QIAN & DING

[2015] FCCA 118

FEDERAL CIRCUIT COURT OF AUSTRALIA

QIAN & DING [2015] FCCA 118

Catchwords:
FAMILY LAW – Property settlement – where valuations are in issue – where the husband has not complied with procedural orders – where the wife wants the family home sold and the husband wants to retain it.

Legislation:

Family Law Act 1975, ss.75, 79

Stanford v Stanford (2012) FLC 93-495
Bevan & Bevan [2013] FAMCAFC 116

Applicant: MS QIAN

Respondent: MR DING

File Number: MLC 7282 of 2012

Judgment of: Judge Small

Hearing dates: 3, 4 and 19 September 2014

Date of Last Submission: 19 September 2014

Delivered at: Dandenong

Delivered on: 28 January 2015

REPRESENTATION

Counsel for the Applicant: Mr D. E. Goddard

Solicitors for the Applicant: Portelli & Co

Counsel for the Respondent: Ms La Greca, Solicitor on 4 September 2014

The Respondent In Person – 3 September 2014 & 19 September 2014

ORDERS

1. Within 30 days of the date of these orders (“the due date”) the husband shall pay to the wife the sum of $343,440 (“the payment”).

2. Contemporaneously with the payment the wife shall do all such acts and things and sign all such documents as may be necessary to transfer to the husband at the expense of the husband all her right title and interest in the property situated at and known as Property B in the State of Victoria (“the real property”) (“the transfer”).

3. Contemporaneously with the transfer the husband shall discharge the mortgage currently encumbering the real property and forever indemnify the wife against any and all liability for the said mortgage.

4. In the event that the husband does not make the payment by the due date, the real property shall be sold altogether out of court (“the sale”), and the net proceeds of the sale shall be distributed as follows:

   (a)First to pay all costs and commissions of the sale;

   (b)Second to discharge the mortgage held over the real property;

   (c)Third so much of the payment as is outstanding to the wife, together with interest at the rate of 8.5% per annum from the due date to the date of payment;

   (d)Fourth to pay for any repairs or maintenance of the real property necessary to present it in a fit state for sale;

   (e)Fifth the remainder to the husband.

5. Pending the transfer or the sale the husband;

   (a)shall have the sole right of occupation of the real property and shall pay all mortgage and rates payments and pay all other outgoings of the real property as and when they fall due; and

   (b)is restrained by injunction from further encumbering the real property in any way save and only to comply with paragraph 3 hereof.

6. In the event that the real property is to be sold:

   (a)the wife shall have sole responsibility and authority for the conduct of the sale and shall appoint a real estate agent of her choosing to sell the real property; and

   (b)the husband shall ensure that the real property is kept in an appropriate state for sale and shall be responsible for any repairs, maintenance and the like which may be necessary to bring the real property to a fit state for sale, the decision about the necessity for such repairs and/or maintenance being the responsibility of the appointed real estate agent.

7. The wife shall retain her Toyota motor vehicle for her own use absolutely.

8. The husband shall retain his Holden motor vehicle for his own use absolutely.

9. Paragraphs 10 to 19 of these Orders are binding on the Trustee of (omitted) Super Fund (omitted) (“the Fund”).

10. The member spouse is the husband MR DING (“the member spouse”), member number (omitted).

11. The non-member spouse is the wife MS QIAN (“the non-member spouse”).

12. The base amount allocated to the non-member spouse out of the interest of the member spouse in the fund is $18,500 (eighteen thousand five hundred dollars) of the interest of the member spouse in the Fund (“the base amount”).

13. Pursuant to section 90MT(1)(a) of the Family Law Act 1975 (“the Act”) whenever a splittable payment becomes payable in respect of the interest of the member spouse in the fund, the non-member spouse shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount and there shall be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.

14. Paragraph 12 of these Orders has effect from the operative time which is four (4) business days after the date of service of a sealed copy of these Orders upon the Trustee of the Fund.

15. The Trustee of the Fund shall do all acts and things and sign all documents as may be necessary so that the Trustee, in accordance with the obligations set out under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, can calculate the entitlement of and make the payments to the non-member spouse in accordance with paragraphs 11 to 13 of these orders.

16. The member spouse is hereby restrained by himself, his servants or agents, from executing a Death Benefits Nomination in favour of any person or doing any act or thing that would render any part of his interest in the Fund to be “not a splittable payment” within the meaning of Regulation 12 or 13 of the Family Law (Superannuation) Regulations 2001, and the Trustee of the Fund shall give effect to this order.

