RADNER & BIGNALL
[2021] FCCA 352
•25 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
RADNER & BIGNALL [2021] FCCA 352
Catchwords:
FAMILY LAW – Property dispute – short de facto relationship – no children –
each party has property at the commencement and debts – husband overstates the value of his assets at commencement - husband’s alleged debts to family members - issues of justice and equity to be considered before property alteration order made – no property alteration order.
Legislation:
Family Law Act 1975 (Cth), ss.75(2), 79(2), 79(4), 90SM(1)(a), 90SM(3), 90SM(4)
Cases cited:
Bevan & Bevan FLC 93-545; [2013] FamCAFC 116
C v C (2005) FLC 93-220; [2005] FamCA 429
Chancellor & McCoy [2016] FamCACF 256
Ferraro and Ferraro (1993) FLC 92-335
Hickey and Hickey (2003) FLC 93-143; [2003] FamCA 395
Stanford v Stanford [2012] HCA 52
Applicant: MR RADNER
Respondent: MR BIGNALL
File Number: CSC 142 of 2018
Judgment of: Judge Willis AM
Hearing date: 7 October 2020
Date of Last Submission: 7 October 2020
Delivered at: Cairns
Delivered on: 25 February 2021 REPRESENTATION
Counsel for the Applicant: Mr Baston
Solicitors for the Applicant: Cope Family Law
Counsel for the Respondent: Mr Eylander
Solicitors for the Respondent: Murray & Lyons Solicitors ORDERS
(1)That the further amended Response filed by the Respondent de facto husband, MR BIGNALL on 3 April 2020 (and all previous Responses) to alter the existing interests (both legal and equitable) of the parties to a de facto relationship is dismissed.
(2)That the proceeds of sale of B Street, Suburb C currently held on trust be distributed solely to the Applicant de facto wife, MS RADNER.
(3)If parties wish to make a costs application then the appropriate application is to be filed within 28 days.
IT IS NOTED that publication of this judgment under the pseudonym Radner & Bignall is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CAIRNSCSC 142 of 2018
MS RADNER Applicant
And
MR BIGNALL Respondent
1.The applicant in the matter is Ms Radner the de facto wife who I shall refer to as “the wife”. She is aged 45 at the time of hearing.
2.The respondent is Mr Bignall, the de facto husband, who I shall refer to as the husband. He is aged 42 at the time of hearing.
3.The husband says they commenced a relationship in 2013 and the wife says they first met in 2013 and commenced a de facto relationship in March 2014. On any version of events these parties were in a very short and childless de facto relationship for a period of three years or three years and seven months, depending on whose version of the dates is accepted. The period of seven months’ difference has no particular relevance to the overall position of the parties.
4.The parties separated on 15 March 2017 (“separation date”).
5.Their de facto relationship occurred in Queensland. I am satisfied that the geographical requirements have been satisfied. The wife relocated to Victoria on 29 May 2017, a couple of months after separation in March 2017, where she remains living. The husband resides in City D.
6.The parties are unable to agree in relation to Orders for a property division.
Competing Applications
De facto Wife.
7.It is submitted by Mr Baston of Counsel, on behalf of the wife, that there should be no Order made adjusting the property of the parties bearing in mind the considerations referred to in Stanford[1]. The wife seeks an Order to retain the $13,500 sale proceeds from the sale of her B Street, Suburb C property, currently held on trust and that they should each keep what assets they currently have in their possession and be responsible for the debts standing in their name.
[1] Stanford v Stanford [2012] HCA 52.
8.Mr Baston says that the wife has abandoned the Order for the husband to return various items owned by her, having little faith that this would ever occur.
De facto husband
9.In his Further Amended Response filed on 3 April 2020 and prepared by the husband when he was self-represented, the husband sought, in Order 1, that within 30 days he be paid $103,273.50 by the wife or a sum the Court deems fit. A reading of that document shows the husband seeking in addition a splitting Order from Wife’s Super Fund E using a base amount of $64,895. He proposes retaining all the assets currently in his possession.
10.Mr Wright, Solicitor for the husband [2] indicated to the Court that the husband sought Orders for funds to be paid by the wife to the husband which would result in the husband receiving 24% of the total of their respective net property pools, as set out on page nine of the Husband’s case outline.
[2] Mr Eylander of Counsel was not able to attend day two of the trial and Mr Wright took over the advocacy on day two of the trial.
11.The case outline states:
(a)the applicant pay the respondent the sum of money of approximately 24% of the balance of the property pool as at the date of separation. 24% of the sum of $341,385 is $81,932.40. As the Respondent has a current negative position of ($46,650), he seeks a payment of cash or super of $128,582.40. The Respondent proposes he receive from the applicant a cash payment of $65,000 within thirty (30) days, failing which the F Street, Suburb G property be sold to pay the debt, and a super split from the wife’s superannuation of $65,000. He is to retain all of the assets in his possession including how own Superannuation.[3]
[3] Outline of Submissions filed by the Respondent, pg 14.
12.Mr Wright stated in submissions that:-
My calculation could be altered now because of some amendments we may have made earlier on. The 24% of the $341,000 is $81,932.40. We say that at the moment he is in a negative position so he needs to get another $128 odd thousand to take his negative $46,000 up to that positive $81,000. We were proposing that he take half in cash and half in a super split.
13.The material relied upon is referred to in the list of documents filed on behalf of the wife being her case outline. The respondent’s material is set out in the outline of submissions. The tendered material includes the bundle of documents relevant to the wife’s affidavit.
14.A statement represents a finding of fact in these reasons, unless indicated otherwise.
Background
15.The wife was born in Country H in 1974. Her occupation is a professional and she remains working in that occupation.
16.The respondent husband says his occupation is a Director. I understand that is of his own company. He appears to have established several companies, possibly as many as nine. The husband was born in the UK in 1978. He has worked as a tradesman in his own business and for other employers including in primary industry and is qualified as a tradesman. He has not been working in the paid workforce since ceasing his employment in 2016.
17.Each party owned assets including superannuation when they met however, it is clear from the outset that the wife had significantly greater assets than the husband. It is conceivable that the husband in fact had a negative asset pool at the outset as will be explained in this judgment.
18.When the parties met in 2013, the wife owned a unit at F Street, Suburb G. The wife said “when I met the husband, I was living in the F Street, Suburb G property with my former partner Mr J who moved out in or about 2014, a couple of months prior to my moving into the K Street, Suburb L property in March 2014”[4].
[4]Wife’s trial affidavit filed 9 September 2020 at [9].
19.The husband owned a property when they met being a home at K Street, Suburb L, (“the K Street, Suburb L home”) which he had purchased back in 2009. He paid $450,000 for this property using a mortgage of $370,000 from M Bank, borrowed the deposit of $55,000 from his mother which covered stamp duties and other expenses.[5] The wife said the husband told her he had put the balance ($25,000) in from funds he was owed through a “redundancy payment from Employer N”.[6]
[5] Husband’s Affidavit filed 1 April 2020 at [61].
[6] Wife’s affidavit filed 9 September 2020 at [32].
20.Prior to taking up with the wife, the husband had come out of a relationship with his former partner and child with whom he lived in City O. After separation, the husband moved away from his former partner and child, back to City D. On or around the time the parties met the husband was living at his mother’s home and shortly after his grandmother unexpectedly passed away. The husband therefore was asked by his mother and the other beneficiaries to move into his grandmother’s home to be the caretaker for a period, which he did. His K Street, Suburb L home was still rented out.
21.The parties met in 2013 and started dating and their de facto relationship commenced in about March 2014 according to the wife. I accept her evidence on this issue. As I have said by March 2017 the relationship had ended.
22.At the commencement of the relationship, the wife was employed as a professional at Employer E in Suburb P on a salary of around $97,000 plus superannuation at 9 per cent.
23.The wife says the husband told her at this time he received an income of $3,000 per month from a block of land he leased in Darwin, though the wife says that the husband has not provided evidence of that income to date. The husband denies he ever told her this and says he never had a block of land in Darwin but he had other income coming in[7].
[7] Husband’s affidavit filed by leave on the day of trial.
24.The wife says that when she met the husband, she recalls he was living with and being financially supported by his mother in addition to receiving Newstart allowance. The husband accepts that he was setting up a new company. As per disclosure documents he was receiving a Newstart allowance as part of a new business payment scheme (NEIS), as from 2013. That appears to have been around $389 or $443 per fortnight. He says he earned other money.
25.The wife says that the husband was in financial trouble when she met him. The wife subsequently provided money to the husband from her own funds to enable him to pay down or extinguish debts relating to his various (four) credit cards in the husband’s name incurred by him prior to meeting the wife.
26.The wife borrowed $11,500 additional funds from her home loan to lend the cash to the husband to pay out his M Bank credit card when they were going out in 2013. In 2014 the wife lent the husband a further $8,500 to pay out his ANZ credit card. As with most issues, the wife has documentation validating these amounts.[8]
[8] Wife’s trial affidavit filed 9 September 2020, See paragraph 23,24 and 25.
27.The wife says she provided a further $25,000 to the husband to pay out his Westpac credit card having assisted him in negotiating with Westpac to pay out his over-limit and unpaid credit card. The husband now contests that the wife provided funds for payment of his Westpac credit card of $25,000, though does not contest that he was getting letters of demand in 2014 in relation to his then balance of around $46,000. His evidence is that his sister gave him this amount in cash, not the wife.
28.In early 2014 when the husband revealed to the wife, the extent of his debts he told her he had received letters of demand from M Bank about his home loan and that he was considering bankruptcy. The husband adopted several strategies to get himself out of debt he was in and to avoid his K Street, Suburb L home being lost through either bankruptcy or from being the subject a possible Family Law property application by his former wife (who was raising his child). These matters were discussed by the husband with the wife. The husband had not entered into property consent orders or a binding financial agreement with his former partner.
