POPOVIC & ROSSI
[2014] FCCA 1443
•8 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| POPOVIC & ROSSI | [2014] FCCA 1443 |
| Catchwords: FAMILY LAW – Spousal maintenance – application for spousal maintenance – maintenance sought by wife for limited period – where maintenance sought until wife completes her [omitted] degree – where limited period appears to have closed. PRACTICE AND PROCEDURE – Appointment of a Registrar to sign documents under Family Law Act 1975 (Cth) s.106A. |
| Legislation: Family Law Act 1975 (Cth), ss.72, 75, 77, 79, 106A, 117B Federal Circuit Court Rules 2001, r.22.01 |
| Cases cited: Bushby & Bushby (1988) FLC 91-919 distinguished Hickey & Hickey [2003] FamCA 395; (2003) 30 Fam LR 35; FLC 93-143 Quinn & Quinn (1979) FLC 90-677 Richter & Maguire [2008] FMCAfam 214 distinguished Stanford v Stanford [2012] HCA 52; (2012) 47 Fam LR 481; FLC 93-518 Weir & Weir (1992) 16 Fam LR 154; (1993) FLC 92-338 |
| Applicant: | MS POPOVIC |
| Respondent: | MR ROSSI |
| File Number: | SYC 5926 of 2012 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 2 August 2013 |
| Date of Last Submission: | 3 September 2013 |
| Delivered at: | Sydney |
| Delivered on: | 8 July 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kenny |
| Solicitors for the Applicant: | Shepherds the Family Law and Mediation Specialists |
| Solicitor for the Respondent: | Mr Martin |
| Solicitors for the Respondent: | Lumlan & Associates |
ORDERS
The Application for spousal maintenance made on 4 October 2012 is dismissed.
The Respondent Husband is to pay to the Applicant Wife the sum of $45,145.00 by way of settlement of property within one (1) month of the date of these Orders.
The Respondent is to pay to the Applicant interest on all amounts of the said sum of $45,145.00 unpaid one month from the date of these Orders at the rate prescribed by Rule 22.01.
In default of payment of the said sum of $45,145.00 and any interest under the above Orders, the Applicant and the Respondent must forthwith do all acts and things and sign all necessary documents to effect a sale of the real property situate at and known as Property Y, [Y] in the State of Western Australia being [omitted] and by way of consequential arrangement:
(a)The Applicant and the Respondent must make all such arrangements and do all such acts and sign all such documents and pay all moneys equally, necessary to procure a sale by public auction of the said real property upon the following terms:
(i)The Auctioneer shall be as agreed upon between the parties and if there is no agreement then as nominated by the President of the Real Estate Institute of Western Australia;
(ii)The auction is to take place within three (3) months;
(iii)The reserve price will be as agreed by the parties or, in default of agreement, as proposed by the Auctioneer;
(iv)The Applicant and the Respondent must each pay and be responsible for payment of one half of the auction expenses payable prior to the day of the Auction;
(v)In the event that the real property is not sold by auction or by private negotiation within fourteen (14) days after the date of the Auction, then the Applicant and the Respondent must do all acts and sign all necessary documents and pay all necessary expenses in equal shares to procure a second auction within a further period of five (5) weeks of that date otherwise upon the same terms and conditions as applied to the first auction.
On completion of the sale as prescribed by the above orders, the proceeds of the sale are to be applied as follows:
(a)In payment of all costs, commissions and expenses of the sale and to pay any Council and water rates and maintenance levies outstanding in respect of the real property;
(b)To discharge the mortgage and any other encumbrances affecting the real property;
(c)To pay to the Applicant the amounts payable under Order (2) and (3) above; and
(d)To pay the balance to the Respondent.
Pending payment of the amounts ordered to be paid to the Applicant or completion of the sale of the real property:
(a)The Respondent must pay all instalments due under the mortgage and all rates and taxes and like apportionable outgoings of the real property as and when they fall due; and
(b)Neither party is to encumber or further encumber the real property without the consent in writing of the other party.