17. The member spouse shall within fourteen (14) days of becoming entitled to receive a superannuation benefit from the Fund, provide to the Fund all such forms as shall be necessary to enable it to determine the nature and quantum of the superannuation entitlement, and any other related information it may reasonably require.

18. There shall be liberty to apply to each party and the Trustee in relation to the implementation of the orders affecting the superannuation interest.

19. Until such time as the superannuation split to the non-member spouse pursuant to these orders can be rolled over into a separate account to the wife:

    19.1the member spouse shall provide to the non-member spouse no less than 28 days’ notice before such time as he elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or in part his entitlement in the Fund.

    19.2the member spouse shall direct and authorise the Trustee of the fund to communicate with the non-member spouse and/or any person authorised by her in writing:

    19.2.1to answer any reasonable enquiries as may be made by her or on her behalf from time to time in relation to her entitlement in the fund; and

    19.2.2to provide to the non-member spouse and/or her authorised representative a copy of any notice of any application or request by the member spouse which seeks release of entitlements in the Fund insofar as that release may affect the non-member spouses entitlement in the Fund pursuant to these orders;

    19.3the member spouse by himself, his servants and/or agents is hereby restrained from doing any act or thing which would prevent the wife, her heirs, executors, administrators or nominees from receiving the benefits in the Fund to which she is entitled pursuant to these Orders.

20. In the event that the superannuation split to the non-member spouse pursuant to these orders can be rolled over into a separate account to the non-member spouse, each of the parties hereto shall do all acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.

21. Should the husband fail to sign any document necessary for the operation of these orders then pursuant to s.106A of the Family Law Act 1975 a Registrar of this Court is appointed to sign any such document/s on his behalf, and the Registrar shall be satisfied as to his or her authority to sign such documents upon the wife, or her solicitor, filing an affidavit setting out evidence of non-compliance of the husband.

22. Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

    (a)Each party being solely entitled to the exclusion of the other, to all other property (including choses-in-action) in the possession of such party as at the date of these Orders. The furniture, personal possessions and like chattels in the real property are considered to be in the possession of the husband;

    (b)Each party forgo any claim they have to any superannuation benefits belonging to or earned by the other;

    (c)Insurance policies remain the sole property of the beneficiary named therein;

    (d)Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;

    (e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

AND THE COURT NOTES

A.That pursuant to Section 81 of the Family Law Act 1975 the parties intend that these Orders shall as far as practicable finally determine the financial and other relationships between them and avoid further proceedings between them.

B.That the Trustee of the (omitted) Super Fund has been afforded procedural fairness in relation to these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7282 of 2012

MS QIAN

Applicant

And

MR DING

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a property settlement dispute arising from the breakdown of the marriage between Ms Qian (“the wife”) and Mr Ding (“the husband”).

2. The parties have two children, X born (omitted) 1999 and Y born (omitted) 2001, and they were able to agree on parenting arrangements during the course of the proceedings, with final parenting orders being made on 8 November 2013.

3. In these circumstances I shall refer to the parenting proceedings and their outcome only insofar as that outcome is relevant to the question of any property settlement between the parties.

4. The issues in this case are therefore those usually pertaining to marital property settlements under the Family Law Act 1975 (Cth) (“the Act”):

   A.What are the property interests of the parties and what is the value of that property?

   B.Is it just and equitable in all the circumstances to alter those interests?

   C.If it is just and equitable to do so what are the contributions of the parties to the property of the marriage?

   D.Should there be any adjustment made to the contribution-based entitlements by reason of the matters set out in s.75(2) of the Act?

   E.In light of those findings what orders should be made to produce a just and equitable settlement between the parties?

Background

1. The parties met in (omitted) in 1997 and began living together shortly thereafter. They married on (omitted) 1998 and finally separated on 26 May 2011. They were divorced on 25 September 2012.

2. As already stated they have two children. Pursuant to the final parenting orders made on 8 November 2013, the children live with their mother for nine nights per fortnight and their father five nights per fortnight, with school holidays being shared between the parents.

3. The family home at Property B (“the family home”) was purchased in (omitted) 1999 for $180,000. The purchase price was met by the wife’s savings (according to the wife) or the husband’s savings (according to the husband) and a mortgage loan of unknown quantity. The husband has remained living in the family home since separation and the mortgage debt has increased from $191,167 to $210,429 in that time.