29.The husband said that the wife had experience in financial matters and in 2014 when he had the credit card payments unpaid for about 3 months, and the bank ringing him, she explained various options to him at the time. The husband decided that the K Street, Suburb L property should be sold. The husband was in arrears with his repayments. He asked the wife if she would buy the home. She agreed. The wife approached the bank and obtained a mortgage in her sole name. The parties agreed on the purchase price at $370,000 at market value as per the bank valuation and contracts were signed accordingly.
30.No arrangements were made by the husband to pay out his loan to his mother after the sale. The parties continued to live in the K Street, Suburb L home. The husband’s mother gave evidence that she obtained a second mortgage for the amount of $55,000 and that the plan was for the husband (her son) to pay her back periodic repayments into a specific account she set up called Mr Bignall’s ‘Loan Account.
31.In 2014 due to two incidents of attempted breaking in to the K Street, Suburb L home where the parties were living, the wife decided to buy another property for the parties to live in. The K Street, Suburb L home had some minor improvements made and was then rented out to tenants.
32.In 2014 the wife purchased a property in her sole name at B Street, Suburb C (“the B Street, Suburb C home”).
33.In 2016 the parties took a trip to Country Q for 3 weeks. In this time the husband had dental work carried out costing AUD$6,000 to AUD$8,000 which came out of the B Street, Suburb C offset account. Funds for accommodation AUD$5,000 and spending money of AUD$5,000 was also used.[9]
[9] Chronology by the Applicant Wife.
34.The holiday lead to the husband losing his employment as he did not ask for leave from his employer to go on holidays. His employers found out much to their surprise that he was in Country Q when they assumed he was working from his home office in Queensland. The husband denies he was sacked and says he decided to resign in 2016.
35.The wife stated that the husband did not seek work after he left his employment as he was in a Family Law battle with his former wife over their child and he wanted to be unemployed so as to be able to qualify for Legal Aid. The husband remains unemployed at the time of trial.
36.The husband did not work again in the paid workforce for the remainder of their relationship which ended in March 2017.
37.In July 2016 due to the mounting financial pressure that the wife was under as the sole income earner, the wife sold the K Street, Suburb L home. It sold for $395,000.
38.The wife directed the nett proceeds of $20,000 into the B Street, Suburb C offset account to primarily replenish funds spent on their holiday costs including travel and accommodation to Country Q, the husband’s teeth and other liabilities.
39.By January 2017 the relationship was deteriorating and the wife discussed with the husband her desire to return to Victoria for family reasons.
40.In March 2017 their relationship came to an end. The wife says that she needed to contact police due to the threatening actions of the husband.
41.The wife was under increasing financial pressure and listed the B Street, Suburb C home for sale post separation. In February 2018, the wife discovered that the husband was trying to stop the sale of her B Street, Suburb C home by putting a caveat on the title as well as the wife’s other property at F Street, Suburb G.
42.The husband lodged the caveats at a time when he had no means of paying or contributing to the mortgage himself and when he was not paying anything to assist the wife and had not done so for two years. He had no employment and therefore had no hope of obtaining finance. The matter came before the Court on 7 March 2018 and was referred to a Registrar in order to have settlement discussions. There was no agreement to the sale and the husband would not agree to the caveats being lifted. The matter was mentioned before the Court again on 19 April 2018.
43.On 19 April 2018, after the Court ordered that the husband remove the Caveats and a restraint issued preventing him from lodging any other caveats, the property settlement on the B Street, Suburb C home was able to proceed. The final of three offers for the home was accepted at $695,000.
44.The wife has set out the considerable costs incurred by her not only in the loss of sale price as compared to the purchase price, but through the associated costs of sale. In addition to that loss, the wife incurred significant other costs including legal costs well above the amount of the Order for costs.
Witnesses
The Wife
45.The wife is very articulate and was able to give an accurate history of many aspects of their relationship including the financial arrangements. The wife has an excellent memory for figures, dates and details of the parties’ overall financial arrangements. The wife gave very clear evidence and I am satisfied she is a truthful witness. The wife has presented as entirely reasonable with no attempt to inflate or distort the facts.
46.Most of the transactions the wife refers to are validated by documents. Wherever the wife’s evidence is in conflict with the husband, in the absence of any independent evidence, I prefer the evidence of the wife. The wife is a reliable historian and clearly provided leadership in money matters.
47.The wife explained that in 2013 the husband disclosed to her details of his various outstanding credit cards telling her that he had a credit card with ANZ, Westpac, and M Bank, and also a home loan to M Bank. She says, and I accept, that he explained to her that he was being chased by the banks and had received letters of demand from M Bank about his credit card debts and also his home loan. He said that he was considering entering into bankruptcy.
48.The wife in her desire to help the father get out of his financial quagmire offered to assist him reduce debt. The wife borrowed $11,500 through her home loan on the F Street, Suburb G unit and paid it out on the husband’s existing Westpac credit card debt[10] in 2013, not long after the parties first met. I accept that she told the husband this was a loan and she expected it to be repaid as she was not going to be repaying his debts relating to his former relationship which he had just come out of. The wife said that the husband told her at that time that he and his former partner resorted to paying their rent with credit cards.
[10] Wife’s affidavit filed 9 September 2020 at [24], Annexure 7 in the tender bundle.
49.In mid-2014 the husband informed the wife of his Westpac credit card with $45,000 outstanding. This crushing credit card debt to Westpac required a hefty minimum repayment of around $5,300 per month, which the husband was not paying.
50.The wife responded by suggesting to the husband that he should call Westpac and negotiate a payout whereby he paid the principal and not the interest. Following that discussion the husband then told the wife that he had negotiated a payout of $25,000 instead of $45,000 if I settle the debt by a certain date.[11] He was three months behind in repayments.
[11] Wife’s affidavit filed 9 September 2020 at [27]-[29].
51.The wife agreed to loan money to the husband in order to make that payment of the lesser amount. To do so she acquired a $25,000 interest-free credit card with the NAB in her name. She said she did not wish to draw down on her savings again. The wife obtained the credit card because it was a good deal, being interest-free, and it was on the basis that the husband agreed to pay it as he was about to start employment with Employer R, in early 2014[12].
[12] Para 29 of wife’s trial affidavit.
52.I accept that the reasons given by the wife that at the husband’s request she deposited the sum of $25,000 into the husband’s sister’s account with the NAB and in turn the sister paid the money to the husband to pay out the credit card[13].
[13] Westpac Choice account**...19.
53.The wife believed the husband would be in a position to make the loan repayments back to her.
54.I accept the wife’s evidence that the husband was in a dire financial situation at the time that she met him. The wife has clearly tried to assist the husband at the commencement of the relationship through trying to reduce his out of control debt situation.
55.The wife says that she believed the husband to be in a position to make the loan repayments back to her. The wife said that the reduction in debt and lending the husband funds to reduce debt was done in the broader context of the husband going through Family Court proceedings with his ex-wife.
56.In early 2014 the wife and husband discussed his financial situation at length. It was agreed that the husband would sell the K Street, Suburb L home. The husband then suggested that the wife purchase that property from him. The husband suggested that the wife buy his home.
57.The wife says she was reluctant to buy the K Street, Suburb L home as the City D property market was depreciating at the time. However, in February 2014 she agreed to purchase the K Street, Suburb L property to prevent the husband from going into bankruptcy. The wife said that she was aware bankruptcy would affect him for years because his company Company S was a registered company and the husband was a director at that time.
58.The husband and wife each obtained independent legal representation at the time. The husband’s solicitor drafted the contract documents. The wife moved into the K Street, Suburb L property with the husband and leased out her F Street, Suburb G property.
59.Bank valuations were obtained and the wife obtained finance through Westpac of $377,000 to cover stamp duty and the bank used her F Street, Suburb G property as cross-collateral security. The transaction settled on 21 March 2014. This was less than the purchase price in 2009 of $445,000.[14]
[14] Wife’s Affidavit filed 9 September 2020 at [34].
60.The husband made home loan repayments of $1,900 per month and insurance of $160 per month. The wife paid all household bills including rates and insurance on her credit card plus $250 per fortnight towards the home loan repayment. I accept that the husband had his belongings stored in the home and in a donger placed on the property.
61.The K Street, Suburb L property was finally sold in July 2016 due to financial pressure that the wife was under as the sole income earner by that stage.
62.Whilst the parties lived together in the K Street, Suburb L Property, they had several break-ins and the wife said she did not feel safe living there. In December 2014 the wife decided to buy another safer property at B Street, Suburb C (the B Street, Suburb C home).
63.This was purchased by the wife in her name for $750,000[15], a significant purchase. I accept the wife contributed $71,183.39[16] of her own funds as seen in the settlement statement.
[15] Wife’s Affidavit filed 9 September 2020 at [39].
[16] Tender bundle, exhibit 11.
64.The wife applied for a mortgage in her sole name to fund the balance to purchase the B Street, Suburb C home at a cost of $750,000. The acquisition costs of the B Street, Suburb C home were paid wholly by the wife without contribution by the husband.
65.I accept the wife’s evidence that for a period both parties paid $2,000 each per month whilst the husband worked, however, in March 2016 borrowings appear to be $693,000.[17] The wife’s repayments continued until the property was sold in around April 2018.
[17] Tender bundle, exhibit 11.
66.The Wife’s F Street, Suburb G unit was rented out in October 2014 for $360 per week.
67.I reject any assertion that the husband was somehow under the control of the wife. At paragraph 36 the husband stated As a result of the intense financial control the Applicant exercised over me, at the end of the relationship I was left with nothing but debt, whilst, at a minimum, she retained the full amount of equity she entered into the relationship with, and according to some of her calculations, actually left the relationship with increased equity.[18] This assertion is without any evidentiary foundation. I am not in any way persuaded the husband was overborne by the wife or under any pressure from the wife.
[18] Affidavit of Husband filed 1 April 2020 at [36].
68.The facts actually point to the reverse which is the wife trying to help the husband address his escalating debts and possible bankruptcy. The husband was highly motivated to re-organise his financial position and assets for his own financial gain.