If either party refuses or neglects to sign any document or execute any deed or instrument necessary to give effect to these Orders within fourteen (14) days of being requested in writing to do so, then a Registrar of the Court is appointed to sign the document or execute the deed or instrument in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the document, deed or instrument.
If a party seeks an order for costs he or she must file and serve an affidavit setting out the amount of costs sought and the basis upon which those costs are calculated within one (1) month from the date of these Orders.
All other Applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Popovic & Rossi is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 5926 of 2012
| MS POPOVIC |
Applicant
And
| MR ROSSI |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Wife for an adjustment of property between the parties following the breakdown of their marriage. In her Application she seeks orders for:
a)spouse maintenance in the sum of $250.00 per week for a limited period;
b)a cash payment of $40,000.00 from the Husband in return for his retaining various assets; and
c)that the Husband deliver up certain items of furnishings and other chattels.
The Respondent, by his Response filed on 30th November 2012, seeks orders:
a)dismissing the application for spouse maintenance;
b)declaring that the parties should be solely entitled to the chattels and other property currently in their possession or control.
Background
The Respondent was born in [I] on [omitted] 1977. He has lived in Australia since 2007.
The Applicant was born in [I] on [omitted] 1984. She has lived in Australia since 2004.
The Respondent purchased a home unit at Property Y, [Y] in Western Australia, for $400,000.00 in 2007. He obtained finance from the National Australia Bank in the amount of $318,000.00.
In January 2008 the Applicant ceased her studies in Adelaide and moved to Perth, where she and the Respondent commenced living together.
The parties were married in Adelaide on [omitted] 2008.
The parties took part in a traditional wedding ceremony in [T] in November 2008.
The Applicant obtained Australian citizenship in 2009.
The parties separated temporarily in July 2009 after an incident between them. The Applicant moved out of the matrimonial home for a period four weeks and lived in a hotel in Perth.
The Respondent obtained permanent residency in Australia in June 2011.
In June 2011 the Applicant travelled to Adelaide for a holiday to visit her family. Whilst she was in Adelaide, she received a letter from solicitors acting for the Respondent informing her that the marriage was over. The Applicant instructed a solicitor and there was a correspondence between her solicitor and the Husband’s solicitor about arrangements for her to collect her possessions from the matrimonial home.
The Applicant attended the home on 30th July 201 and collected some of her possessions.
The Applicant moved to Sydney in February 2012 and commenced studying at the University [omitted]. The Respondent remained living in Perth.
The proper approach to determination of a property application
The way a court approaches a property application under s.79 of the Family Law Act 1975 (Cth), is, first of all, to follow the principles set out by the High Court of Australia in Stanford v Stanford.[1] First, the Court must consider the requirement in s.79(2) of the Act that prescribes:
The 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.
[1] [2012] HCA 52; (2012) 47 Fam LR 481; FLC 93-518
The High Court held that the Court must first identify the existing legal and equitable interests of the parties in the property (at [37]). Although s.79 confers a broad power on a court to make a property settlement order, “it is not a power that is to be exercised according to an unguided judicial discretion” (at [38]).
The third principle, and perhaps the most important, is:
…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 contributions) set out in s. 79(4).[2]
[2] [2012] HCA 52 at [40]
Thus, the decision in Stanford means that the Court must consider the requirements of s.79(2) before embarking on the four-step process set out in Hickey & Hickey[3] . This means that the Court must be satisfied that it is just and equitable to make an order at all.
[3] [2003] FamCA 395; (2003) 30 Fam LR 35; FLC 93-143
In Hickey, the Full Court of the Family Court set out a process of four inter-related steps that must be taken by a Court when determining a property application:
Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties…and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters…including…the matters referred to in s.75(2) so far as they are relevant…Fourthly, the Court should…resolve what order is just and equitable in all the circumstances of the case.[4]
[4] [2003] FamCA 395; (2003) 30 Fam LR 35; FLC 93-143 at [39] per Nicholson CJ, Ellis & O’Ryan JJ
It is neither contradictory nor redundant to consider again whether a proposed order is just and equitable under s.79(2), because the Court is considering the matter after having undertaken the three previous steps referred to in the decision.