4. The wife wants the family home to be sold and the proceeds divided between the parties as the court deems appropriate.

5. The husband wishes to retain the family home.

6. During the marriage the parties bought and operated two businesses: a (business omitted) in (omitted) which operated for six months in 2006 whose purchase price was met from an extension to the parties’ home loan and which resulted in a $30,000 loss to the parties; and a (omitted) business in (omitted) which was purchased for $220,000 in August 2007, that purchase price too being met from an extension to the parties’ home loan. This business did not thrive after the breakdown of the marriage, being sold in July 2012 for $100,000. It was the husband’s evidence at trial that he had placed $88,000 of that sum back into the mortgage on the family home.

7. In 2002 the wife undertook a course of study which was funded from the parties’ joint funds. The husband, however, did not agree with the wife studying as he did not believe her suitable for the particular course of study undertaken, and he sought credit at trial for having paid for that study from what he saw as his own funds.

8. The wife works as a (occupation omitted) in a (employer omitted) and has repartnered.

9. The husband is self-employed as a (occupation omitted) and has not repartnered.

Procedural History

1. The wife filed an Initiating Application on 12 December 2012 seeking parenting and property orders.  The property orders sought included the sale of the family home, with the net proceeds to be divided as the court deemed appropriate.

2. She further sought an order that the husband be solely responsible for all payments of arrears in relation to the mortgage and that there be a “superannuation adjustment of the husband and wife’s respective superannuation interests in such proportions as to this Honourable Court shall seem appropriate”.

3. The proceedings first came to court in the Duty List on 11 February 2013 before Federal Magistrate Curtain (as His Honour then was). His Honour ordered the parties to attend a Conciliation Conference in relation to the financial matters.

4. On 4 March 2013 the husband filed his Response seeking orders for the sale of the family home with him having a priority option to purchase it and the wife paying all the costs of sale. He sought a division of the net proceeds of sale between the parties “in such proportions as to this Honourable Court shall seem appropriate” and “that there be a superannuation adjustment of the father and the mother’s respective superannuation no (sic) interests in such proportions as to this Honourable Court shall deem appropriate”.

5. On 8 April 2013 the husband filed an Amended Response with further provisions in relation to parenting matters only.

6. On 17 May 2013 the husband filed a further Response to the Initiating Application seeking the sale of the family home to the husband at a purchase price of $625,000, the discharge of the mortgage and the balance being divided between the parties in such proportions as the Court deems appropriate.

7. On 22 May 2013 the wife filed an Application in a Case seeking the Husband’s Response be struck out and the Wife have leave to proceed on an undefended basis.

8. On 3 June 2013 the parties attended a Conciliation Conference before Registrar Kaur. The conference did not lead to settlement due to there being no joint or agreed valuation.  

9. On 3 June 2013 the parties also appeared in the Duty List before Judge Curtain following the Conciliation Conference. His Honour ordered that the parties promptly arrange for the valuation of the family home.

10. On 9 September 2013 the matter returned to the Duty List before Judge Curtain where the matter was set down for trial on 8 November 2013.

11. On 8 November 2013 the proceedings came before me for the first time for Final Hearing. As has previously been stated the parties signed final consent orders on that day in relation to parenting matters. The property proceedings, however, were not ready to proceed and those matters were adjourned to 3 February 2014 for Mention.

12. On 3 February 2014 the Mention proceeded before me with the parties once again being ordered to obtain sworn valuations in relation to the family home, and a further Final Hearing was set down for 3 September 2014.

13. The trial began on 3 September 2014 with the husband representing himself and the wife being represented by counsel. The wife gave evidence and was cross-examined by the husband.

14. On the second day of trial, 4 September 2014, the husband was represented by a solicitor, Ms La Greca, who he had engaged the previous evening. Ms La Greca conducted further cross-examination of the wife and after the husband had given evidence and been cross-examined, she then sought an adjournment before conducting a re-examination of the husband. In circumstances where she had been engaged only the previous evening, that application was granted and the trial was adjourned for a further day on 19 September 2014.

15. On that day the husband was again self-represented and the trial proceeded to its conclusion despite an application by the husband for an adjournment so that he could seek further legal representation. I reserved my decision.

The Issues and the Evidence

A. What are the property interests of the parties and what is the value of that property?

1. The major asset of the parties is the family home at Property B. The issue of the value of that property took up much court time both at interim hearings and at trial.

