day expenses while she paid the mortgage. When asked if he paid for anything, she gave evidence he may have paid for some groceries when he had funds but he did so rarely.
I accept the wife’s evidence that she paid the majority of expenses for the parties and her son, (assisted by child support paid by her son’s father) and their household throughout the parties’ relationship, that evidence being consistent with the evidence of the income and resources available to the parties to meet those expenses.
In late 2017, the wife was made redundant from F Company. A month later, she began working at H Company.
The wife deposed she purchased Motor Vehicle 2 for the husband for $24,000, taking out a loan to fund the purchase. She also said she purchased Motor Vehicle 3 for $40,900, trading in Motor Vehicle 1 and taking out a loan. The wife did not provide dates or further details of these purchases. She deposed she was coerced by the husband to purchase these vehicles and later to transfer registration of Motor Vehicle 3 to his name. Notwithstanding the transfer of Motor Vehicle 3, the loan relating to the purchase of that vehicle remained in her name and she made the repayments without any contribution by the husband. The wife deposed Motor Vehicle 2 was repossessed in early 2018 as she could not afford the repayments for two vehicles. This evidence was not challenged by the husband.
The wife deposed she funded numerous trips for the husband to and from Country B, and that those trips were funded, along with living expenses for the family, from a personal loan of around $15,000. She deposed she accumulated credit card debt totalling $18,000 because the husband was providing limited financial support to their marriage and wasting money on alcohol and gambling. The husband agreed that he drinks alcohol and said he paid for alcohol with his own funds. When pressed, he agreed he also paid for alcohol from a joint account, sometimes for get-togethers with friends, neighbours and work colleagues of the wife. He admitted gambling but denied spending money earned by the wife on gambling.
The wife gave evidence that in early 2019, while drunk, the husband verbally abused her and physically assaulted her. She contends the parties separated on a final basis in March 2019, and the husband then travelled to Country B. In mid-2019, an interim intervention order was made on the wife’s application, again excluding the husband from Suburb D. A final intervention order was made in mid-2019, for five years. The husband agreed he travelled to Country B in early 2019, but denied the parties were separated at that time. He contends the date of final separation was June 2019, being the date on which he returned from Country B and was served by police at Melbourne Airport with a copy of the interim intervention order. Whether the parties’ marriage broke down irretrievably in March or June 2019 matters not for this proceeding.
The husband deposed to using monies in the parties’ joint account for daily expenses while he was in Country B until he learned all monies in the account had been withdrawn. He did not provide any further details in his affidavit about the joint account, monies he had paid to the joint account or of funds withdrawn from the joint account. In relation to the husband’s access to funds while overseas, the wife deposed he used some of the funds from the personal loan she had obtained and there were no funds left in the bank, the husband having used most of them. The wife deposed that without funds in the bank and with debts, Motor Vehicle 3 was repossessed. She deposed she was left to pay the mortgage and to service approximately $50,000 in personal loans, credit card debts and household bills. Neither party were cross‑examined in relation to this evidence. It is apparent from the wife’s financial statement she has reduced those liabilities after separation.
The husband deposed, “Sometime in 2019 or 2020, [the wife] and I decided to purchase a property in [Suburb J]. We paid around $40,000 - $45,000 for the deposit of the property”. He did not give any evidence of the circumstances of the purchase or of any contribution made by him to the deposit. I presume this occurred before the parties separated finally but this was not confirmed in their evidence. The husband deposed he was unaware if the wife completed the purchase and asserted she has not provided any documents pertaining to the purchase. The wife deposed she was coerced by the husband to apply the funds she received by way of redundancy from F Company towards the deposit for the purchase of this property but as neither she nor the husband had applied for or secured funding for the purchase it did not proceed and the deposit of $40,900 was forfeited. Neither party was cross-examined in relation to their evidence about this transaction.
Period after separation
The husband did not assert he made any contributions of any nature after the parties’ separated.