69.The wife has an understanding of what a legal obligation to pay back money obtained by credit means, unlike the husband. The wife was willing and did attempt to set up and commence a repayment system to the father’s mother for money he had borrowed in 2009, years before they met. I am satisfied that the wife has ultimately acted to her detriment in assisting the husband with his financial affairs.
70.Wherever the wife’s evidence is in contest with the husband’s, in the absence of any independent evidence, I accept the wife’s evidence.
71.The wife has dealt with the Court openly and honestly. The husband now tries to misrepresent the wife’s assistance, to seek to gain advantage in these proceedings. His sister and mother have followed suit.
The Husband
72.The husband’s evidence at trial started with his own Counsel, Mr Eyelander, taking the husband through what were said to be amendments in his affidavit. These amendments related exclusively to values of property the husband said he owned at the time he met the wife. The husband prepared all of his own figures.
73.The husband told the Court that the first time had had seen the errors in his affidavit was a week or so before the trial. The errors were monumental and widespread. The husband said he typed an extra zero and that from my first affidavit that table was copied and transposed into other material.
74.The depth and magnitude of his mistakes are summarised in exhibit H1 which is a document prepared by his Counsel and titled Amendments to Trial Affidavit filed 1 April 2020
At page 7 paragraph 34 –
Furniture and white goods should read $4,000 not $40,000
Household entertainment systems and gadgets should read $3,000 not $30,000
Company S Stock should read $3,000 not $30,000Cash should read $2,800 not $28,000
At page 8 –
The cash commencement should read $2,800 not $28,000COMPANY S Stock should read $2,900 not $29,000
At page 9 paragraph 36 and table –
Furniture/whitegoods should read $2,000 not $20,000
Household entertainment should read $1,000 not $10,000Tool and gear should read $3,000 not $30,000
At page 9 paragraph 37 and table
Furniture and whitegoods should read $1,000 not $10,000
Household entertainment should read $500 not $5,000Tool and gear should read $1,500 not $15,000
At page 17 paragraph 74
The first sentence reads “Sometime around the middle of 2015”. It should read 2017
75.Each time the husband typed the amounts he then totalled those wildly inaccurate figures into various schedules as seen in the carefully prepared affidavit by the husband. The totals were used to demonstrate to the Court the value of the assets the husband owned through deducting debt from the total of the assets. On his figures he falsely asserted he had $311,300 of equity.
76.As to the evidence that the table in his first affidavit was copied and transposed into other material, that is not correct. The first affidavit prepared on 6 March 2018 [19]at paragraph 217, shows a table with four columns with four different headings and various descriptions down the left hand column referring to assets. Looking at each table carefully it is noted that the order of the assets and the descriptions of the assets slightly differ. For example, at paragraph 217, the order is: household furniture/white goods, household entertain systems (gadgets), tool and gear and superannuation, followed by the value of stock owned by the husband’s company COMPANY S.
[19] With 238 pages of annexures.
77.A close look at the table at paragraph 36[20] shows it has different headings for the columns, importantly the list of assets in the left hand column is in a different order and the descriptions of the class of each asset is subtly different. Some of the amounts are different, as seen with the Tools and Gear at $80,000 in the first affidavit, becomes Tool and gear at $30,000 at paragraph 36 of the trial affidavit.
[20] Affidavit by the Husband filed 1 April 2020 at [36].
78.At paragraph 35 of the trial affidavit, the schedule contains descriptions different from the first affidavit at page 217.
79.At paragraph 34,[21] the husband has prepared his affidavit to demonstrate to the Court how much property he owned at the commencement of the relationship. The husband said he had cash of $28,000 when it should have been $2,800. The husband said he owned stock in COMPANY S which was listed at $30,000, when it should have been $3,000. The husband listed furniture and white goods at $40,000 rather than $4,000. Household entertainment and systems and gadgets at $30,000 instead of $3,000.
[21] Trial affidavit of 1 April 2020
80.The totals show the husband owning $820,500 worth of assets including equipment, motor bikes, cars and cash of $28,000. At page 24 there is a photo of the husband surrounded by three motor bikes, 3 cars, a boat and trailer.
81.The husband even went so far as to state in his affidavit sworn on 23 September 2020 and filed by leave on the day of the trial 7 October 2020 at paragraph 10 that it was the wife misrepresenting the value of his asset. The husband stated: The applicant continues to misrepresent my assets and liabilities at the commencement of the relationship. I confirm my deposition at Paragraph 35, on page 7 of my compilation Affidavit filed 1/4/20 regarding my assets and liabilities at the commencement of cohabitation in August 2012.
82.However, on the same day, 7 October, on the commencement of his cross-examination he completely reversed his position when giving evidence and admitted his overstatement. The wife had been correct all along.
83.In effect the husband has overstated the value of his alleged possessions at the commencement of the relationship by least $247,500. I do not accept that this was a typing error or a mistake in the amount of zeros. There are too many alleged errors to be accidental and it is inconceivable that he failed to notice the values as represented in the columns, over and over.
84.The husband prepared the relevant documents and relied on that information to pursue his application throughout this litigation. The husband was in Court on various occasion when the matter was mentioned advancing his case. He had attended three conciliation conferences supervised by a Registrar advancing his case. The husband appeared at a contested interim application pressing his case for the caveats to remain partly based on the amount of his assets brought into the relationship. To suggest that the first time he realized these myriad of errors was the week before his trial is simply inconceivable.
85.The husband’s patently false testimony was in my view a deliberate effort by the husband to inflate and manipulate the size of the assets he said he brought into the relationship. There are too many errors to be accidental.
86.I also consider that by the time the trial was to occur, he realized that he would get (on his case), more money from the wife if his own assets were written down at much less.
87.I am satisfied that the husband has been wholly untruthful in his explanation of too many zeros. The husband was not an open or candid witness. I am satisfied that the husband will say and has said anything that will advance his case during this litigation.
88.Through the process of cross examination he was loathed to admit anything that did not favour his case. He did not readily admit that he was in a difficult financial situation when he met the wife. Under cross examination, after sustained questioning he had to finally accept that he did not have the finances to meet his significant credit card debt of $46,000, nor pay monthly repayments.
89.The cross examination was longer than it had to be, as the husband would not admit to concepts that were obvious, such as him being in a difficult financial position when he met the wife. He painted himself into a corner when doing so given that he had approached Westpac on the basis of financial hardship when negotiating about his substantial credit card debt. He had no answer when asked by Mr Baston of Counsel if he was not in financial hardship was his application to Westpac for relief based on a fraud. He would not admit without prolonged questioning that he decided to sell his home to the wife for the amount of $370,000. His complaint about the property being undersold are hollow and without any evidence. He knew there was a valuation for $370,000. He had no explanation for not selling it for more money, if he was the vendor and he thought it was worth more or if he wanted to repay his loan from his mother, which he did not do. He could have obtained a valuation himself if he considered the bank valuation to be too low but he did not. He has maintained a case theory that his home was sold at an undervalue. It is also part of his case theory that he was under pressure from the wife to do what she said. The evidence does not support either of these theories.
90.He knew his mother was owed money. He has never given that debt any priority. There have been long periods without him making any payments to his mother, including the three years post separation. The catalogue of assets he has purchased for his own enjoyment since buying his home are testimony to the fact that he has given little to no priority to repaying his mother. He seemed to be quite proud that he had not sold any of his assets: three cars and three motor bikes and boat and trailer to pay down debt.
91.Under cross examination he had to be shown his credit card statements before he would even admit to the extent of his debts. He reluctantly, after much questioning and documents being provided, had to admit that contrary to his previous answers, he had exceeded his credit card limit. His evidence that he was not in a position where he was not meeting his obligations, was false. The husband was three months, or over $15,000 behind in monthly repayments. He tried to diminish the enormity of the minimum monthly payment of some $5,300 by saying he could not even recall what the monthly repayments were. This was disingenuous. The husband was not wishing to tell the truth and he prevaricated and delayed his answers, trying to think up alternatives to the truth.
92.The husband’s refusal to openly accept that he sought to negotiate down his $46,000 debt, which was in arrears because he was in financial problems, was typical of his failure to make admissions against his own interest. He explained that at one point Westpac just happened to ring him to negotiate down the debt. This was ludicrous. When asked if he did not accept that he was in trouble financially in 2012 and 2014, why then was the property transferred into the wife’s name, the husband said that he had a number of discussions with his wife and she convinced me it was an option. It was clear he made a decision to move his K Street, Suburb L home and other assets like the boat and trailer, into the wife’s name to divest himself of property. This was because he perceived this to give him an advantage both in the face of possible bankruptcy and because he wanted to protect his assets from a possible property claim from his former wife with whom he has a child.
93.No valuations have been provided in relation to any of the husband’s assets and he has under oath, put forth fluctuating evidence designed to elevate his perceived entitlement in his property application.
94.The husband is very confident. In his Amended Response he describes his normal occupation as “primary industry”. He sees himself as a lawyer. He gave his evidence confidently though not honestly.
95.Rather than obtaining paid work, the husband has set up a profile of himself on Facebook implying he is a lawyer. He refers to himself as “T”. Under cross examination he reluctantly admitted that he had gone to the extent of setting up this entity called “T” in 2018 though he tried to distance himself from this website. A photograph of the Facebook page shows an image that the husband explained as being representative of “T” being a Country U code of ethics. The husband said it included seven qualities. When asked to explain what they were, he recall three being honour, discipline and loyalty. Under cross examination, the husband denied that he put the notice on the Facebook advertisement stating “Professional Skills Family Law”. The husband said I didn’t put it there. When Counsel pointed out that it is there, the husband said I don’t recall putting it there. He said when it was bought to his attention he deleted it. I do not accept the husband’s denials. His evidence was most unconvincing. On his Court documents whilst the husband has been self represented, the husband showed his email address ...com.au.
96.I formed the view that the husband has been less than honest with the Court throughout his testimony, including this one.
