Renard and Geach

FEDERAL CIRCUIT COURT OF AUSTRALIA

RENARD & GEACH

[2014] FCCA 2605

Catchwords:
FAMILY LAW – Property – property settlement – where the family home has been sold and the proceeds applied to the wife’s new property – whether it is just and equitable to make any orders at all – contributions of the husband.

Legislation:

Family Law Act 1975, ss.75, 79, 90G, 90MT

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

Applicant:

MR RENARD

Respondent:

MS GEACH

File Number:

MLC 6887 of 2012

Judgment of:

Judge Small

Hearing date:

13 August 2014

Date of Last Submission:

14 August 2014

Delivered at:

Melbourne

Delivered on:

20 November 2014

REPRESENTATION

Counsel for the Applicant:

Ms Paull of Counsel

Solicitors for the Applicant:

Waters & Co.

Counsel for the Respondent:

Mr Davis of Counsel

Solicitors for the Respondent:

Schetzer Constantinou

ORDERS

Within 60 days of final property orders being made (“the due date”) the wife shall pay to the husband the sum of $27,125.80 (“the payment”).
In the event that the wife does not make the payment by the due date, the property situate at and known as Property S in the State of Victoria (“the real property”) shall be sold altogether out of court (“the sale”) and the proceeds of the sale shall be applied as follows:
(a)First to pay all costs and commissions of the sale;
(b)Second to discharge any mortgage over the real property;
(c)Third to discharge the wife’s debt to her father up to the sum of $126,776;
(d)Fourth so much of the payment as is outstanding together with interest at the rate of 8.5% per annum from the due date to the date of payment to the husband; and
(e)Fifth the balance to the wife.
Within seven days of the date of these orders the lawyer for the Husband shall provide procedural fairness to the Trustee of the Husband's (omitted) Plan Superannuation Fund (“the Trustee”) such that notice is given to the Trustee of specific orders in relation to a proposed superannuation split in the amount of $15,259 (fifteen thousand, two hundred and fifty nine dollars) from the husband’s superannuation entitlements to the wife.
Within seven days of receiving a response from the Trustee the lawyer for the Husband shall send a copy of that response to the Associate of Judge Small so that final orders may be made.

AND THE COURT NOTES:

A.These orders are for partial property settlement only because final orders will include a superannuation splitting order and upon the Court receiving confirmation of procedural fairness having been afforded to the Husband’s superannuation Trustee, final orders may be made in chambers.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6887 of 2012

MR RENARD

Applicant

And

MS GEACH

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings are for property settlement between the Applicant Husband Mr Renard (“the husband”) and the Respondent Wife, Ms Geach (“the wife”).
This is the second time the parties have come before me for determination of issues in the wake of their marriage breakdown.
The first hearing, heard by way of a threshold issue in these proceedings, related to a financial agreement signed by the parties in October 2008 (“the Agreement”). After a two-day trial I found that financial agreement not to be binding because it did not comply with s.90G(1) of the Family Law Act 1975 (Cth) (“the Act”).
In light of that finding the original application for property settlement filed by the husband now comes before the Court.
The issues in this case are those usually pertaining to marital property settlements under the Act:
A.What are the property interests of the parties?
B.Is it just and equitable to alter those interests?
C.If it is just and equitable to do so what are the contributions of the parties to the property of the marriage?
D.Should there be any adjustment made to the contribution-based entitlements by reason of the matters set out in s.75(2) of the Act?
E.In light of those findings what orders should be made to produce a just and equitable settlement between the parties?

Background

The parties met through an online dating site in 2007 and were married at (omitted), Victoria on (omitted) 2008. The wife deposes, and the husband does not deny that they began living together in (omitted) 2007.
Mr Renard, who is now 50 years old, is an Australian citizen and Ms Geach, who is 44, is an (country omitted) citizen with Permanent Resident status in Australia.
They underwent a second wedding ceremony in (country omitted) on 29 October 2008 according to (country omitted) custom and (country omitted) law, having signed the Agreement the day before they flew out to (country omitted) to prepare for the (country omitted) wedding.
At the commencement of the relationship the parties lived at the property at Property C which was owned by the wife’s parents (“the Property C property”).
In 2009 the property at Property G (“Property G”) was purchased, and registered in the name of the wife. The parties then lived at that property until they separated.
Property G was sold in late 2012, and the sale proceeds have been retained by the wife.
During the relationship and marriage, several motor vehicles, including a (vehicle omitted) and a Honda (omitted), were bought, some of which have since been sold. The husband has retained the proceeds of sale of the (vehicle omitted) and the wife has retained the proceeds of sale of the Honda (omitted)..
The parties finally separated in January 2012 and were divorced on 14 March 2013.
There are no children of the marriage although the wife had two children from previous relationships, her daughter X (“X”) born (omitted) 1993 and her son Y born (omitted) 2006 (“Y”), who lived with the parties throughout their marriage.
The husband also has two children from previous relationships and during the marriage he paid child support for one or both of them.
The marriage was the third for Mr Renard and the second for Ms Geach although she had also been involved in a previous de facto relationship.
The wife has worked as a (occupation omitted) for (employer omitted) since September 2008 and lives in a property she has purchased in Property S.
The husband worked for several employers during the marriage and after a period of unemployment from September 2012, he now works as a (occupation omitted) at a (employer omitted). He has lived with his parents since separation.