He deposed that he resumed transport work, that he was homeless and had no place to go and lived in his car for eight months before finding shared accommodation. He otherwise provided little evidence of his circumstances after separation. He acknowledged he had not produced copies of his tax returns for the FYE 30 June 2020, 2021, 2022 and 2023. He said he had not filed tax returns for the financial years from 30 June 2021 onwards.
The wife deposed she was made redundant from H Company in mid-2020 and was unemployed from that time until early 2021. She began volunteering during this time. She said she negotiated with her bank, seeking financial hardship relief as a victim of family violence, and that her parents provided her with financial support to pay the mortgage while she was not working. The wife deposed that in mid-2020 she was granted assistance from the Victims of Crime Assistance Tribunal (VOCAT) as a victim of family violence, for relocation expenses and loss of income.
In late 2020, the husband lodged a caveat against the title of Suburb D. On 23 March 2021, the husband’s lawyers advised the wife of his intention to apply for a divorce. The wife replied to advise a divorce order had been made. Following correspondence between the wife and his previous lawyers, the husband commenced these proceedings on 18 March 2022.
The husband deposed he was not eligible for legal aid and did not initially have funds available to him to initiate court proceedings. He deposed that in early 2022 he secured a full-time job as a professional, which enabled him to save money over two months and fund legal costs to commence these proceedings. He did not give evidence about this role, including the duration of the position and his remuneration.
The wife deposed her employment was terminated in mid-2023 and she was again unemployed until she obtained her current position in late 2023.
Procedural history
The husband’s Initiating Application was filed on 18 March 2022, more than 12 months after the parties’ divorce took effect in late 2020. The husband’s interlocutory application for leave to proceed with his application outside of the standard application period (out of time) was heard on 10 and 17 November 2022. Judgment was delivered in respect of that issue on 24 November 2022, granting the husband leave to make his application seeking an alteration of property interests.
Parties’ current circumstances
Husband
The husband is aged 34. He deposed he lives in shared accommodation, paying board of $500 per month, including amenities and excluding food. This amounts to $6,000 per annum and puts into context the indirect financial contributions he claims he made during the parties’ marriage, in circumstances where his annual income was far less than that until 2018/2019.
The husband deposed he works as a transport worker, earning a gross weekly income of approximately $800, which equates to approximately $41,600 per annum. He deposed to expenses required to earn this income, including car rental, fuel and tolls, of approximately $525 to $545 per week (so, between $27,300 and $28,340 per annum).
The husband deposed he is in good health, save for an injury from an alleged assault by the wife’s brother. He said he has been told he requires surgery. He did not adduce medical evidence in relation to this injury.
The wife’s father deposed that in early 2023, he saw the husband had posted on Facebook photographs of the husband’s own wedding and that his Facebook page stated he was married in 2022 in Country B. In a Notice to Admit filed by the wife in late 2023, the husband was asked to admit he married Ms K in Country B in 2022. In late 2023 the husband filed a Notice Disputing a Fact or Document in which he did not deny that fact. This marriage was confirmed by the husband in cross-examination.
In his trial affidavit, the husband said he was having serious thoughts about returning to live in Country B where he has family support and had a “decent job”. When cross-examined, the husband gave evidence he intends to return to live in Country B with his wife, in his mother’s home.
Wife
The wife is aged 42. She lives with her son at an address she seeks not to disclose due to concerns for their safety, given the husband’s repeated contravention of the intervention order made in 2019.[11]
[11] When responding to the wife’s Notice to Admit, the husband did not dispute he has been charged and convicted (in 2019 and 2020) of persistent contravention of a family violence order protecting the wife and her son.
The wife holds post-graduate qualifications and completed further studies after separation. She gave oral evidence she had been undertaking further study during the parties’ marriage, usually when her son was in the care of his father. She is employed as a professional and deposed in her financial statement to earning a gross weekly income from employment of $2,213, which equates to approximately $115,076. She also deposed to receiving a gross rental income of $430 per week, from letting Suburb D, which equates to approximately $22,350 per annum. She also receives child support from her son’s father of $182 per week.