97.In saying that he was not sacked from his work in 2016 following his unauthorised overseas holiday, the husband showed no regret or insight into the ramifications of not earning an income. The husband said that he was not worried about leaving his job as he had another job lined up. This is at a time when he ought to have been worried. His casual approach to having what were clearly serious financial mismanagement issues was evident throughout the trial.
98.The husband is not a reliable historian. My impression was that he had approached this whole property settlement with a view to advancing his financial position in any way possible, including manipulating the value of his assets to achieve leverage initially, and then reducing values when he thought that would be to his advantage.
99.I have similar reservations about the husband’s debts. The husband purports to have a debt to V Finance. This relates to a vehicle of his that was repossessed after separation. As confirmed under cross examination, he has not produced documentation to evidence that V Finance have been chasing him for this alleged rounded off figure of $25,000 supposedly representing the short fall. Separation was in March 2017, over 3 years ago. I am not satisfied that this debt is in fact due and owing.
100.Similarly, as confirmed under cross examination, there is no evidence of his $23,000 in W Bank credit card expenses related to their period of cohabitation. The husband’s credit card history is that he chronically has significant credit card debt. The husband’s figures in this matter have been shown to be utterly unreliable.
101.Wherever the husband’s evidence is contradicted by the wife’s, in the absence of any independent evidence, I prefer the evidence of the wife.
Ms X (the Husband’s sister)
102.The husband’s sister, Ms X, gave evidence and was cross-examined primarily on the issue of allegedly providing almost $25,000 in cash to the husband to pay out his Westpac credit card debt. This evidence contradicts the wife’s evidence that she obtained the $25,000 on an interest free credit card and, as requested by the husband, paid it to Ms X who then gave it to the husband. The wife said this was part of the husband’s plan to have the money come from his sister, rather than his partner if the payment was referred to in his future possible property claim by his first wife.
103.Ms X explained that she decided to help her brother out and pay in cash the sum of $24,700 towards his credit card.
104.Ms X was asked under cross examination how she managed to have so much cash saved up and why it was not in the bank, but rather kept in her home. She said that she is a day-care provider, or educator, as she referred to it. In that work Ms X said she gets paid fees for day-care, but there is an additional cost to parents for their outlays in relation their child and this is generally paid to her in cash. Ms X says she saves this cash. Ms X said that she always declares the money, but never banks it, just saves it.
105.She then explained however that most of the funds from her $24,700 worth of cash savings had come from a sale of second-hand furniture when she moved from City O to City D. Ms X said that this happened when she met her current husband, who had a home in City O. Ms X said he moved in to her home which did not have a second living area, as her current husband’s City O home did. Ms X said “so there was lots of furniture left over” that they did not really need, and it was sold.
106.Ms X says that a good $10,000 or $15,000 of the cash she saved came from the sale of second-hand furniture. That consisted primarily of a second hand table and chairs, some couches and some beds seemingly belonging to her new husband. Ms X said she had sold the household contents prior to their relocation.
107.When asked where Ms X kept the cash at home, Ms X said that the cash was kept in a drink bottle and that is where it stayed for years. Ms X went on to explain that the money was generally used for herself and children to go on an overseas holiday. Ms X said that she had been saving the money to go to Country Y with her two daughters and Mr Z (new husband) and that was cancelled due to the pregnancy, with her daughter being born in 2012, and much too young to travel abroad for some years. She said she had the cash sitting around and put the money into her bank accounts and made deposits into her brother’s Westpac account.
108.Ms X was highly aligned with her brother (the husband). She refused to make concessions that would have been appropriate in the circumstances, such as even acknowledging that he was in a dire or poor situation financially. She said very confidently that he was not going through a difficult financial time and he had come back to City D and was getting on with his life and that he had his own business when he met the wife. The husband had conceded under cross examination that he had not paid his credit card repayments for 3 months, and that the minimum monthly payment on his then balance of $47,000 was $5,361. He had also been behind in his mortgage repayments.
109.Ms X admitted she did not know exactly what debts he had at that time and he “didn’t disclose them to me”. She said he had minimal expenses at the time, and he was not doing it tough. She said she did not know that he was having a difficult time with his Westpac credit card at the time, and she did not know the amount that was owed.
110.The evidence of Ms X sounded rehearsed. Ms X was very keen to get her version of events out without interruption and relayed her story about the money, the selling of furniture and drink bottle very rapidly. I was not satisfied as to the truth of her testimony. Ms X was highly aligned with her brother in all respects. I considered her evidence that she had saved up the $25,000 allegedly stored in a drink bottle, unconvincing. The evidence of Ms X sounded much more like a narrative concocted to try and assist the father’s case. At no time did she show any insight into the inconsistency between her swearing that the husband was not in financial difficulty while also stating that she had given him $24,700 to pay an outstanding credit card debt.
111.Her explanation of sales of second hand furniture to the value of $10,000 to $15,000 sounded exaggerated. Outlays in a family day care setting for food, drinks nappies or other consumables would need to be vast to reach $10,000 or $12,000, being the balance of the savings on top of the sale of furniture to reach the sum of $24,700 allegedly advanced. There were aspects of her testimony that appeared to be seriously lacking credibility.
112.If she had, in fact, paid out the debt on behalf of her brother, there was no evidence that she ever intended to have the debt repaid. There was no evidence of any terms or time limits relating to the debt or any demands for repayment. Counsel for the Wife asked Ms X if she had ever been repaid and she said No, because he has not had the funds to repay me but that repayment option is going to be done one day and if he doesn’t have the funds to do it, when my mum passes away there is money from the estate I will get the money from there.
113.Ms X’s evidence seemed implausible in most respects including that she, a separated mother of two and then having a third child, would casually give away such significant savings, not really even knowing the husband’s financial position and with no agreement as to when or even if it was to be repaid.
114.Having heard the evidence from each of the wife and Ms X as to the origin of the funds paid on the husband’s credit card, I prefer the evidence of the wife.
115.The wife has produced documents to match almost all of her evidence. Moreover, I am satisfied that the wife is an honest witness who has been meticulous and open in the evidence as to her management of money.
Ms AA (the Husband’s Mother)
116.The husband’s mother gave evidence and was cross-examined. Not unexpectedly Ms AA very strongly supports her son in this litigation.
117.Ms AA agreed that she was quietly relieved when her son first met Ms Radner because she was a professional and it was to be hoped that the issue of the financial affairs of the husband could now be perhaps managed and curtailed. Ms AA stated in her evidence that her son was a highly qualified tradesman.
118.Ms AA explained that back in 2009 her son had attempted to obtain a loan of 90% to buy the K Street, Suburb L property however borrowing this percentage meant that he would need to pay a hefty sum for loan insurance to protect the bank from loss on the loan should he default. At the time she had equity in her home and worked in the Employer BB on a good salary. She said in her affidavit that her two children are her only two beneficiaries of her estate and I saw no reason not to financially assist Mr Bignall to purchase his home by using some of his future ‘inheritance’ rather than handing over a large chunk of money to a bank[22].
[22] Affidavit of Ms AA filed 2 April 2020 at [7].
119.Ms AA said she agreed to take out a second mortgage on her own property of $55,000 which was to provide Mr Bignall with sufficient funds for a 20% deposit[23] and to pay for associated costs of purchasing a property, legal fees, stamp duty registration and to pay for moving costs. Ms AA stated in her affidavit that it was always agreed and understood that this amount was a loan to Mr Bignall for the purchase of the property…for $450,000 and that he would be responsible for the loan repayments. Although the loan is in my name it has always been known as ‘Mr Bignall’s Loan’.[24] She explained in her affidavit that I arranged to make fortnightly direct debit payments from my account to “Mr Bignall’s Loan” account, and he would make periodic repayments to me.[25]
[23] Affidavit of Ms AA filed 2 April 2020 Annexure -2 at page 10 of 20, shows the deposit at 10% plus stamp duty legal fees and removalists.
[24] Affidavit of Ms AA filed 2 April 2020 at [9].
[25] Affidavit of Ms AA filed 2 April 2020 at [10].
120.The evidence in this matter shows that during the relationship between the husband and wife, the wife set up a system of commencing periodic repayments to Ms AA.[26] Ms AA seems to have overlooked this fact, preferring instead to portray the wife as having caused the circumstances which led to Ms AA’s debt remaining unpaid after the sale of the K Street, Suburb L property to the wife.
[26]The payments were recorded in writing.
121.During the course of her evidence on the topic of the sale of the K Street, Suburb L property to the wife, Ms AA became quite overbearing in giving her evidence and purported to give a lecture on how valuations and banking practices work. Like the father, this witness was pushing a view that the K Street, Suburb L home was undersold when the husband sold it to the wife. When asked if it was undersold, why did her son accept that situation, this witness could give no satisfactory explanation.
122.Ms AA said that sometime in February or March 2014, when the husband and wife were visiting her home, she remembers a conversation took a turn that “…made me feel very uncomfortable and caused me a great deal of concern”. She said that she was told that they (the husband and wife) had decided that they were going to transfer the title of Mr Bignall’s[27] home to Ms Radner’s name only, as she had worried for some time that Mr Bignall could lose most of his equity in the house to his ex-wife as a result of a matrimonial settlement. This witness did not believe that the former partner would bring a property application. Ms AA knew that the husband had also transferred ownership of his boat and trailer to the wife.
[27] The husband.
123.Ms AA said she reminded both the husband and wife that she was nearly 65 and that she had lost her job through job cuts in her employer and was on a limited income, and that they needed to bear in mind that women of her age do not have a lot of superannuation. She said she reminded them she obtained a loan, secured by way of a second mortgage on her property, and it would cause her considerable hardship and difficultly to have to repay the loan. She was also worried that these parties were too early in their relationship to be contemplating such arrangements.
124.She also said that the husband was the one that was going to keep paying all of the outgoings and rates and mortgage repayments on the home, and that the purpose of this was that her son might lose his equity in the house to his ex-wife.
125.Ms AA said that the wife promised to pay out the husband’s loan if the property was sold. The son’s debt to his mother was from years before the husband and wife met.