2. The parties were ordered to have the property valued at the first return date on 11 February 2013, and again on 3 June 2013. The wife complied with those orders.

3. Further orders made on 8 November 2013 provided for the husband to consult with the wife’s valuers in relation to their sworn valuation on or before 30 November 2013. He did not do so.

4. On 3 February 2014 orders were made in the following terms:

   1.   If the parties are able to agree on a valuation for the property at Property B then no later than 1 August 2014 the parties confirm in writing and file with the court such agreement by an appropriately qualified person as to the current market value of Property B.

   2.   In the event that a joint single valuation cannot be agreed as per Order 1, then each party forthwith do all acts and things necessary to obtain a valuation by an appropriately qualified person and thereafter, the parties or their lawyers are to ensure that the experts confer with each other on or before 15 August 2014 to agree on a sworn valuation.

5. Correspondence attached to an affidavit sworn by the wife’s solicitor on 28 August 2014 and filed 29 August 2014 reveals multiple attempts on the wife’s behalf to comply with the orders of 3 February 2014.

6. That correspondence makes clear that the parties did not agree on the value of the family home. More particularly, it reveals that the husband advised the wife’s solicitors on 26 July 2014 that his valuer would contact the wife’s valuer in order to confer.

7. Further correspondence reveals attempts by the wife’s solicitors to get the husband to have his valuer confer with the wife’s valuer, those attempts culminating in an email from the wife’s valuer to the wife’s solicitor on 20 August 2014 in the following terms:

   Please advise Mr G that when I got through to the other valuer today, he advises that his client has forbidden him to talk to me. He appears frustrated. I await further instructions, but I will be absent from the office next week.

8. There was ultimately no conference held between valuers and the husband did not file any sworn valuation of the family home before trial on 3 September 2014. He attempted during the first two days of the proceedings to challenge the sworn valuation filed by the wife on 18 August 2014, but as he is not a valuation expert I declined to accept that evidence.

9. As has been stated above the matter was then adjourned for a further day’s hearing on 19 September 2014. The husband filed a sworn valuation of the family home on 18 September 2014. In circumstances where he had been given multiple opportunities to challenge the wife’s valuation, I declined to accept his sworn valuation, but note that it valued the family home at $700,000.

1. It was made clear to all parties that the valuation of the family home would be taken as $750,000 for the purposes of the proceedings as that is the value contained in the sworn valuation filed on behalf of the wife on 18 August 2014.

2. The husband currently has $37,962 in superannuation entitlements. It was his evidence at trial that at least $7000 and perhaps as much as $10,000 of that sum was accrued before the relationship began. However, he was unable to provide any documentary evidence in support of that claim, and given my concerns about the credibility of his evidence overall as stated later in these reasons, I am not prepared to give him the benefit of the doubt on this issue.

3. I therefore take the husband’s superannuation entitlements for the purposes of this property settlement as being worth $37,962.

4. There is no dispute about the quantum of the wife’s superannuation entitlements.

5. The property of the parties can be described as follows:

   Assets

   The family home registered in joint names             $750,000

   The husband’s Holden motor vehicle  $12,500[1]

   [1] This is the average of the parties’ estimates of value, there being no sworn evidence of the vehicle’s value.

   The wife’s Toyota motor vehicle  $7,400[2]

   Furniture and chattels  $6,000

   Total assets  $775,900

   Liabilities

   Mortgage secured over the family home                 $191,167[3]

   Nett assets (excluding superannuation)             $584,733

   Superannuation

   Husband  $37,962

   Wife  $10,693

   Total superannuation  $48,655

   [2] As for Footnote 2.

   [3] I note that the mortgage stood at $210,429 at the time of trial. The husband is found to be responsible for the increase. See paragraphs 72 and 73 of these reasons.

B. Is it just and equitable in all the circumstances to alter those interests?

1. The law in relation to property settlements between parties to a marriage is found in Part VIII of the Family Law Act 1975 (“the Act”), and more particularly in s.79.

2. Section 79(2) of the Act states that the court must not make an order under this section (that is, an order altering the property interests of the parties) unless it is satisfied that, in all the circumstances, it is just and equitable to do so.

3. In relation to that section, in Stanford v Stanford[4], the High Court made clear that the determination of whether it is just and equitable to alter the parties’ property interests must be made before any consideration of the matters set out in s.79(4) is undertaken.

   [4] Stanford v Stanford (2012) FLC 93-495

4. In Stanford the High Court further said, at paragraph 42:

   In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and the wife.