The wife deposed she is in good health.
LEGAL PRINCIPLES – ALTERATION OF PROPERTY INTERESTS
Before making any order altering the interests of the parties to a marriage in property, section 79(2) requires that I must be satisfied, in all the circumstances, it is just and equitable to do so.[12] If I am so satisfied, I then have power under the Act to make such order as I consider appropriate and just and equitable, taking into account the matters set out in sections 79(4) and, by virtue of section 79(4)(e), those considerations in section 75(2) as are relevant.
[12] Stanford v Stanford (2012) 247 CLR 108 (“Stanford”).
To determine if it is just and equitable to make any order, I must first identify the existing legal and equitable interests of the parties in property according to common law and equitable principles.[13]
[13] Stanford at [37].
PARTIES’ PROPERTY INTERESTS
Counsel for the husband tendered a spreadsheet identifying current assets and liabilities that were agreed by the husband:[14]
[14] Exhibit A-1.
Assets & liabilities Ownership Value Suburb D Wife $655,000 Motor vehicle Wife $80,000 Household contents Wife $5,000 Cash at bank Wife $7,000 Home loan secured by mortgage against Suburb D Wife ($351,000) Loan referable to motor vehicle Wife ($80,000) HECS debt Wife ($7,000) NAB credit card Wife ($15,000) ATO liability Wife ($3,000) Outstanding fines Wife ($4,930) Total $286,070
I have accepted these assets and liabilities as conceded by the husband via his counsel.
The wife recorded outstanding school fees in her case outline. I have not included that liability on the balance sheet given the husband does not have a financial obligation to support the wife’s son.
The husband included the wife’s car loan with a balance owing of $77,000. The wife included that liability in her financial statement and case outline at $60,000. I have adopted the lower value asserted by the wife, meaning she has greater equity in her car than asserted by the husband.
The husband deposed to personal belongings valued at $500 in his financial statement, which was included on the wife’s balance sheet in her case outline. I include this as an asset of the husband with the value admitted by him.
The wife deposed her parents provided approximately $150,000 from 2013 to 2018, including by way of engagement and wedding gifts, airfares, the parties’ wedding, a sum of money, for the husband to travel to Country B, a contribution to the husband’s sister’s wedding, towards purchase of a car for the husband and for renovations to his family home in Country B. The wife deposed she has a moral obligation to repay her parents when she is able to but gave evidence there is no contract in place and no written agreement. She did not assert she has a legal obligation to repay these monies and did not include it as a liability on the balance sheet in her case outline. Accordingly, I do not include this as a liability on the balance sheet.
The wife asserted the husband has an interest in real property in Country B, inherited by him upon the death of his father. When cross-examined, the husband initially denied inheriting property upon the death of his father in 2020 or holding an interest in a property in Country B. A translation of a Country B property record was put to the husband in cross-examination.[15] When it was put to him that the document showed an order was made that his name and his mother’s name be registered as heirs in place of his deceased father, the husband at first maintained his denial. He then said he had no idea and would have to ask his mother about it. He did not explain why he had not already made enquiries of his mother after being served with the wife’s Notice to Admit, which asserted he had inherited property in Country B upon his father’s death. The husband eventually acknowledged the tendered document showed he holds an interest in a property in Country B along with his mother but maintained that he did not previously know and that is why he did not disclose the interest. Notwithstanding that admission, there is no evidence before the court in relation to the nature of the husband’s interest in property in Country B, in which others also appear to have an interest, about the property itself or of its value.
[15] Exhibit R-3.
The husband disclosed in his financial statement that he holds only two bank accounts, held jointly with the wife, of no value. When cross-examined, he agreed he holds a bank account in his sole name. He said he had provided statements for that account via his lawyers. I note the wife did not seek to attribute any value to the husband’s bank accounts.