126.Whilst having this significant assistance from his mother in 2009, the husband has had multiple credit cards, three motor bikes, three cars, a boat and trailer amongst other purchases and travelled overseas. The husband gave up his paid work knowing he had financial obligations to others including his mother.
127.Ms AA was extremely partisan in her recollections of events and her ire was directed towards the wife.
The Law
128.In this matter each party has adopted a different approach to the respective applications.
129.Prior to the High Court decision in Stanford v Stanford [2012] HCA 52 (“Stanford”) the Court would typically adopt approach to property division set out in various authorities and described as a four step process in cases such as C v C (2005) 33 Fam LR 414; Hickey and Hickey (2003) FLC 93-143 and Ferraro and Ferraro (1993) FLC 92-335.
130.In Bevan & Bevan [2013] FamCAFC 116 (“Bevan”, the Honours of the Full Court in reference to the decision in Stanford and the four step process stated that[28]:
59. Prior to Stanford, property applications were commonly dealt with by reference to what the trial Judge called “a four stage process”. This process was described at [31] and [32] of his Honour’s reasons. The jurisprudential basis for the process was well established – see the line of cases cited in Hickey & Hickey (2003) FLC 93-143 at [39].
60. The four stage (or step) process involves:
· identification and valuation of the property of the parties;
· identification and evaluation of contributions to the property (including property no longer owned by the parties);
· identification and assessment of the various matters in s.79(4)(d) to (g) including, to the extent they are relevant, the matters in s 75(2);
·consideration of matters of justice and equity.
[28] Paragraphs 59,60
131.As the Full Court (Bryant CJ, Finn & Thackray JJ) noted in Bevan at [65]-[67]:-
65. Although the High Court did not disapprove the four step process, we accept it was not approved either. Given the way the matter was resolved, there was no requirement for a pronouncement either way. However, the High Court’s decision serves to refocus attention on the obligation not to make an order adjusting property interests unless it is just and equitable to do so.
66. This obligation was previously described in the High Court as the “overriding requirement”: Mallet v Mallet (1984) 156 CLR 605 at 647 per Dawson J. In the same case at 608, Gibbs CJ aptly described s 79 as conferring on a court “a very wide discretion to make such order as it thinks fit when it is satisfied that it is just and equitable that an order should be made …” (emphasis added).
132. As to the approach taken in the decision in Hickey & Hickey (2003) FLC 93-143, Justice Finn stated in Bevan at paragraph 163:
163.However, now the High Court has emphasised (particularly at [35] that the question is whether it is just and equitable to make any order at all under s79. Furthermore, it has said at [34] and repeated at[40] that the matters to be considered in answering the question under s 79(2) are not to be “conflated” with the matters contained in s 79(4). The matters which can be taken into account in determining whether it is just and equitable to make an order do not admit of “exhaustive definition” (Stanford at [36)]. But there must be a “principled reason for interfering with the existing legal and equitable interests of the parties to the marriage”(Stanford at [41]).
164. However, it is also clear from Stanford (at[42] that in many cases the just and equitable requirement will be readily satisfied because once the parties are no longer living together, there will be no longer be the common use of the property, and the express or implied assumptions previously underpinning the parties’ property arrangements will have been brought to an end. This will be the situation, as the Chief Justice and Thackray J have observed, in the vast majority of cases, and thus, again as their Honours have observed, the pivotal role of s79(2) as identified in Stanford is unlikely to have impact in most cases.
165. Nevertheless, having regard to the decision in Stanford the court must be seen to address at some point in a decision under s 79, the question of whether it is just and equitable to alter the existing property interests in that particular case. That question will be easily answered where both parties are seeking orders which alter their respective property interests. It will be more difficult to answer in cases such as the present, where one party seeks that no order be made.
133.In Bevan at [68] their Honours continued:-
68. Notwithstanding this clear exposition of the law, again approved in Beneke and Beneke (supra), perusal of the law reports reveals that it has only rarely been argued that a court is precluded by considerations of justice from exercising the discretion conferred by s 79(1). It appears to have been routinely assumed by litigants, certainly in more recent times, that justice requires the court to assess their claims by reference to s 79(4), even if one contends that the outcome of that assessment will be an order leaving existing property interests intact.
134.The Full Court in Bevan referring to Stanford at [73] stated:-
73. The High Court in Stanford has laid down three “fundamental propositions” which will provide useful guidance to trial judges in approaching the task under s 79. These were recited above, and could be summarised thus:
1.Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);
2.The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;
3.A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.
135.In Bevan their Honours said:-
80. The second “fundamental proposition” laid down in Stanford is also not novel since, as the plurality noted, it is well accepted that “title to property and proprietary rights in the case of married persons … rests upon the law …”: Wirth v Wirth (1956) 98 CLR 228 at 232. Thus, spouses do not have rights to property by operation of s 79 unless and until an order is made altering the rights they have, as determined by principles of common law and equity: Fisher v Fisher (1986) 161 CLR 438 per Mason and Deane JJ at 452 to 454.
81. The third “fundamental proposition” demands separate consideration of the preliminary question of whether it is just and equitable to make any order altering property interests before the need arises to consider the extent to which existing interests are to be altered and the manner in which that is to be done.
82. As we have noted, in many cases the preliminary question is effectively answered in the affirmative by the way the parties present their cases. Nevertheless, it is still necessary for it to be shown that the trial judge has expressly, or by clear implication, answered that question in the affirmative before making an order altering existing interests in property.
83. Answering this preliminary question clearly involves the exercise of judicial discretion since, as was said in Stanford at [36]:
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.
136.In Bevan at [84] their Honours continued:
84.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 plan 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).
85.This requirement to consider the s 79(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 wat the plurality aid 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 alternating property interests will not be so clear cut and will therefore require not only separate but very careful deliberation.
86.We do not consider it helpful, and indeed it is misleading, to describe this separate enquiry as a “threshold” issue. We say this for two reasons. First, as was emphasised in Stanford, the initial enquiry is to determine the existing legal and equitable interests of the parties Secondly, although s 79(2) is case in the negative and amounts to a prohibition against making any order unless it is just and equitable to do so, the corollary is that if the court does make an order, such order itself must be just and equitable: Woollams & Wollams (2004)FLC 93-195 per Thackray J and [53] and Teal v Teal [2010] FamCAFC 120 per Finn, Boland and Dawe JJ at [70]. The just and equitable requirement is therefore not a threshold issue, but rather one permeating the entire process.
87. It will be seen from this discussion that while the s79(2) and s 79(4) issues must not be conflated, they are intertwined because the text of the Act links them. This was recognized in Ferguson & Ferguson where Strauss J said that s7(2) “is directed to bot the questions whether an order should be made at all, and what the order should be, if one is made”. (supra 77,615)
137.It is clear that after an identification of the existing property interests (as determined by common law and equity), the Court is required to consider under s79(2) whether it is just and equitable to make an order at all. The equivalent provision s90SM (3) in relation to de facto parties.
138.The Family Law Act (“the Act”) at s90SM(1)(a) states that in property settlement proceedings after the breakdown of a de facto relationship, the Court may make such Order as it considers appropriate; (a) in the case of proceedings in respect to the property of the parties to the de facto relationship or either of them – altering the interests of the parties to the de facto relationship in the property.
139.Under s90SM(3) of the Act it states the court must not make an order under this section unless it is satisfied that under all of the circumstances it is just and equitable to make the Order.
140.Under s90SM(4) states in considering what Order (if any) should be made under this section in property settlement proceedings, the Court must take into account the matters referred to in s 9SM (4)(a) through to(g). That includes the financial (direct and indirect) and non-financial contributions, contributions to the welfare of the family and matters referred under subsection 90SF(3).
Identifying the existing property interests (as identified by common law and equity):
141.In determining this the Court is required to first ascertain the parties’ existing interest in property.
142.The wife’s case has been conducted on the basis that this case does not fall into the often-seen category of parties who at the end of their relationship have no difficulty establishing that it is just and equitable for a property alteration Order to be made. In this matter although the parties had common use of their respective properties the question is: Is it just and equitable at the end of their relationship for there to be any property adjustment Order taking account of the property currently standing in the name of each party?
143.Subject to findings by the Court as to issues of creditability and alleged debts, the schedule below reflects their existing interests in property[29] as follows:
[29] Husband’s Case Outline pg. 9-10 and noting footnotes stating the source documents and that the Husband’s schedule includes adjustment for alleged typographical errors.
Wife’s existing property and her liabilities
ITEM ASSET LIABILITY F Street, Suburb G 325,000 Motor Vehicle 1 27,500 Bank Acct ending ...60 2,167 Shares 5,516 Bank Acct ending ...83 8,250 Settlement proceeds B Street, Suburb C 13,097 Loan to husband alleged $23,750 Superannuation 224,662 Total Assets 606,192 Mortgage on F Street, Suburb G Pty 211,505 Westpac Credit Card ending ...68 2 Westpac Credit Card ending ...21 6,650 Total Liabilities 218,157 388,035 Husband’s existing and his liabilities
ITEM ASSET LIABILITY Furniture/whitegoods 1,000 Household entertainment systems and gadgets 500 Tool and gear 1,500 Boat and trailer 4,500 Superannuation 63,350 Cash 200 Total Assets 71,050 Loan from mother 44,700 Motor Vehicle 1 25,000 Loan from sister 25,000 W Bank credit card 23,000 TOTAL LIABILITIES 117,700 -46,650 144.Under s90SM(3) states that the Court must not make an Order under this section unless it is satisfied that in all the circumstances, it is just and equitable to make an Order. This is followed by s90SM(4) states in considering what Order (if any) should be made under this section in property settlement proceedings, the Court must take into account the matters listed from (a) through to (g).
145.As I have referred to in paragraph 136 herein, with reference to the decision of Bevan their Honours in the Full Court confirm that any suggestions to ignore the matters referred to in s79(4)(the equivalent of s90SM(4)) would ignore the plain words of s79(4).
146.I will now turn to s90SM(4) to undertake a separate but very careful deliberation in determining whether it is just and equitable to make any order altering property interests.