Evidence and Submissions
The Applicant relied on the following:
a)her affidavit of 30th July 2013;
b)the affidavit of her father, [name omitted], also of 30th July 2013; and
c)her Financial Statement of 30th July 2013.
Both the Applicant and her father gave oral evidence and were cross-examined by the Respondent’s solicitor, Mr Martin.
The Applicant also filed an affidavit of Mr S, an Independent Property Advisor and Certified Valuer, in which he expressed his opinion that the value of the real estate at Property Y, [Y], was $400,000.00. This value was agreed by the Respondent and there was no need for Mr S to be cross-examined.
The Respondent relied on the following:
a)his affidavit of 16th July 2013; and
b)his Financial Statement, which was undated but filed on 30th July 2013.
The Respondent gave oral evidence and was cross-examined by Counsel for the Applicant, Mr Kenny.
The parties provided written submissions after the hearing. The submission on behalf of the Respondent Husband was filed on 30th August 2013; the submission on behalf of the Applicant wife was filed on 3rd September 2013.
Just and Equitable
The parties in this matter have separated permanently and, although there is no evidence that they have been divorced, it is clear that the marriage between the parties is at an end. There are clearly, on the evidence, matters that need to be resolved between them. I am satisfied that it would be just and equitable to make orders resolving the property matters between the parties under s.79 of the Act.
The Property and Liabilities of the Parties
The Applicant’s legal advisers prepared a balance sheet for the purposes of the proceedings. It appears from the evidence to have been fairly accurate when it was prepared, although the liability owing by way of [T] vendor finance should be reduced from $90,000.00 to $70,000.00.
Non Superannuation Asset Pool
I find the non-superannuation assets to be:
a)The former matrimonial home in [Y], WA $400,000.00
b)Respondent’s cash $444.00
c)Respondent’s business $ 90,000.00
d)Respondent’s home contents $ 5,000.00
e)Applicant’s bank account $ 1,000.00
f)Applicant’s home contents $ 500.00
g)Applicant’s motor car $ 10,000.00
h)Applicant’s balance in solicitor’s trust account $12,000.00
Total$518,944.00
Liabilities
I find the parties’ liabilities to be:
a)Mortgage on former matrimonial home $287,292.00
b)[T] vendor finance $ 70,000.00
c)Applicant’s Visa Card balance $ 2,000.00
d)Amount owing to Applicant’s father $ 61,417.00
e)Applicant’s HECS debt $ 20,000.00
Total liabilities $440,709.00
By deducting the total liabilities of $440,709.00 from the total of the non-superannuation asset pool, being $518,944.00, I arrive at a net total of $78,235.00.
Superannuation
I find the parties’ superannuation to be:
a)Applicant’s superannuation balance $ 398.00
b)Respondent’s superannuation balance $ 21,690.00
Total superannuation $ 22,088.00
By adding the total of the parties’ superannuation entitlements, namely $22,088.00, to the net total of the non-superannuation asset pool, being $78,235.00, I arrive at a total of $100,323.00.
Accordingly, I find the net asset pool to be $100,323.00.
The Parties’ Contributions
The Applicant deposed that she brought into the marriage an amount of $6,000.00, being the proceeds of sale of a motor car. She applied that money towards the purchase of a car in Perth, although that vehicle was damaged, and apparently written off, in a collision. She received an insurance payout of $5,000.00, which she applied toward the purchase of a Mazda 2 car that cost $7,000.00. The balance of $2,000.00 she contributed from her own savings. She deposed that in addition to the motor car that she owned in Adelaide, she also had savings of $7,000.00.