5. In Bevan & Bevan the Full Court said that the circumstances described in the above passage of the Stanford judgment “encapsulate the vast majority of cases”[5] .

   [5] Bevan & Bevan [2013]FAMCAFC 116 paragraph 70

6. In this case, the parties were in a relationship and marriage for about 14 years. It was the first marriage for either party and there are two children of that marriage. I therefore consider that their circumstances fall within the vast majority of cases as stated in Stanford and Bevan.

7. As set out above, the parties have interests in property.

8. It is clear that there cannot be common use of that property now that the marriage is over.

9. In those circumstances, I find that it is just and equitable in all the circumstances for there to be an alteration in the parties’ interests in their property.

C. If it is just and equitable to do so what are the contributions of the parties to the property of the marriage?

1. At the commencement of the relationship the husband had savings in a bank in China of approximately $38,000, of which about $30,000 I find was applied to the purchase of the family home.

2. The wife had accumulated about $7000 in savings which, I find, were also applied to the purchase of the family home.

3. Both parties worked full-time or part-time during the marriage and both had considerable periods of unemployment during which the family relied on Centrelink payments.

4. Finance for the purchase of the two businesses operated by the parties was obtained by extending the mortgage over the family home. Each party blames the other for the failure of both businesses, in which both parties were employed for most of the time during their operation. There being no corroborative evidence on either side, I make no finding in relation to that matter.

5. The wife performed the majority of the homemaker and parent contributions assisted by the husband. I note that the husband took care of the children and the home for some months in 2011 while the wife travelled to China.

6. Significant renovations were carried out on the family home during the marriage and it is the husband’s evidence that he personally conducted the work on those renovations save for a payment of $1000 to a friend who assisted him. The wife’s evidence is that while the husband performed some of the labour, most was performed by qualified tradesmen.

7. The husband’s evidence in relation to his contribution to the renovations was, to say the least, difficult to believe. He has formal qualifications in the field of (omitted) but it was his evidence that he had performed sophisticated plumbing, electrical and carpentry work at the level of an experienced tradesman.

8. When asked how he had learned the skills necessary to perform that work he stated that he had watched other tradesmen and learned from them in that manner but gave no further detail.

9. The husband presented throughout the trial as unwilling to accept the wife’s contributions to the property of the marriage, as seeing the finances of the family as his own, and as exaggerating his own contributions in a highly self-serving manner.

10. His evidence also contained statements that indicated that he was prepared to equivocate or make bold statements unsupported by corroborative evidence in order to benefit his case.

11. For example, he alleged that the wife was being paid cash-in-hand for two of the four days that she worked in a (employer omitted) owned by her cousin, that she had been hiding money throughout the marriage, and that she was working more hours than she had stated in evidence. He gave no corroborative evidence in relation to the alleged cash-in-hand payments or the “hidden” money, and his evidence in relation to the wife’s working days was confined to his having seen her car at various of her cousin’s business premises on more than one or two days over an unspecified period.

12. A further example occurred during the husband’s cross-examination by the wife’s counsel.  He acknowledged that he had not filed tax returns with the Australian Taxation Office (“the ATO”) for the previous two years but that he had told the Child Support Agency that he estimated that he was earning $10,000 per year.

13. He was then shown a copy of an email which he had sent to the wife’s solicitor on 2 September 2014 which indicated that his bank account statements may not include “sent cash income”. He then further stated in the email “We do not like to ask or report ATO issue question during the hearing”. He acknowledged under cross-examination that he had attended the court at various times to watch other trials in order to familiarise himself with the court process in preparation for this hearing, and that he had heard a barrister threatening to report a litigant to the ATO for nondisclosure of cash income payments. I inferred from his answers that while he was happy to disclose about $200 per week of cash income as part of these proceedings, he did not wish that amount to be reported to the ATO as income.

14. Under further cross-examination he conceded that his two financial statements filed in these proceedings had disclosed an income considerably greater than $10,000 per year.

15. For these reasons, where the husband’s evidence conflicts with that of the wife, I prefer the evidence of the wife.

16. Overall then, the evidence shows that the husband made greater financial contributions to the acquisition of the family home in 1999, and the parties made equal financial contributions during the marriage. They shared homemaker and parent tasks with the wife perhaps making slightly greater contributions in that area.