Section 90SM(4)
147.This is a very short childless relationship of just over 3 years.
148.Each of the parties owned assets at the commencement of the relationship. The wife, however, had far greater assets and significantly less debt in relation to those assets as compared to the husband.
149.It is agreed[30] that the wife had the following assets and liabilities at the commencement of the relationship:
[30] Case outline for the husband – agreed to by the wife’s Counsel.
| WIFE’S ASSETS | ||
| Description | Wife | |
| 1 | F Street, Suburb G | $320,000 |
| 2 | Westpac Savings Account | $76,999 |
| 3 | A share portfolio (estimate) | $40,000 |
| 4 | Motor Vehicle 2 | $50,138 |
| 5 | Super Fund E | $162,000[31] |
| Total | $649,137 | |
LIABILITIES OF THE WIFE | ||
| Description | Wife | |
| 1 | Mortgage on F Street, Suburb G property | $229,779 |
| 2 | Finance Loan on Motor Vehicle 2 (car loan) | $30,522 |
| 3 | Credit Card – Westpac ending in ...44 | $986 |
| Total | $261,287 | |
| NET BALANCE | $387,850 | |
[31] Paragraph 7 of the wife’s affidavit states also.
150.The husband says he brought in the assets in the table below, however, notably this is very much an adjusted position based on his evidence at the commencement of his cross examination that he had overstated the value of some assets (items 2,3,4,5 and 14) by a factor of ten.
151.The below list is to be compared to the schedules shown at paragraphs 34 and 35 of his trial affidavit filed 1 April 2020. Also schedules at paragraph 36 and 37 of his trial affidavit. In all of these schedules there are a myriad of overstatements of values[32] .
[32] See Exhibit H1 with the summary.
152.The schedule that was at para 34 now reads (adopting the $450,000 figure)
| HUSBAND’S ASSETS | ||
| Description | Husband | |
| 1 | Home at K Street, Suburb L | $450,000 |
| 2 | Furniture | $4,000 |
| 3 | Household Entertainment Systems and Gadgets | $3,000 |
| 4 | Tools and Gear | $8,000 |
| 5 | Company S stock | $3,000 |
| 6 | Boat and trailer | $4,500 |
| 7 | Canoe | $2,000 |
| 8 | Motor Vehicle 3 | $6,000 |
| 9 | Motor Vehicle 4 work van | $12,000 |
| 10 | Motorbike | $8,000 |
| 11 | Dirt bike 1 | $5,500 |
| 12 | Dirt bike 2 | $6,000 |
| 13 | Motor Vehicle 5 | $5,500 |
| 14 | Superannuation | $80,000 |
| 15 | Cash | $2,800 |
| Total | $600,300 | |
LIABILITIES OF THE HUSBAND | ||
| Description | Husband | |
| 1 | M Bank mortgage on K Street, Suburb L | $365,700 |
| 2 | Loan from mother (Ms AA) | $55,000 |
| 3 | Loan for Motor Vehicle 4 van | $8,000 |
| 4 | M Bank credit card | $6,000 |
| 5 | Westpac credit card | $42,000 |
| Total | $476,700 | |
| NETT BALANCE | $123,600[33] | |
[33] Husband’s Case Outline pg 4-5. Agreed to by Counsel during submissions.
153.The husband’s original schedule at paragraph 34, totalled $788,000 in assets he owned at the commencement of the relationship.
154.Taking into account his evidence of overstatement of values, the figure in his affidavit for total assets of $788,000 is reduced to $600,300 with debts of $476,700.
155.That leaves his nett position at $123,600 for all of his assets. Of that sum, $80,000 was comprised of superannuation.
156.His non-superannuation assets were therefore $43,600 at the commencement of the relationship.
157.I also note that the husband’s values include the K Street, Suburb L property listed at $450,000 which was the purchase price in 2009, six years before they cohabited. Funds were borrowed by the husband namely the deposit borrowed from his mother $55,000 and the Commonwealth Bank mortgage of $365,700. He told the wife he sourced the balance for the deposit from a redundancy payout from Employer N. [34] If that was true, he had equity of around $29,300.
[34] Affidavit of the Wife filed 9 September 2020 at [32].
158.The parties moved in together in 2014 and around that same time the husband sold the property to the wife for $370,000 as per the bank’s valuation. Therefore, the value of the K Street, Suburb L home at the time the parties commenced cohabitation in 2014 could easily be seen as $370,000 rather than $450,000 [35] which would mean that his non-superannuation assets at the commencement of the relationship were $80,000 less than claimed.
[35] Purchase price in 2009.
159.Leaving aside the husband’s superannuation of $80,000, that brings the nett non-superannuation asset figure from a positive $43,600 to a negative $36,400.
160.Alternatively if the value when the K Street, Suburb L property was sold on the open market in 2016 is used: $395,000, the value for the K Street, Suburb L home is reduced by $55,000. That would take the husband’s position leaving aside his superannuation of $80,000 from positive $43,600 to a non-superannuation asset value into the negative by $11,400.
161.The wife’s schedule showed assets worth $649,137 and debt of $261,287 giving her a nett position of $387,850. The wife had accumulated $162,000 worth of Superannuation with her employer Employer E. Deducting the wife’s superannuation from the total of the assets, the wife’s non-superannuation pool would be $225,850. Her superannuation of $162,000 stands separately.
162.Comparing their non-superannuation pools therefore shows a comparison of $43,600 for the husband’s assets at the beginning of the relationship as compared to $225,850 to the wife. The total of their respective non-superannuation assets is $269,450. Those figures translate into the wife owning 84% and the husband owing 16% of the non-superannuation assets.
163.Those figures properly reflect the comparison in assets owned at the commencement of the relationship. This is a short relationship, just over 3 years. There is no evidence of either party contributing to the other’s superannuation. They had each accumulated superannuation well before meeting each other. I am not satisfied that either party did contribute to the other party’s superannuation. The superannuation accrued during their short marriage reflects their respective efforts at working their respective incomes. I do not accept that either party made a contribution to the other party’s superannuation.
164.Adding the superannuation in to the other assets, causes a distortion in my view of their actual financial position.
165.Overall, the initial contributions of the husband are dwarfed by the wife’s superior initial contributions.
166.Throughout this short relationship, the wife has made far greater financial contributions at the commencement, during and after the relationship as seen in the wife’ evidence. I give this factor significant weight.
167.The wife remained in employment at all times. At the commencement of the relationship her salary was $97,000 per annum plus superannuation. After early 2016, the wife became the sole income earner. The husband, however, was receiving social security payments of a Newstart allowance (NEIS) to start up his new business (called COMPANY S) when the parties met. The business was not making a profit. In mid-2014 he obtained employment. In mid 2016 he ended that employment. Thereafter for the remainder of the relationship and beyond, the husband had no income. He has therefore contributed significantly less than the wife in terms of income.
168.The husband had his K Street, Suburb L home occupied by tenants and in around 2014 the husband and wife moved into that home.
169.In addition to bringing in significantly more assets than the husband, and less debt, and earning significantly more the husband, wife made direct financial contributions during the relationship well over and above any funds contributed by the husband.
170.While the parties were courting, the wife wished to help the husband financially. In December 2013 the wife withdrew $11,500 cash from her existing mortgage loan account on the F Street, Suburb G unit to lend to the husband in order to pay out his M Bank credit card. Additionally, in February 2014 the wife loaned the husband $8,500 to pay off his ANZ credit card. It was deposited into his ANZ bank account on 4 February 2014. The wife made clear to the husband that these were loans to help him out. Again in July 2014 the wife obtained a low-interest credit card in order to loan the husband $25,000 to pay out his negotiated balance of $25,000 on his Westpac credit card. The funds were paid to the NBA account of the husband’s sister at the husband’s request as the husband was going through Family Court matters at the time with his ex-wife. This totals $45,000 that the wife has paid towards the husband’s pre-existing debts related to his previous relationship.
171.The wife had no benefit from this payment. It reduced the husband’s debt while it increased her own indebtedness. The husband and/or his previous wife had the benefit of the expenditure. Given the husband obtained employment around mid-2014 and then ceased employment in 2016 (he says he decided to leave his employment), his ability to contribute to any debts is restricted to this period.
172.The wife who remained employed throughout their short relationship has made her financial and non-financial contributions which extended well beyond 2016 when the husband ceased work.
173.In 2014 the wife agreed to buy the K Street, Suburb L home from the husband who was in a dire financial situation involving unpaid mortgage repayments, unpaid credit cards bills and considerable debt. The wife agreed to buy the K Street, Suburb L home to help the husband. She borrowed $377,000 as per the bank valuation plus an amount to cover stamp duty and the costs of granting collateral security over her F Street, Suburb G property. Settlement took place on 21 May 2014, whereupon the wife personally moved into the property because it had a larger back yard for her two dogs.
174.The husband had remained living in the K Street, Suburb L house and had offered to help the wife with the mortgage repayments while he was employed by Employer R. The wife accepted his offer taking account of the fact that he had built the entire shed on her property with his personal contents and additionally had a leased shipping container parked on the property. The husband paid repayments on the K Street, Suburb L property of $1,900 per month, plus insurance repayments of $160 per month. The wife paid all the household bills on her credit card and $250 fortnightly towards the mortgage.
175.In the second half of 2014 the wife wanted to buy another house to live in as K Street, Suburb L was targeted by thieves twice and she did not feel safe. The K Street, Suburb L property was finally sold on the open market in July 2016 for a profit. The profit after sale costs was $20,000.
176.The husband shared in the benefit of the sale proceeds as most of those funds were used to replenish the offset bank account which had been used to outlay costs (accommodation, air fares, spending money and husband’s dental work) for their three week Country Q holiday. The balance, about $4,000, was used for their household bills over the next eight months until separation.
177.In December 2014 the wife solely acquired another property, the B Street, Suburb C home, for $750,000. The wife provided all the deposit of $71,183 from her own existing funds. The wife took out a mortgage for the purchase of her B Street, Suburb C home for $693,000. The husband did not contribute to the acquisition of this property.