It is the Applicant’s case that her father made substantial contributions to the parties both before and during the marriage. She deposed that her father paid the sum of $12,000.00 for the couple’s engagement party in Adelaide and a gold ring for the Respondent, which he still retains. The Applicant’s father also purchased an amount of jewellery which should have been purchased by the Husband. The father did so on the basis that the Respondent would repay him, but the Applicant claimed he never did.
The Applicant also deposed that her parents purchased “a significant amount of furniture” for the parties when they commenced cohabitation in Perth.[5]
[5] Affidavit of Ms Popovic 30.7.2013 at paragraph [9]
The Applicant deposed that she paid to the Respondent the sum of $7,000.00 for the expenses of the traditional wedding ceremony in [I]. The Applicant stated that:
It is [country omitted] tradition that the bride pays for the engagement party and the groom pays for the wedding. However, I provided the funds in the amount of $7,000.00 to the Husband to pay the wedding expenses.[6]
[6] Ibid at [7]
The Applicant also deposed that the parties received cash in the sum of approximately $12,000.00 and 10 gold coins worth at least $5,000.00 as wedding gifts at the wedding in [I], all of which the Respondent kept and, inexplicably, gave to his father the next day.
The Applicant deposed that during the period of time that the parties were together she was the one who did most of the cooking and housework.
There was an incident between the parties in July 2009 when the Applicant claims that the Respondent hit her. She called the Police. The Respondent moved out of the matrimonial home for 72 hours and she moved out and lived in a hotel for four weeks. During that time, her parents attended at the home and retrieved most of the items of jewellery purchased by her father. They subsequently sold those items.
The Applicant deposed that she sought legal advice from a firm of solicitors in Perth. Her father lent her the sum of $1,584.00 to pay their costs. Her father also lent her other amounts, including the sum of $12,000.00, which has been placed in her solicitors’ trust account.
It was put to the Applicant in cross-examination by Mr Martin, who appeared for the Respondent, that over the period of three and a half years that the parties were together, she worked as a casual [omitted] and spent her earnings, about $150.00 per week, on herself. She denied that suggestion, saying that she bought groceries with the money.
The Applicant denied that the Respondent supported her during the marriage. She denied that the Respondent did the cooking for them, saying that the Respondent was at work all the time and did not know how to cook in any event.
The Applicant confirmed that her father paid for the furniture in the property. She also said that she paid for her own petrol.
The Applicant was cross-examined about the cost of the parties’ wedding in [I]. She denied that the Respondent paid at least three-quarters of the cost, saying that he probably paid about $7,000.00. When asked if the Respondent had paid the sum of $15,000.00, the Applicant said that she did not believe that figure.
The Applicant said that she was studying for the degree of Bachelor of [omitted], which she expected to complete by the end of the year. She hoped to work in a [omitted] in the next year.
The Applicant’s father confirmed the payment of the amounts as deposed in his daughter’s affidavit. He deposed that he made various loans to his daughter after the parties had separated, mainly for legal fees.
The Applicant’s father said in cross-examination that he paid $2,000.00 from his pocket for the parties’ wedding ceremony. He gave it to the Respondent as a gift. He also paid $6,000.00 for jewellery for his daughter for the wedding. He also paid expenses for his daughter such as her books for her university course. He paid over $1,000.00. He was not asked for that money by the Respondent but he assumed that his daughter was not getting financial help. He also confirmed that the Applicant was paying the cost of petrol for her car.
The Respondent deposed in his affidavit that, contrary to the Applicant’s claim, he paid the sum of $30,000.00 for the parties’ [country omitted] wedding ceremony and their honeymoon trip to [omitted]. He claimed that he had borrowed $15,000.00 of that money from his family in [I].
The Respondent also deposed that he bought the Applicant two sets of jewellery at a cost of $15,000.00. He stated that they also received some gold coins from family and friends as wedding gifts which he sold to the Applicant’s uncle for $2,000.00. This money was spent on the parties’ honeymoon in Dubai.
The Respondent conceded that he and the Applicant separated twice in the three years of their marriage, once for two months in 2009, and the second time when they separated permanently in June 2011.