17. It was clear to me at trial that the husband either did not understand or was unable to accept that monies earned by the parties and applied to joint purposes were to be considered equal contributions regardless of whose bank account was the source of payments.

18. It is the evidence of the wife, uncontradicted by the husband, that at the date of separation the mortgage loan stood at $191,167. Since that date the debt has increased to $210,429, a discrepancy of $19,262. The husband has had the benefit of living in the family home since separation while the wife lives in rented accommodation with her partner and the children. No doubt if the husband had been making payments on the mortgage since separation he would consider any reduction in the loan to have been a post-separation contribution on his part.

19. I therefore consider the increased debt of $19,262 to be the responsibility of the husband and the orders I make will apportion that debt accordingly.

20. Apart from the increased mortgage debt, I find that on balance the contribution based entitlements of the parties in relation to the property of their marriage are to be apportioned equally between them.

D. Should there be any adjustment made to the contribution-based entitlements by reason of the matters set out in s.75(2) of the Act?

1. Section 75(2) of the Act states as follows and I will consider and address each sub-section in turn.

2. Section 75 (2)(a) the age and state of health of each of the parties.

   The wife is 44 years old and the husband 53. There is no evidence of any health issues in relation to either party.

3. Section 75 (2) (b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment.

   The wife’s evidence is that she is in employment and earns $580 per week or $30,160 per year. There is no evidence before the court that she lacks any physical or mental capacity to continue working.

4. The husband is self-employed as a (occupation omitted) and at varying times has said that his income is $600 per week or $31,200 per year or that it is $10,000 per year. He admits that he receives some of that income cash-in-hand. While the work he currently performs is uncertain in terms of security there is nothing in his evidence to indicate that he does not have the physical or mental capacity for full-time employment.

5. The property pool to be divided between the parties is modest, although it was the husband’s evidence at trial that his parents would be able to lend him up to $500,000, sufficient funds for him to retain the family home at a valuation of $750,000. I take that evidence into account as evidence of financial resources available to the husband.

6. The wife has re-partnered although the court has no evidence of her partner’s financial circumstances save that at the time of swearing her financial statement on 31 October 2013, her partner was paying rent on her behalf of $425 per week. That too must be considered a financial resource in the hands of the wife, although it is significantly the less than that available to the husband.

7. Section 75 (2) (c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years.

   The two children of the marriage live with the wife for nine nights per fortnight and with the husband for five nights per fortnight. Those nights include weekends and weeknights for both parties. School holidays and special occasions are shared roughly equally between the parties. In other words the wife bears the greater burden for the care of the children.

8. Section 75 (2) (d) commitments of each of the parties that are necessary to enable the party to support:

   (i) himself or herself; and

   (ii) a child or another person that the party has a duty to maintain

   Each party must support him or herself and provide accommodation and facilities and other support for the children when they are caring for them.

9. Section 75 (2) (e) the responsibilities of either party to support any other person.

   There is no evidence that either party has a legal responsibility to support any other person. The wife has re-partnered but the only evidence before the court in relation to the financial circumstances of that relationship is that the partner supports the wife by paying her rent.

10. Section 75 (2) (f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

    (i) any law of the Commonwealth, of a State or Territory or of another country; or

    (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

    and the rate of any such pension, allowance or benefit being paid to either party

11. It is the husband’s evidence that at times when his business has not been thriving he has received support by way of Centrelink payments although there is no specific evidence of his current eligibility for such support, or of its quantum.

12. The wife deposes that she receives Family Tax Benefits of $48 per week while it is the husband’s evidence is that he does not receive Family Tax Benefits.

13. Section 75 (2) (g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable.

    As previously stated the property pool available for division between the parties in this matter is modest, consisting of the net equity in the family home, two motor vehicles, some furniture and chattels and some modest superannuation entitlements.

14. It is almost inevitable that the standard of living experienced by parties while they were together will not be achievable after separation unless they have significant income, which is not the case here.

15. It is unlikely that either party will have the resources to own a property outright as a result of these proceedings, and likely that any property owned will be substantially encumbered by mortgage debt. In all the circumstances of these parties, the court considers that to amount to a reasonable standard of living for them post-separation.

16. Section 75 (2) (h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income.

    No evidence was provided to the court in relation to this matter and I do not consider it relevant in these proceedings.

17. Section 75 (2) (ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant.

    Again there is no evidence before the court of the parties owing any debt other than the home loan secured by the family home and therefore I do not consider this fact relevant in these proceedings.