178.The wife accepts that from when the B Street, Suburb C home was purchased by her in December 2014, that through 2015 and for the 3 months in early 2016 (the date the husband became unemployed), the husband and wife each contributed to the payment of the mortgage repayments of $2,000 to the wife’s home in which they were both living. However, from early 2016, when the husband gave up his employment, he made no further financial contributions to the relationship. Thereafter the wife solely remained committed to paying the mortgage repayments insurance and all other outgoings. The wife has paid considerable funds over and above anything the husband paid in mortgage repayments on this home.
179.I accept the wife’s evidence that in summary, from the period July 2013 until March 2017 she made payments totalling $268,233.[36] The wife used her income to pay insurance on her property at F Street, Suburb G of $3,240; car repayments on her Motor Vehicle 2 of $16,800; payments on the F Street, Suburb G mortgage of $38,880; $5,000 towards painting the K Street, Suburb L property; $10,000 towards the NAB credit card; $17,200 for the Motor Vehicle 1;[37] Mortgage repayments on the B Street, Suburb C property totalling some $58,500; insurance on that property of $2,430; These repayments were made exclusively by the wife
[36] Wife’s trial affidavit at [43].
[37] Wife’s trial affidavit at [43].
180.The wife’s payments during the period that the husband contributed (around 14 months) were equivalent however, her repayments continued for the balance of the relationship and then for a year after separation. The wife’s ongoing repayments and other payments well and truly eclipsed what the husband paid before he ceased paying anything. Having considered all of the circumstances and the details of the loans the wife made to the husband and the overall context in which payments were made, I am not satisfied that this brief contribution of mortgage repayments are sufficient to give him an equitable interest in the property. The husband did not, of course, make any contribution to payments or outgoings for the wife’s F Street, Suburb G property, her vehicles or her superannuation nor make any other financial contributions for the benefit of the wife. The wife was responsible for all these expenses without any assistance from the husband.
181.The wife’s F Street, Suburb G unit was leased through CC Real Estate Suburb P from 24 February 2014 and the mortgage repayments paid. The wife was responsible for all other ongoing standing costs on the F Street, Suburb G unit. After 2016 when the husband ceased working the wife was left to pay all of their living expenses and also the debts in her name in the subsequent period of twelve months until their final separation in March 2017.
182.The husband states that sometime around the middle of 2017 he made an application to access some of his superannuation on hardship grounds. He said he withdrew $8,000 and claimed to have given $5,000 to the wife and retained the balance for his own debts. I have noted that the husband has accessed his superannuation on the basis of hardship and that it has reduced from $80,000 to $63,350.
Post Separation in March 2017
183.The wife’s financial contributions did not stop at separation. Importantly, the wife maintained her mortgage repayments for a further year on the B Street, Suburb C property.
184.After separation in the period from April 2017 to May 2018 the wife continued to make substantial financial contributions to her mortgage repayments on the B Street, Suburb C property totalling some $42,500. The wife alone also paid other costs for insurance, council rates, electricity and repairs. The wife also paid mortgage repayments on her F Street, Suburb G unit (rented out), as well as rates and insurance and other costs set out at paragraph 58 of her trial affidavit. The wife also made repayments on her vehicle a Motor Vehicle 1. Those costs total around $116,148.[38]
[38] Wife’s trial affidavit at [58].
185.The wife continued with the repayments on her F Street, Suburb G property following sale of the B Street, Suburb C home, as she had done throughout the relationship. The payments involved mortgage repayments, council rates, water bills and she continued paying out the credit card which she had used to lend money to the husband, totalling $38,299.[39]
[39] Wife’s trial affidavit at [63].
186.The B Street, Suburb C property was sold for $695,000, noting the purchase price was $750,000 in April 2018. The wife suffered a loss of $55,000 on the contract. There were also other costs outlayed by her including rates, insurance, legal fees and other costs amounting to $14,350.50, bringing the total of her loss to $69,530[40].
[40] Wife’s trial affidavit at [42].
187.Overall, I accept the husband’s financial contributions as deposed to by the wife. I have already stated that her evidence is accurate to the best of her knowledge and she has given her evidence honestly and without exaggeration.
188.In relation to their respective non-financial contributions, I accept the wife’s evidence as to the extent.[41] The wife’s non-financial contributions include the general up keep of the home including cleaning, vacuuming, grocery shopping, gardening, budget planning, ensuring bills are paid in a timely manner and washing. The wife also assisted in caring for the respondent’s young child from his previous relationship. This occurred every second weekend and half school holidays for a period of 12 months.
[41] Wife’s trial affidavit at [47]-[49].
189.The wife sets out that given the husband was not working from 2016 in last 12 months of the relationship, the wife had maintained the household bills, entertainment and living expenses for herself, the husband and the husband’s child. The wife also includes that the husband utilised her vehicle (the Motor Vehicle 2) to travel to City DD for changeovers at the expense of the wife who paid for fuel and wear and tear on the vehicle.
190.As to the husband’s alleged non-financial contributions, I accept the wife’s evidence that the husband did general tasks around the home including general maintenance, gardening, mowing the lawn and cleaning the pool and shopping.
191.As to the F Street, Suburb G unit, I accept the evidence of the wife as to the extent of the husband’s attendance at that unit on two occasions which led to a complaint by the tenant to the agent, which resulted in the husband being unable to attend again. I accept the wife’s evidence as to the husband’s installation of a second hand pool pump which the wife purchased. I accept the husband may have painted some non-slip paint on to some concrete. I accept the evidence of the wife as to her denial that the husband attended to extensive painting and improvements to that property. As to the K Street, Suburb L property, I accept the wife’s evidence that the husband did minimal work to the property after she bought the home including replacing a few boards on the upstairs decking and painting those boards. I do not accept the husband’s claims of making further improvements to the property and accept the wife’s evidence that the building inspection at the time of sale in 2016 showed decay in the upstairs decking and the house being of average condition.
192.In relation to the B Street, Suburb C property, I accept that the majority of the work in the garden was done by the husband and wife with bigger tasks such as installing a rock wall and bringing in dirt as being arranged by third persons attending to these tasks.
193.I do not regard any of the husband’s non-financial contributions as being any higher than the wife’s. I am not satisfied that his non-financial contributions have added any value to the wife’s properties and there is no admissible evidence deposing to this.
194.The wife says, and I accept, that since the husband’s dismissal from Employer R in early 2016, the husband was unemployed for a period of 12 months and spent his time writing Affidavits, lodging Domestic Violence applications against his ex-partner to obtain full child custody.
195.The husband added considerable difficulty and expense to the wife’s sustained efforts to sell the B Street, Suburb C home by frustrating the sale process by placing caveats on her homes. The wife incurred delay and significant legal costs in having to resort to Court action and a contested hearing, to have his caveats removed.
196.I accept the wife’s evidence as to her non-financial contributions include being the sole person getting the B Street, Suburb C home ready for sale. I accept the wife’s evidence that generally on the issue of non-financial contributions the husband has either not attended to the work, as he alleged, or the work was undertaken by them jointly or he has greatly exaggerated his efforts.[42] Throughout this litigation the husband has said whatever he needed to say to advance his position.
[42] Wife’s trial affidavit at [48]-[56].
Section 90SF(3) Factors
197.In this short relationship, the extent of any s90SF(3) considerations are tempered by this fact.
198.The wife remains working as a professional. Her current income from that source is $1,658.50 per week. In addition she receives rental from a tenant of $375. From that sum she pays taxation, mortgage repayment and other costs listed.
199.The husband is not working at present. He has started up another company. He is receiving Jobseeker of $628 per week. He states he pays a credit card with a minimum payment of $7.50 per week.
200.He has it seems good qualifications as a tradesman. His certificates and accreditation may need renewing however he has not yet attended to this. There is no evidence of any barrier to him being able to do a refresher course and re-enter the field of work he is trained in. Whilst working in City O, just before coming to City D, he was earning $120,000 per year. He has chosen not to work in the paid workforce for some years since early 2016 when he gave up his employment. I accept the wife’s evidence that he chose to be unemployed to try and receive Legal Aid in his Family Law parenting litigation. I am satisfied that he is under achieving in terms of his work capacity. He has chosen not to re-enter the work force and earn an income from his trade of a tradesman with excellent qualifications as described by his mother. I note on his financial statement filed he describes his occupation as Student at EE University. He has started up another company; I think the husband has started up over six companies.
201.He has a seven or eight year old child from his previous relationship with Ms FF, however, there is no evidence of financial support being provided to that child. Given his income, it will be minimal, if any[43].
[43] Financial Statement filed 6 October 2020.
202.The husband is younger than the wife by 4 years. He has the capacity to earn as much income as the wife. There is nothing that occurred in the relationship that has affected his capacity to earn a living as a qualified tradesman.
203.The wife’s standard of living has now dropped. The wife is living with her mother and her financial situation has been impacted in the negative by her participation in this de facto relationship.
Discussion
204.The wife’s case has been conducted on the basis that this case does not fall into the often-seen category of parties who at the end of their relationship have no difficulty establishing that it is just and equitable for a property alteration Order to be made. In this matter although, the parties had common use of their respective properties the question is: Is it just and equitable at the end of their relationship for there to be any property adjustment Order taking account of the property currently standing in the name of each party?
205.In determining this the Court is required to first ascertain the parties’ existing interest in property which I have undertaken earlier in this judgment.