Neither party sought paid legal fees be “added back” and considered alongside the parties’ interests in property.
Existing legal and equitable interests in property
Having undertaken the above evaluation of the evidence, I find the parties have the following existing legal and equitable interests in property:
Assets & liabilities Ownership Value Suburb D Wife $655,000 Interest in real property in Country B Husband with his mother Not known Motor vehicle Wife $80,000 Household contents Wife $5,000 Household contents Husband $500 Cash at bank Wife $7,000 Cash at bank Husband Not known Home loan secured by mortgage against Suburb D Wife ($351,000) Loan referable to motor vehicle Wife ($60,000) HECS debt Wife ($7,000) NAB credit card Wife ($15,000) ATO liability Wife ($3,000) Outstanding fines Wife ($4,930) Total (known) $306,570 Superannuation
The wife also has the following interest in superannuation, as disclosed in her updated financial statement:
Superannuation Member Value Super Fund 1 Wife $233,347 Total $233,347
The husband did not disclose any superannuation. He has worked in Australia mainly as a transport worker. However, he also gave evidence of obtaining a full-time job in 2022 which enabled him to save money for legal fees. He has not produced tax returns after FYE 2019. Whilst he may have some superannuation, it is unlikely he has accumulated a substantial superannuation balance given the relatively short period of time he has worked in Australia.
Financial resources
Neither party disclosed or asserted financial resources in their financial statements, the joint balance sheet or at trial.
IS IT JUST AND EQUITABLE TO MAKE AN ORDER?
In relation to the operation of section 79, the High Court set out in Stanford & Stanford ("Stanford"):[16]
It will be recalled that s 79(2) provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order". Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub‑sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
The expression "just and equitable" is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. And while the power given by s 79 is not "to be exercised in accordance with fixed rules", nevertheless, three fundamental propositions must not be obscured.
[16] At [35]–[36].
Having first identified the parties’ legal and equitable interest in property, the High Court in Stanford explained the exercise required to determine if it is just and equitable to alter those existing interests:[17]
Second, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth, Dixon CJ observed that a power to make such order with respect to property and costs "as [the judge] thinks fit", in any question between husband and wife as to the title to or possession of property, is a power which "rests upon the law and not upon judicial discretion". And as four members of this Court observed about proceedings for maintenance and property settlement orders in R v Watson; Ex parte Armstrong:
"The judge called upon to decide proceedings of that kind is not entitled to do what has been described as 'palm tree justice'. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down".
Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is "just and equitable" to make the order is not to be answered by assuming that the parties' rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that "[c]ommunity of ownership arising from marriage has no place in the common law". Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be "decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses". The question presented by s 79 is whether those rights and interests should be altered.
Third, whether making a property settlement order is "just and equitable" is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised "in accordance with legal principles, including the principles which the Act itself lays down". To conclude that making an order is "just and equitable" only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
Adherence to these fundamental propositions in exercising the power in s 79 gives due recognition to "the need to preserve and protect the institution of marriage" identified in s 43(1)(a) as a principle to be applied by courts in exercising jurisdiction under the Act. If the parties have made a financial agreement about the property of one or both of the parties that is binding under Pt VIIIA of the Act, then, subject to that Part, a court cannot make a property settlement order under s 79. But if the parties to a marriage have expressly considered, but not put in writing in a way that complies with Pt VIIIA, how their property interests should be arranged between them during the continuance of their marriage, the application of these principles accommodates that fact. And if the parties to a marriage have not expressly considered whether or to what extent there is or should be some different arrangement of their property interests in their individual or commonly held assets while the marriage continues, the application of these principles again accommodates that fact. These principles do so by recognising the force of the stated and unstated assumptions between the parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of that husband and wife during the continuance of their marriage. The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.
[citations omitted]
[17] At [38]–[41].