The Respondent deposed that he purchased the property in Property Y for $400,000.00 in June 2007, prior to the parties’ marriage. The purchase price was $398,000.00, of which he borrowed $318,000.00 from the National Australia Bank and a further $98,481.00 from his father. He stated that he still owed his father $68,481.00.
The Respondent deposed that he was the one who bought most of the furniture for the home during the marriage and that he bought purchased a Ford Laser motor car for the Applicant in or about May 2008 at a purchase price of $6,500.00.
The Respondent also claimed that the parties made equal non-financial contributions. He helped with cooking and cleaning and would buy fast food for dinner on a number of occasions during the week.
After the parties separated, the Respondent purchased a 3% interest in a partnership called [T] for $90,000.00 through a Vendor Finance Loan Agreement. He currently pays $1,000.00 a month on that loan. He also obtained finance to pay his outstanding tax bill of $17,530.45 and make a partial payment to his father. He also made a further payment of $30,000.00 towards the loan from his father on 24 April 2013.
The Respondent was cross-examined by Mr Kenny of Counsel, for the Applicant. In his evidence the Respondent claimed that the various receipts from a gallery in [T] addressed to the Applicant’s father for items of jewellery were in fact fraudulent. He said the gallery, called the [omitted] Gallery, belonged to the Applicant’s uncle.
The Respondent claimed that the Applicant and her father had together perpetrated a fraud in respect of these items and that the receipts had been faked. He was asked why his lawyer did not challenge the Respondent’s uncle about these matters when he gave evidence but was unable to provide a satisfactory answer. He claimed that he had put that allegation in his affidavit. However, neither the Respondent’s affidavit of 3rd December 2012 nor his affidavit of 16th July 2013 makes any mention of these allegations.
I found the Respondent’s evidence on this issue to be less than credible.
It was submitted on behalf of the Applicant that the Respondent provided extremely limited funds to her during the marriage and, as a result, she was forced to rely heavily on her father to send amounts of money which were used for day to day living expenses. The Applicant annexed to her affidavit copies of records from her NAB Flexi Account for the period 14th March 2008 to 4 February 2013, showing substantial and regular deposits of funds from her father. In addition, the Applicant’s parents paid $12,000.00 for the engagement party in Adelaide, purchased furniture for the property in Perth, paid the sum of $3,000.00 towards the purchase of a motor car for her in Sydney and paid her legal fees during the marriage.
The Respondent’s solicitor submitted that the Applicant was not a credible witness. He submitted that the Applicant came into the marriage, which was a short marriage, with very little in the way of assets. The main asset, the property at Property Y, [Y], had been purchased by the Respondent prior to the marriage.
Mr Martin for the Respondent referred the Court to the decision of the Full Court of the Family Court in Quinn & Quinn[7], where Evatt CJ (with whom Asche SJ and Ross-Jones J agreed) held:
The fact that the marriage was of short duration, in the circumstances of this case in my view does give some added weight to the capital contribution which the wife made to the acquisition of this home, as against the contributions which the husband made from his income and earnings during the marriage. That is, because the marriage was of such short duration, the asset in question to a large extent could be seen not as an asset accumulated from the efforts of the parties during the marriage but still largely an asset brought into the marriage by the wife.[8]
[7] (1979) FLC 90-677
[8] Ibid at 78,613-78,614
It is submitted on behalf of the Applicant that the Respondent had not been full frank in disclosing his financial situation (see Weir & Weir[9]). The evidence in support of this proposition comes from the Respondent’s cross-examination.
[9] (1992) 16 Fam LR 154; (1993) FLC 92-338
First, whilst the Respondent claimed in his Financial Statement that the amount he owed by way of loan from [T] Pty Ltd was $90,000.00. However, when challenged in cross-examination, the Respondent conceded that the loan must have been significantly lower and may have been in the order of $70,000.00 to $80,000.00. I have used the figure of $70,000.00 in calculating the value of the asset pool.