206.I am reminded that the existing assets and liabilities of the parties (Subject to findings) are as follows:
APPLICANT WIFE
ITEM ASSET LIABILITY F Street, Suburb G 325,000 Motor Vehicle 1 27,500 Bank Acct ending ...60 2,167 Shares 5,516 Bank Acct ending ...83 8,250 Settlement proceeds B Street, Suburb C 13,097 Loan to husband alleged $23,750 Superannuation 224,662 Total Assets 606,192 Mortgage on F Street, Suburb G 211,505 Westpac Credit Card ending ...68 2 Westpac Credit Card ending ...21 6,650 Total Liabilities 218,157 388,035 RESPONDENT HUSBAND
ITEM ASSET LIABILITY Furniture/whitegoods 1,000 Household entertainment systems and gadgets 500 Tool and gear 1,500 Boat and trailer 4,500 Superannuation 63,350 Cash 200 Total Assets 71,050 Loan from mother 44,700 V Finance 25,000 Loan from sister 25,000 W Bank credit card 23,000 TOTAL LIABILITIES 117,700 -46,650 207.The wife’s position is that the Court will not be satisfied that under all of the circumstances, it is just and equitable to make an Order as stated.
208.Submissions are made that the husband had contributed to the joint expenses during the relationship and that allowed the applicant to save monies from rent to purchase the property at B Street, Suburb C and also discharge debts. I have taken account of those submissions.
209.The husband also carried out repairs, maintenance and improvements to the three properties held during the relationship. I have made findings that the husband has not contributed anything like the financial contributions made by the wife as set out in this judgment. I do not accept he has made non-financial contributions any greater than the wife. I have found he has exaggerated his evidence and non-financial contributions.
210.It is submitted on behalf of the husband that a property adjustment to the respondent would reduce or discharge debt. This would permit the respondent to restart his work and obtain tools of the trade to improve his earning capacity.
211.His pool of assets is distorted by his alleged debts. I have a strong impression that the debts are largely illusory.
212.I also am extremely sceptical and saw no evidence to validate that the husband is under pressure to pay the debt of $25,000, as set out in the document from V Finance. This was the shortfall after the vehicle was sold after being repossessed in 2018. The husband had purchased this vehicle in mid-2015 at a price of over $103,000. No up to date documentation is provided to confirm that there is any current demand being made for these funds. The most recent document was 2019 and it was simply a running balance showing the balance after the sale. [44] It is entirely conceivable that V Finance have made a commercial decision to write the debt off.
[44] Husband’s Affidavit filed 1 April 2020, Annexures at pg 99.
213.His current credit card debt has not been proven to have arisen from the relationship period. Each of the wife and husband have had their own credit cards.
214.There is no evidence to say that his current credit card of W Bank was a debt during the relationship. In any event, I am satisfied that each party had their own credit cards during this relationship and that their finances were not intermingled in that sense.
215.I do not accept the $25,000 debt allegedly owed to his sister, as referred to elsewhere in these reasons.
216.I am satisfied that most of the husband’s debts are somewhat illusory. The only debt I am satisfied about is the money he borrowed from his mother, however, I am equally satisfied that the arrangement was he could pay direct payments to his mother essentially whenever he feels like it. It is a family arrangement. I note his mother’s reference to the loan being made to enable him to access his inheritance.
217.I have carefully considered all of the facts and taken into account the evidence set out herein.
I am satisfied that:
218.This is a relationship of just over 3 years. I accept the evidence of the wife as to the length of the relationship. There are no children.
219.There has been no intermingling of their finances. They have had no joint bank accounts. The husband and wife maintained separate finances throughout the relationship. Each regarded their money as their own. These parties have operated as separate entities.
220.There have been conscious decisions in the relationship as to the ownership of property. The husband decided to sell the only asset of any substance he owned at the commencement of the relationship to the wife. There was very little equity in it, likely $25,000.
221.The wife paid market value according to a valuation they both agreed to use. The husband’s solicitor drew up the contract. The parties each had their own solicitors.
222.The wife borrowed all of the purchase price and arranged a mortgage in her name. The husband did not assist with the acquisition of this asset.
223.There is no evidence of any undue pressure or influence by the wife in forcing him to enter into any contracts. There is no evidence of a sale at an under value as alleged by the husband and his mother.
224.The $20,000 nett sale proceeds from the K Street, Suburb L property were used to replenish funds which had been used to pay for the holiday to Country Q, accommodation, expenses and the husband’s dental work.
225.Each of the parties entered the relationship with their own assets and superannuation. The wife’s asset pool is vastly more valuable that the husband’s as seen in these reasons.
226.The nett balance of the wife’s non-super assets is $225,850.
227.The wife alone purchased the B Street, Suburb C home. This was a deliberate decision. The wife contributed her own funds of $71,183 for the deposit and she alone organised finance through the bank for the purchase of the B Street, Suburb C home at $750,000. The husband did not contribute to the acquisition of the asset.
228.The wife paid repayments on the home and acknowledges that they both paid $2,000 per month (minimum repayment $3,400 per month) for a period after the purchase in December 2014, but by early 2016 the husband stopped work and stopped assisting with repayments or any other financial assistance.
229.The wife became the sole income earner in this relationship after March 2016.
230.The wife alone paid repayments on the B Street, Suburb C home after March 2016 until some 2 years later in April 2018. The wife paid all other standing costs associated with the B Street, Suburb C home.
231.The Court is not satisfied that the husband has made contributions to the B Street, Suburb C property such that it increased it values or as alleged by the husband. The Court prefers the evidence of the wife.
232.The husband worked and earned an income for only part of this short relationship as referred to in these reasons. The wife was fully employed as a professional and earned $97,000 per annum at that stage, considerably more than the husband. The wife has maintained employment and a solid income throughout. For almost one third of the relationship the husband did not earn an income. The wife has financially supported the husband when he had little income or no income. The husband has not financially supported the wife.
233.The wife entered this relationship is a much stronger financial position than the husband. The wife has obtained funds and helped the husband to reduce his three credit card debts and his rather overwhelming debt situation. The wife has contributed her own money, when the husband had no equivalent funds via income or lump sums.
234.Contrary to the husband’s assertions that he has acted to his detriment in this relationship, in fact the wife has rescued the husband from the dire financial situation he was in as he came out of his prior relationship, and she has lost money through that process.
235.The wife entered this relationship with considerable cash funds of just on $80,000. During the relationship she has funded loans to help the husband reduce his overwhelming debt. His existing debts and obstructive behaviour at the end of the relationship in lodging caveats to prevent sales of the wife’s assets have resulted in considerable cost to the wife in both money and stress. Subsequently, the wife’s financial position is not as strong as it was at the commencement of the relationship.
236.The wife owned significant assets at the commencement of their relationship. The husband actual asset position is extremely modest in comparison. The wife has directed significantly from earnings throughout the relationship and after the relationship. The husband’s financial contributions during were limited to the period he was in employment, about a year. He paid nothing after separation. The wife has given cash to the husband as loans, which have reduced at least $45,000 worth of his pre-existing debt. The wife acted to her detriment in financially assisting the husband.
237.The wife has paid significantly more money than the husband in terms of acquisition of assets and making repayments towards maintaining and preserving them.
238.The husband has had his debts reduced during the relationship, and now seeks to pursue an application that he is “entitled” to be paid a percentage of the wife’s only remaining assets, which he has not contributed to.
239.The wife and the husband have each made non-financial contributions, and neither is greater than the other, when all matters are considered.
240.I have had regard to the husband’s alleged debts. I am not satisfied that his sister lent him the $25,000 as referred to elsewhere in these reasons.
241.There should be no adjustment in relation to the 90SF(3) factors.
Conclusion
242.The husband has never lived in the wife’s F Street, Suburb G property and made no contributions towards it. The wife owned it before she met the husband. It has always remained separate as property of the wife. The parties have never lived together in her F Street, Suburb G property which was kept separately from their living arrangements.
243.Both properties acquired during the relationship and which they had common use, have now been disposed of. The evidence as to the wife purchasing each of these properties has been referred to.
244.The wife’s financial position at the end of the relationship shows she has suffered a severe set back financially as compared to her position at the commencement of the relationship.
245.The husband has never contributed to the wife’s car repayments. The wife has paid all the repayments. The husband has not contributed to the wife’s superannuation during this short relationship. The wife’s superannuation existed long before she met the husband and continued to grow for the three years of the relationship in accordance with her work remuneration. The wife owned her unit at F Street, Suburb G before the parties met and she has met all of the mortgage repayments and outgoings of this unit. All of these financial arrangements have been determined on by the parties whilst they were together.
246.There has been no sharing of property interests. The parties have deliberately kept their financial affairs separate. As is clear from the evidence, the wife has provided most of the finances for their living expenses during the relationship. The husband was employed in the paid workforce for around one year out of the three they were together.
247.The husband has approached this matter on the basis that he is entitled to an Order requiring the wife to sell her F Street, Suburb G home, and for him to be paid a portion of her current superannuation and a portion of the F Street, Suburb G unit owned by her and a portion of the vehicle owned by her, all of which the wife has alone accumulated.
248. their existing ownership of property and liabilities standing in each of their respective names, I am not satisfied that it is just and equitable to make any Order adjusting the existing property rights of the parties to this de facto relationship.
249.The wife should retain her proceeds of sale held on trust, as part of her assets. I will Order that the wife is to retain her funds currently held on trust.
250.I dismiss the respondent husband’s application to alter the existing property entitlements belonging to each of the parties in this de facto relationship.
251.I do not intend to make an assessment of what the husband’s entitlement might have been had the Court decided that it was just and equitable to make some form of property Order. This is in line with the Full Court authority in Chancellor & McCoy [2016] FamCACF 256 at [68]:-
…having determined that it was not just and equitable to interfere with existing property rights, her Honour did not need to make an assessment of what the appellant’s entitlements might have been had she decided it was just and equitable to make some form of property order. Our law does not provide for a system of community of property arising from marriage (or from a de facto marriage), and the High Court has emphasised in Stanford that it is simply not open to a trial judge to interfere with existing property rights of citizens merely by reference to the provisions of the Act.
252.The wife has indicated that she wishes to make a costs application. I will make Orders for submissions and a minute of Orders sought to be filed.
I certify that the preceding two hundred and fifty-two (252) paragraphs are a true copy of the reasons for judgment of Judge Willis AM
Associate:
Date: 25 February 2021
Key Legal Topics
Areas of Law
-
Family Law
-
Equity & Trusts
Legal Concepts
-
Remedies
-
Costs
0
10
2