In Bevan & Bevan (“Bevan”),[18] the Full Court considered Stanford and the matters that might be taken into account in determining whether it is just and equitable to alter the existing interests of property. In relation to the relationship between section 79(2) and section 79(4), the Full Court explained:
Just as the expression “just and equitable” does not admit of exhaustive definition, it is not possible to catalogue the “range of potentially competing considerations” that may be taken into account in determining whether it is just and equitable to make an order altering property interests. However, in our view, it would be a fundamental misunderstanding to read Stanford as suggesting that the matters referred to in s 79(4) should be ignored in coming to that decision. Indeed, such a reading would ignore the plain words of s 79(4) which make clear that in considering “what order (if any)” to make, the court must take into account the matters referred to in that subsection (emphasis added).
This requirement to consider the s79(4) matters, in determining whether it is just and equitable to make any order provides fertile ground for potential conflation of the two different issues, which the High Court has warned against. However, this potential will not be realised in many cases because of what the plurality said at [42] about the “just and equitable” requirement being “readily satisfied”. But there will be a range of cases, of which arguably the present is a good example, where determining whether it is just and equitable to make any order altering property interests will not be so clear cut and will therefore require not only separate but very careful deliberation.
[…]
It will be seen from this discussion that while the s 79(2) and s 79(4) issues must not be conflated, they are intertwined because the text of the Act links them. This was recognised in Ferguson & Ferguson where Strauss J said that s 79(2) “is directed to both the questions whether an order should be made at all, and what the order should be, if one is made” (supra at 77,615).
[…]
In our view, it will be less likely that the separate issues arising under s 79(2) and s 79(4) will be conflated if judges refrain from evaluating contributions and other relevant factors in percentage or monetary terms until they have first determined that it would be just and equitable to make an order. …
[emphasis per original]
[18] Bevan & Bevan (2013) FLC 93–545 (“Bevan”) per Bryant CJ and Thackray J at [84]–[85], [87] and [89] (emphasis per original).
In Bevan, Finn J distilled that:[19]
Findings of fact concerning the parties’ financial history (i.e. the contributions) and their present circumstances and future prospects made in the context of s 79(4) will also assist, but such findings cannot (according to Stanford) be conclusive in determining whether or not it is just and equitable to make an order altering any particular property interest.
[19] At [169].
Considering Bevan and Chapman & Chapman[20] Thackray CJ explained in Fielding & Nichol:[21]
The fact the “two inquiries” under s 79(2) and s 79(4) are “separate” and “not to be merged” also does not mean, as a matter of logic, that matters arising under s 79(4) can be ignored when deciding whether it is just and equitable to make any order adjusting existing interests. The provisions of s 79(4) encompass what Finn J in Bevan & Bevan described as “the parties’ financial history (ie their contributions) and their present circumstances and future prospects” – and her Honour went on to hold that findings of fact about those matters will assist in determining whether it is just and equitable to make any order. Similarly, as the Chief Justice pointed out in Chapman & Chapman at [5], “the matters referred to in subparagraphs (a) to (c) of s 79(4) in particular, would be likely to embrace much of the factual substratum on which any exercise of discretion would be based”. …
Submissions in relation to section 79(2) / just and equitable to make an order?
[20] Chapman & Chapman (2014) FLC 93–592.
[21] [2014] FCWA 77 at [42].
Husband
Counsel for the husband contended this case is one of the vast majority of cases in which the High Court in Stanford recognised it would be just and equitable for there to be an alteration of property interests between the parties, including because the breakdown of their relationship ended their common use of Suburb D.