Second, during his cross-examination the Respondent gave conflicting evidence about whether he owed property in [I] prior to the marriage. It was submitted that originally he said that he did not own any home in [I] but later gave evidence that he owned a home in [I] with his father and brother.
Third, it was submitted that the timing of the repayments said to have been made to the Respondent’s Father was “curious”, in that the Respondent claimed to have paid $10,000.00 to his father at a time coinciding with the parties’ separation and he made a further payment of $30,000.00 via his brother only a few weeks before the trial. There was no evidence of any demand for repayment having been by the Father at any time during the duration of the loan, a proposition with which the Respondent agreed.
Further, it was submitted that the Respondent had not disclosed any interest in a trust which may be known as the Rossi Trust. The Respondent revealed in cross-examination that he had an interest in the trust and conceded that he had produced no documents in respect of this Trust.
This is not a matter where it is easy, if possible at all, to assess the parties’ contributions on a percentage basis. The marriage was of short duration, from 14th March 2008 to July 2011, a period of some three years and four months.
The Respondent’s initial contribution to the marriage was the property at [Y], valued at $400,000.00, subject to a substantial mortgage. The amount owing at the date of hearing was $287,292.00. The Applicant’s initial contribution was significantly less, being a motor car and some cash. In addition, the Applicant’s father made significant advances of cash and provided the bulk of the furniture in the parties’ home.
During the marriage, the Respondent was in employment whilst the Applicant was a student. The Applicant claims that the Respondent paid very little toward the expenses of the family home and that she was obliged to rely on her father for ongoing financial support.
The Applicant claims that she performed the major part of the non-financial contributions toward the running of the household, but the Respondent claims that their contributions in this regard were about equal.
I found that the Applicant and her father were credible witnesses. The Respondent was not a credible witness. His evidence in cross-examination, where he accused the Applicant and her father of fraudulent conduct in producing faked invoices for the jewellery claimed was quite unbelievable.
The Respondent’s claims in this regard emerged for the first time in his cross-examination. He made no mention of these sensational claims in either of his affidavits and these allegations were not put to the Applicant or her father when they were cross-examined.
The failure of the Respondent to either make those claims in his affidavit material or put those allegations to the Applicant and her father in cross-examination can only be explained in one of two ways:
a)Either the Respondent’s solicitor omitted to include this evidence in the affidavits and omitted to cross-examine the witnesses in some inexplicable oversight; or
b)The Respondent’s solicitor was not aware that this evidence was to be given by his client in his oral evidence.
The first explanation can be dismissed at once. There is no evidence in the way that the Respondent’s solicitor conducted his client’s case that would support the proposition that he would have been responsible for such egregious omissions.
It appears to be far more likely that the Respondent’s solicitor was unaware that his client was going to give that evidence, which would explain why this evidence was never given in chief or put to the witnesses in cross-examination.
It is for this reason that I am satisfied that the Respondent was not a credible witness. Where his evidence differs from that of the Applicant or her father, I prefer the latter.
There is another matter that throws doubt on the credibility of the Respondent’s evidence. The Applicant’s evidence is that she was studying for the degree of Bachelor of [omitted] in Adelaide but ceased that study in July 2008, when she moved to Perth. She did not recommence her studies until 2012. She deposed that after she moved back to Adelaide after the separation:
I was not able to re-enrol in my [omitted] studies in Adelaide. I gained admission to a [omitted] course in [omitted], Sydney, which I accepted and commenced in 2012. I am due to complete the course at the end of 2013.[10]
[10] Affidavit of Ms Popovic 30.7.2013 at [19]
However, the Respondent deposed in his affidavit that he and the Applicant made equal non-financial contributions, because:
The Applicant was a student and she spent most of her time in University. She did not have much time to cook and clean the house during the week and accordingly I had to help with the cooking and cleaning duties.
The evidence is that the Applicant was not a student enrolled in a course at that time. In her affidavit she deposed that she “worked whilst studying in Perth”.[11] She said in cross-examination that she worked as a casual [omitted] and earned about $150.00 a week. She used that money to buy groceries.