18. Section 75 (2) (j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party.

    I have found that the contributions of the parties to the property of the marriage was equal.

19. On balance I find that both parties have also contributed equally to the income and earning capacity of the other, although the husband claims that he has contributed to the wife’s earning capacity by way of payment of fees for her English study courses early in the marriage. I find that those fees were paid using joint monies and were for joint purposes.

20. Neither party appears to have contributed to the financial resources of the other as set out in paragraphs 65 and 66 of these reasons.

21. Section 75 (2) (k) 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 relationship and marriage between these parties lasted about 14 years. Both were employed either by third parties or in joint enterprises during the marriage and I cannot find that the length of the marriage has affected the earning capacity of either party.

22. Section 75 (2) (l) the need to protect a party who wishes to continue that party's role as a parent.

    Both parties wish to continue their role as a parent to their children. That is reflected in the shared care arrangements set out in the final parenting orders made on 8 November 2013. The children are now 13 and 16 years old and are approaching the age when they will be more independent from their parents in terms of their daily care.

23. The wife works almost full time and it cannot be said that either party’s wish to continue his or her role as parent needs to be particularly protected as part of this property settlement.

24. Section 75 (2) (m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation.

    I have already stated that the wife has re-partnered and that she and the children are living with her partner. However, apart from the evidence that her partner pays her rental expenses at the rate of $425 per week, the court has no information about the financial circumstances of that relationship.

25. Nevertheless, I infer from that information that the wife’s partner is working and that she therefore lives in a two-income household and I take that into account in deciding on a just and equitable settlement in these proceedings.

26. Section 75 (2) (n) the terms of any order made or proposed to be made under section 79 in relation to:

    (i) the property of the parties; or

    (ii) vested bankruptcy property in relation to a bankrupt party; and

    (naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:

    (i) a party to the marriage; or

    (ii) a person who is a party to a de facto relationship with a party to the marriage; or

    (iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

    (iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii)

    I propose to make an order which will allow the husband to retain the family home upon payment of a certain sum to the wife. That will give the husband the opportunity to continue a security of accommodation that the wife will not have.

27. There is no evidence before the court that either party is or has ever been bankrupted and this factor is therefore not relevant to these proceedings.

28. Section 75 (2) (na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

    The question of child support was canvassed in some detail at trial.

29. It was the wife’s evidence that the husband was not paying any child support because he had told the Child Support Agency that he only earned $10,000 a year and had therefore been assessed as not being liable to pay child support. Evidence tendered to the court confirmed that the husband had advised the Child Support Agency that his income is $10,000 per year.

30. The wife gave further evidence that the husband would sometimes agree to reimburse her for expenses paid for the children if she provided receipts to him but that those payments were intermittent, irregular and not in consistent amounts.

31. The husband gave evidence, supported by bank statements, showing that he had transferred varying amounts of money to the wife’s bank account, at least since January 2014, and that those amounts were for the support of the children, including private tutoring. Those amounts are significant and indicate that the husband is willing to support his children. However, in light of the evidence contained in the husband’s financial statements filed in these proceedings, the court can only take an adverse inference about the amount of income the husband declared to the Child Support Agency in November 2013.

1. The husband’s evidence at trial was that he would be prepared to pay any assessed child support through the Child Support Agency in the future.

2. Section 75 (2) (o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.

   The husband’s conduct during these proceedings cannot be ignored. He has had the benefit of remaining in the family home since the date of separation and has done everything possible to ensure that he remains there without having the property valued and without keeping the mortgage payments up to date.

3. He has provided conflicting evidence in relation to his income and has sought to delay these proceedings at every turn. The period between the wife filing her Initiating Application and the date of trial was almost 2 years, at least the second half of which was a delay caused by to the husband’s failure to comply with court orders in relation to the valuation of the family home.

4. The wife has been put to the expense of what must by now be considerable legal fees while the husband has represented himself save for being represented by a solicitor on the second day of trial.

5. The husband impressed as a man willing to stretch the truth of his evidence in order to benefit his position. He believes himself to be an expert in fields as diverse as property valuation, plumbing, electrical work and carpentry without having had any formal qualification or training in those professions.

6. There were several times during trial when I was forced to admonish him about his questioning of the wife on irrelevant matters and about his propensity to speak over both counsel and me. While his manner at trial was quite affable, his arrogance and contempt for the wife were palpable.

7. The wife impressed as a truthful and credible witness who has no faith in the husband’s word and who wishes these proceedings to conclude so that she can get on with her life.