Counsel for the husband submitted it was significant that the wife’s father gave evidence he “lent them $30,000” [emphasis added] for the deposit for the purchase of Suburb D. Counsel argued that on the basis of that evidence, the parties should be regarded as making a joint contribution to the purchase of Suburb D. In respect of this submission, I note the husband’s own evidence in his trial affidavit that “[the wife] purchased [Suburb D]” and that he was unaware of the loan amount borrowed to purchase the home. He did not provide any other information about the purchase. There was no evidence the amount advanced by the wife’s father towards the purchase of Suburb D was repaid or was expected to be repaid. The wife was not cross-examined in respect of her evidence that her parents gave her $30,000 for the deposit on the house and land package. Even if I were to accept the husband’s submission that the wife’s father loaned the parties $30,000, it is open to me to look at the actuality and treat such an advance as a financial contribution made directly on behalf of the wife, via her father,[22] and I do so. In the absence of evidence to the contrary, I find the motivating circumstance leading to the advancement of this sum (and not subsequently requiring that sum to be repaid) was the relationship between the wife and her father, that it was his intention to benefit his child, and monies advanced by the wife’s father should be regarded as a contribution of or on behalf of the wife, not of the parties’ jointly.
[22] [2014] FCWA 77 at [42].
Otherwise, counsel pointed to the husband’s limited evidence of mostly unparticularised financial contributions to household expenses, his asserted but disputed contribution to homemaker responsibilities, and his asserted but disputed contribution towards the care of the wife’s son, over the period the parties lived together, as supporting his contention that it is just and equitable for there to be an alteration of property interests in favour of the husband.
Wife
Counsel for the wife relied on Stanford, also focussing on the parties’ respective contributions. Counsel pointed to the husband’s concession when cross-examined that he did not make any direct financial contribution to Suburb D and he made only limited indirect financial contributions to household expenses, confined by his limited income during the marriage. He further submitted the wife’s contributions were made more arduous because of the family violence she alleges was perpetrated against her by the husband.
Section 79(2) determination / just & equitable to make an order?
I have determined that it would not be just and equitable to make any order altering the interests of the parties in property, taking into account the following matters in particular:
(a)Whilst the parties married 11 years ago, they cohabited only for four years;
(b)Suburb D was purchased by the wife shortly after the parties’ marriage and before they began living together, without any financial contribution by the husband. It was registered in the wife’s sole name. The home loan secured by mortgage against Suburb D was in the wife’s sole name. This was the case throughout the parties’ relationship and remains so now. The husband acknowledged he did not make any contribution to the Suburb D mortgage and did not assert any direct financial contribution to the property itself;
(c)The parties kept their financial affairs separate throughout their relationship, save that the wife provided the husband with financial support and transferred ownership of a car to him. That car was later repossessed when she was unable to keep up with repayments for the loan financing it;
(d)Whilst the husband made brief reference to joint accounts he did not give any evidence of monies paid by him to those accounts, only of withdrawing funds (when overseas) or expending funds (to buy alcohol and groceries);
(e)The husband conceded he made “very limited” contributions to household expenses during the time the parties lived together and I find this must be the case given his low income as demonstrated by his tax returns in the absence of other resources. This evidence revealed the submission made in his case outline that he “was responsible for the day-to-day expenses of the family” to be a gross exaggeration if not false;
(f)The husband gave oral evidence the parties did not make any decisions or have any conversations about their financial relationship or to make any plans for their future together until 2016. He referred to their relationship in two parts – before their separation in 2015 and after they reconciled in 2016 and said:
We had it two times. First time […] when I came here 2014 and 15, we started to live together after 16, by own, without no parents’ involvement. Then we started to make own decisions together, what we should do for us or [the wife’s son]. So, 2016 after returned back to […] live together, so I started to […] look a job because before 2016 her parents they living us together and they dominating, so like – no life – we didn’t have any conversation of like what we should do […]. So, first part, like I was totally dependent on her. That time. When we came back, second part, so we started to like live just a normal couple and started to make a plan for the future and what we should do, what we shouldn’t.