[11] Ibid at [35]
It may be the case that the Respondent has not made a full disclosure of an interest in real estate in [I] or in some form of a family trust. It is well-nigh impossible to quantify what the value of these interests may be. I accept the Applicant’s evidence.
It is for this reason that the Applicant’s counsel refers the Court to the in Weir & Weir, where Nicholson CJ, Strauss and Nygh JJ held:
It is clear enough from his Honour’s findings in the present case that the husband had not done so and had in fact pocketed the proceeds of a substantial number of cash sales. It is obvious that in most cases of this nature it is difficult enough for the other party to establish that fact let alone establish the quantum of what has been taken.
It seems to us that once it has been established that there has been a deliberate non disclosure, which follows from his Honour’s findings in this case, then the court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
…We should have thought that the court’s jurisdiction to make an order going beyond the identified property arises once there is sufficient evidence to support a finding that the party has not made a full disclosure of his or her assets.[12]
[12] 16 Fam LR 154 at 158; FLC 92-338 at 79,593
Allowing for the limitations referred to by their Honours in Weir, it appears that the Respondent has in some respect failed to make a full and complete disclosure of his financial situation. This, combined with the Court’s findings about the Respondent’s credibility, permit the Court to make a bolder finding about contributions than might otherwise have been the case.
I accept the evidence of the Applicant as to the parties’ contributions. The net asset pool has been assessed at a comparatively modest figure of $100,323.00. I find the contributions favour the Respondent as to 60% to 40%.
The effect of any proposed order upon the earning capacity of either party
Subsection 79(4) requires, at paragraph (d), that the court consider the effect of any proposed order upon the earning capacity of either party to the marriage. The proposed orders will not have any effect upon the parties’ earning capacity.
Relevant matters referred to in subsection 75(2)
The Respondent’s solicitor submitted that the Court should make no adjustment in favour of the Applicant, as:
…the Wife lived in the home of the Husband in the 3 years they co-habited and did not contribute financially to the household as she studied and did not work during this period, thus it is submitted on behalf of the Husband that given the lack of financial contribution by the Wife the Court should make no adjustment in favour of the Wife.[13]
[13] Written Submissions on behalf of the Respondent Husband pag7
The submission misstates the evidence, as there is clear evidence that during that period the Applicant did work part-time as a [omitted] and earned about $150.00 per week. It was her evidence, uncontradicted, that she used that money to buy groceries.
The Respondent relies on the decision of Bushby & Bushby[14], a decision of the Full Court of the Family Court where it was held that although the wife had made a contribution over four years by way of being the homemaker, to leave the parties as they were at the time of the separation would have produced a just and equitable result. Neither party should have left the marriage with any further benefit than that which they had already received.
[14] (1988) FLC 91-919
In my view, the decision in Bushby can be distinguished on its facts.
The Respondent also relied on the decision of Richter & Maguire[15], a decision of Brown FM[16]. Curiously, Mr Martin submits that this decision involved “a marriage of approximately 4 years where the husband had made the substantial contribution to the Asset Pool, His Honour (Judge) Brown held that each party should keep their respective assets and no adjustment be made under s 75(2)”.[17]
[15] [2008] FMCAfam 214
[16] Now Judge Brown
[17] Written Submissions on behalf of the Respondent Husband page 7
With respect, this is not a correct description of the ratio of the case at all. The decision in Richter & Maguire concerns an application for urgent interim spousal maintenance under s.77 of the Act and does not deal with s.75(2) adjustments of property proceedings at all. It can clearly be distinguished.
The Applicant was born on [omitted] 1984. She is aged 29 years and 10 months. She appears to be in good health.
The Respondent was born on [omitted] 1977. He is now 37 years and 3 months old. He appears to be in good health.
The Applicant was in her final year of a [omitted] degree and expected to be in employment at a [omitted] in 2014. The Respondent is in employment, earning considerably more than the Applicant.