8. While she clearly became frustrated with the husband under cross-examination, that frustration was in my view quite reasonable and understandable.

9. Section 75 (2) (p) the terms of any financial agreement that is binding on the parties to the marriage.

   There is no financial agreement binding upon the parties to this marriage.

10. Section 75 (2) (q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

    There is no Part VIIIAB financial agreement binding upon the parties.

11. Taking into account that the husband has access to far greater financial resources than the wife, that the wife has the slightly greater burden in relation to the care of the children of the marriage, and that the husband will have the opportunity to secure his accommodation, I find that it is appropriate to adjust the contribution-based entitlements of the parties by 10% in favour of the wife. That is, the property of the parties should be divided such that the wife receives 60% and the husband 40%.

E. In light of those findings what orders should be made to produce a just and equitable settlement between the parties?

1. I have already found that the husband should bear the responsibility for $19,262 of the parties’ mortgage debt.

2. I have therefore calculated the figures in relation to this property settlement as though the mortgage over the family home were $191,167.

3. In practice, the husband will be required to discharge the entire mortgage of $210,429, thus making him responsible for the extra $19,262.

4. In order to effect a property settlement whereby the wife receives 60% of the net assets and 60% of the parties’ joint superannuation entitlements, the wife should receive total assets worth $350,840 (being 60% of $584,733), plus a superannuation split of $18,500, (being 60% of $48,655, or $29,193, less her current entitlements of $10,693). That is, she should receive total assets and entitlements of $369,340.

5. She currently has assets of $7,400 in the form of her car, so the husband is required to pay her a cash sum of $343,440 in order for her to receive $350,840 worth of assets.

6. The husband should receive 40% of the assets (from which he must pay the residual mortgage debt of $19,262), and 40% of the total superannuation entitlements, being $19,462.  That is, he should receive total assets worth $214,631 (being 40% of $584,733, or $233,893, less the residual mortgage debt of $19,262) and superannuation entitlements of $19,462 (being 40% of $48,655). That is, he should receive total assets and entitlements of $234,093.

7. The husband will retain the family home subject to the mortgage of $210,429 and the payment to the wife of $343,440. He will also retain his Holden motor vehicle worth $12,500 and furniture and chattels worth $6,000.

8. Thus, the husband and wife will receive the following:

   Husband

   The family home  $750,000

   His Holden motor vehicle  $12,500

   Furniture and chattels  $6,000

   Superannuation entitlements

   after superannuation split to the wife        $19,462    

   ($37,962-$18,500)

   Sub-total  $787,962 

   Less

   Responsibility for the mortgage                $210,429

   Payment to the wife  $343,440

   Sub-total$553,869

   Total assets and entitlements                  $234,093

   Wife

   Her Toyota motor vehicle  $7,400

   Her superannuation entitlements               $10,693

   Cash payment from the husband                 $343,440

   Superannuation split  $18,500

   Total assets and entitlements                  $380,033

Conclusion

1. At trial I made it clear to the husband that he would be given the opportunity to retain the home subject to paying out the mortgage. He told me at that time that it would take 120 days for his parents to organise to lend him the requisite money. I told him that he should put that process in motion from that time, that is from the last day of trial, or 19 September 2014.

2. It is now late January 2015. The husband has had four months to organise to borrow money from his parents. I will therefore give him a further 30 days in which to finalise that process and obtain the money so that the settlement process above can be effected.

3. If he is unable to obtain a loan large enough for him to both discharge the mortgage and make the requisite payment to the wife, the family home will simply have to be sold and the above settlement effected on that basis, and I will make provision for that eventuality in the orders I make.

4. This has been a difficult case, not because of language difficulties, or of complexity in deciding the value of the pool. The difficulty in this case arises almost entirely from the recalcitrant behaviour of the husband, who has failed to comply with court orders throughout the proceedings and whose inability to accept that his opinions might be wrong has caused him to frustrate the process at every turn.

5. In those circumstances, I will make an order pursuant to s.106A of the Act so that if the husband’s behaviour continues to frustrate this settlement, a Registrar of this Court will have authority to sign any documents on his behalf.

6. It is to be hoped that now that the court proceedings are over, the husband will comply with court orders so that both parties, and their children, might get on with their lives.

I certify that the preceding one hundred and twenty seven (127) paragraphs are a true copy of the reasons for judgment of Judge Small

Date:  28 January 2015