(g)After acknowledging they did not have any conversations about their future until at least 2016, the husband did not give any evidence of plans they made thereafter to depart from the way in which they had separately conducted their finances to that point. Accordingly, I do not consider this is a case where the parties expressly considered there should be some different arrangement of their property interests than was reflected in their individually held assets. I find their relationship continued based on the implicit assumptions that underpinned the existing property arrangements;
(h)I am not satisfied the implicit assumptions that the parties would conduct their finances in the way they did was other than mutual, as the Full Court confirmed is required in Oamra & Williams;[23]
[23] (2021) FLC 94–035.
(i)The husband deposed the wife and her family were “very upset” with him taking on work as it meant the wife would need to contribute towards household work and look after her son. This was denied by the wife, who gave evidence when cross-examined that she was excited when he obtained work and that she was at all times primarily responsible for her son’s care. I accept the wife’s evidence in this regard. I do not find the wife in any way restricted the husband from pursuing employment and the acquisition of assets, by requiring him to attend to homemaker responsibilities or to care for her son. To the contrary, the evidence of the wife and her father, detailed the significant financial support provided to the husband, to obtain a spouse visa and then permanent residency in Australia, to undertake retraining and providing him with vehicles which enabled him to work. That evidence was not challenged by the husband in any meaningful way. The husband did not give evidence of other opportunities available to him which he gave up to undertake the work he did or that he wished to pursue but was prevented from doing so;
(j)It is evident the parties had little knowledge of the other’s finances. For example, the husband had no knowledge of how Suburb D was financed or of the amount borrowed by the wife. I find this was not because of non-disclosure or a power imbalance between them for example but because of the way in which they mutually proceeded to keep their financial affairs separate;
(k)I am satisfied the husband was free to apply his income as he chose while being supported financially by the wife, without accountability to her. For example, the husband admitted he applied money from his income on gambling throughout the parties’ relationship, opening his gambling account in late 2015 and making regular bets notwithstanding his very low income. This is consistent with the parties’ mutual understanding they would each apply their income to their individual endeavours without explanation or accountability to the other;
(l)The husband had the benefit of living in the Suburb D property for 4 years at no cost save for his “very limited” contributions to what he described in his trial affidavit as “day-to-day” expenses. The husband did not quantify those contributions but given the evidence of his low income and the absence of other resources, they must have been modest. I refer to my earlier observation about the cost of board now paid by the husband in the context of his asserted financial contributions to expenses when the parties lived together. In respect of his limited contribution to day-to-day expenses, I note the following finding of the primary judge upheld by the Full Court in in Chancellor & McCoy:[24]
The payment of monies by [the appellant] to [the respondent] of $100 to $120 per fortnight for most of the relationship, whether classified as mortgage repayment ([the appellant’s] terminology) or rent or board ([the respondent’s] terminology), I find, given the small amount of payment in respect to the overall size of the pool accumulated by [the respondent], cannot be viewed as financial intermingling, but as financial assistance to the other party as the home owner who provided housing for the parties to live in during the entirety of the relationship.