It is submitted on behalf of the Applicant that the Respondent has a foundation in the Australian metropolitan housing market because he owns a home unit in Perth, whilst the Applicant does not own a home in Australia. The Respondent is also an equity owner in a business.
However, the Respondent owned the home before the parties’ comparatively short marriage. His initial contribution to the matrimonial assets was significantly higher than that of the applicant.
Neither party has the care or control of a child of the marriage under the age of 18 years. There are no child support issues. Neither party has any duty to maintain any other person.
Neither party is cohabiting with any other person.
It is submitted that the Applicant was a student at the time of the commencement of the marriage and the completion of her studies has been considerably delayed by virtue of the marriage. It is a consideration under s.75(2)(k) that the Court should consider:
the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration.
The evidence appears to be that the Applicant was studying for her degree in Adelaide but ceased her studies in July 2008 after her marriage in March of that year. She did not resume her studies until after the parties separated, when she started at the University [omitted], Sydney, at the beginning of 2012.
It would appear that the Applicant was unable to study for a qualification in [omitted] for the years 2009 to 2011 inclusive, which would mean that there was a delay of three years in her obtaining her qualifications.
There is no evidence as to what the Applicant’s current earnings are, or what she would have earned if she had completed her studies on time, but in my view there should be an adjustment of 5% in the Applicant’s favour. In my view, this will mean that the Respondent should pay to the Applicant a sum equivalent to 45% of the net asset pool. The net asset pool has been calculated at $100, 323.00, so the amount payable by the Respondent will be $45,145.00, rounded down to the nearest dollar.
I note that the applicant does not now press her application for the retrieval of furniture from the former matrimonial home in Western Australia.
Spousal Maintenance
The Applicant Wife seeks an order for spousal maintenance in the sum of $250.00 per week until 31st December 2013. That time has passed. The Applicant’s evidence is that she was in the final year of a [omitted] degree at the University [omitted], Sydney, and she expected to graduate at the end of 2013. She deposed that she was studying full time and had classes or practical training sessions every day. She also needed to study and prepare written work on evenings and weekends.
Section 72 of the Family Law Act 1975 provides at subsection (1):
A party to a marriage is liable to maintain the other party, to the extent that the first mentioned party is reasonably to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) any other adequate reason.
I am not satisfied that the Applicant has made out a case for spousal maintenance for a limited period of time. She does not have the care of a child of the marriage and she is not unable to support herself adequately by reason of age, physical or mental incapacity. She may have been unable to work during the time that she was completing her degree, but the evidence suggests that she has finished her studies and, presumably, she has obtained employment in a [omitted].
The Application for Spousal Maintenance will be dismissed.
Property Orders
I propose to order that the Respondent should pay to the Applicant by way of settlement of property the sum of $45,145.00 within one month, together with interest on that sum from the due date, as prescribed by section 117B of the Act. If he defaults in payment, an order will be made to sell the property at Property Y, [Y].
I note that the Applicant seeks an order that if either party refuses or neglects to sign any necessary document, then;
a Registrar or such other officer or person as may be appointed by the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law act to execute such documents on behalf of such party.
I cannot see any reason why the Federal Circuit Court should make an order providing that the Family Court should appoint a Registrar to sign documents to give effect to an order of this Court. I have no doubt that, with respect, the Family Court has quite enough to do without being asked to enforce this Court’s orders.
This Court has its own Registrars who serve the Court well.
I also note that the Applicant seeks an order that, if the Respondent fails to pay the amount ordered, then the former matrimonial home is to be auctioned by an auctioneer as agreed between the parties or as nominated by the President of the Real Estate Institute of New South Wales. As the property is located in Western Australia, it would seem to be more appropriate for the nomination to be made by the President of the Real Estate Institute of Western Australia.
If a party seeks costs, an application should be made within 28 days.
Just and Equitable
The last thing to consider is, again, whether it is just and equitable to make the proposed orders in all the circumstances, as required by subsection 79(2). I am so satisfied.
I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 7 July 2014
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