(m)The husband acknowledged the wife met the “bulk” of the cost of running their household and did not challenge the wife’s evidence that she accumulated significant debt supporting him and his expenses during the marriage;
(n)I find the husband’s contention that he was responsible from 2014 for “all household chores” and from 2016 for “all household chores for the entirety of the rest of the marriage” [25] [my emphasis] implausible, not least because of the husband’s regular overseas travel. I prefer the wife’s evidence in relation to the homemaker responsibilities undertaken by each of the parties given her more detailed and convincing evidence when cross-examined and her concession that the husband undertook some household tasks, even if only rarely;
(o)I am not satisfied the husband made substantial contributions caring for the wife’s son. He acknowledged the wife’s son attended before and after school care. The wife’s son spent alternate weekends and half of school holidays with his father. The wife’s oral evidence about her care for her son was more detailed than that of the husband and I found it more convincing. Even if I accept the husband’s evidence that he assisted with the care of the wife’s son to some modest extent during the 4 years they lived together, counsel for the husband appropriately acknowledged the husband’s asserted contributions to the care of the wife’s son are not considered contributions to the welfare of the family, the wife’s son not being a child of their marriage.[26] Accordingly, any such contributions would be taken into account only pursuant to section 75(2)(o), by virtue of section 79(4)(e) and the Full Court has made it clear not everything a party does for the benefit of their spouse or partner’s children should result in some monetary reward in property settlement proceedings;[27]
(p)The husband is 34. He lived with the wife for only 4 years. He has remarried and intends to return to live in Country B in his mother’s home, with his wife, where he says he had a decent job and family support. He inherited an interest in property in Country B upon the death of his father in 2020, along with his mother, although the details of that property or its value are not known. He has ample opportunity to work and acquire assets; and
(q)The wife is 42. She continues to have the primary caring responsibility for her teenage son. She will retain Suburb D, being the property she acquired in her own name, utilising funds advanced by her father towards the deposit and a home loan she has serviced independently from the husband. She will retain responsibility for the liabilities in her name, leaving her with assets with a net value of just over $300,000. She will retain her superannuation, $100,000 of which she had prior to the parties’ marriage and which she has continued to contribute to after separation, via her employment. She has resumed paid employment and earns income from employment and letting Suburb D.
[24] (2016) FLC 93–752 at [27].
[25] Husband’s case outline, at [8] and [11].
[26] Zaruba & Zaruba (2017) FLC 93–776 at [53]; Robb & Robb (1995) FLC 92–555 at [81], [547].
[27] Zaruba at [54] referring, for example, to R & H [2003] FamCA 125 at [18] and [23].
Whilst I have considered the matters stated in section 79(4) when considering the parties’ financial history, those matters form only part of my consideration. I have taken care not to make my decision only by reference to those matters as the Full Court made clear is required in Bevan and Chapman, heeding the warning of the High Court in Stanford not to conflate consideration of section 79(2) and 79(4) considerations.
Having undertaken this exercise, I find there is no principled reason to alter the parties’ existing interests in property. In respect of the husband’s key contention, I am not satisfied this is one the many cases in which the High Court in Stanford observed the “just and equitable” requirement is readily satisfied by the parties no longer living in a marital relationship and there no longer being a common use of property by them.[28] Most significant in my assessment are my findings that the parties conducted their relationship based on an implicit understanding that they would keep their financial affairs and property interests separate; Suburb D was acquired and conserved by the wife without any direct financial contribution by the husband; and, to the extent the husband made limited indirect financial and non-financial contributions to day-to-day expenses and homemaker responsibilities during the time the parties lived together, that was consistent with him providing financial assistance to the wife as the owner of Suburb D who provide housing for the parties to live in during their relationship.
[28] at [44].
Family violence
The wife relies on Kennon v Kennon[29] (“Kennon”) submitting her task was made more onerous due to the family violence the husband perpetrated against her and her son.
[29] (1997) FLC 92–757.
In relation to this submission, the Full Court explained in Kennon:[30]
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79.
[30] At [84,294].
I refer to the statement made by the High Court in Stanford, that the “range of potentially competing considerations” which can be taken into account in determining whether it is just and equitable to make an order pursuant to section 79 of the Act do not admit of “exhaustive definition”.[31] It may be that family violence is one such potential consideration.
[31] At [36], citing Mallett v Mallet (1984) 156 CLR 605 at [608] per Gibbs CJ. See extract at paragraph [87] of these reasons.
I have found that the requirement of section 79(2) is not met and it is not just and equitable to make an order pursuant to section 79. It is therefore not necessary for me to proceed with an evaluation of the parties’ contributions and to consider if the wife’s contributions were made more onerous or arduous by the alleged conduct of the husband.
CONCLUSION
Having determined it is not just and equitable to make an order altering the parties’ existing interests in property, I will make an order dismissing the husband’s application and requiring him to remove the caveat lodged against the title of Suburb D, within 30 days from the date of my order, at his expense.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A. Humphreys. Associate:
Dated: 23 April 2024
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