Procedural History

The Husband initiated these proceedings by way of an Initiating Application filed on 8 October 2012 in which he seeks a property settlement under s.79 of the Act, although that is not how the Application is worded.
The wife filed a Response on 9 November 2012 relying on the Agreement and seeking an Order dismissing the husband’s Application.
After the Agreement was held not to be binding upon the parties by order dated 5 July 2013, the following orders were made:
1. Within 14 days of the date of these orders the husband shall file and serve an Amended Initiating Application, with an Affidavit and Form 13 Financial Statement in support, setting out the orders he seeks.
2. Within 14 days of service of the husband’s documents as set out in paragraph 1 hereof the wife shall file a Response, and an Affidavit and Form 13 Financial Statement in support, setting out the orders she seeks.
3. The matter be otherwise adjourned to this court for mention in the Duty List on 18 September 2013 at 9:45 a.m.
The husband filed an Initiating Application (not an Amended Initiating Application) on 18 July 2013 seeking that “the assets of the parties be disposed of in accordance with the Family Law Act 1975”, that the wife pay him unspecified spousal maintenance, and that he be otherwise excused from particularising his claim until the wife had made full and frank disclosure of the assets and liabilities of the parties.
He also filed an Affidavit and sworn Financial Statement at that time.
On 17 September 2013 the wife filed an Amended Response seeking that husband’s Application for spousal maintenance be dismissed with the husband to pay the wife’s costs of the Application.
The Application came before me on 18 September 2013 when I made Orders for the parties to attend a Conciliation Conference on 10 February 2014 and set the matter down for two-day trial on 13 August 2014. An Order was made distributing the proceeds of the sale of the (vehicle omitted) motor vehicle to the husband and for the costs of the parties to be fixed and reserved.
On 6 February 2014 the wife filed an Application in a Case seeking that the husband make disclosure as per the Orders made on 18 September 2013.
On 5 March 2014 the husband filed a Response to the Application in a Case seeking that it be dismissed.
The Application in a Case came before me on the 16 June 2014 in the Duty List with the parties coming to an agreement that the wife’s Application be dismissed and the parties’ costs be reserved.
The wife filed a further Application in a Case on 18 July 2014 seeking an extension to the deadline for the filing of trial materials by 2 days, that Application being listed before me on the first day of the Final Hearing.
The wife filed a Further Amended Response 2 days prior to the Final Hearing on 11 August 2014.
The trial of this matter began on 13 August 2014 and ran for two days, after which I reserved my decision.
Evidence was heard from the husband, the wife and the wife’s mother, all of whom were cross-examined.

Issues and Evidence

A. What are the property interests of the parties?

The assets of the parties can be set out as follows:
·The Property S property registered in the wife’s name and worth $550,000
·The Holden (model omitted) worth $18,000
·The Holden (model omitted) worth $17,000
·The wife’s household contents valued by her at $5,000
·The wife’s bank accounts with a balance of $1,190
·The proceeds of sale of the (omitted) vehicle in the sum of $9,126 retained by the husband
·The proceeds of sale of the Honda (omitted) in the sum of $25,000 retained by the wife
·The husband’s household contents worth $4,325
Total non-superannuation assets worth $629,641
·The wife’s superannuation in (omitted) Fund worth $21,576
·The husband’s superannuation in two (omitted) Funds worth $131,489
Total superannuation entitlements worth $153,065
The liabilities of the parties can be categorised as:
·The wife’s mortgage over the Property S property with a balance of $317,000
·The loan from the (omitted) Bank to the wife’s father and provided to her for the purchase of Property G with a balance of $126,776
·The husband’s overdraft with a balance owing of $4,606
Total liabilities of $448,382
Therefore the non-superannuation assets of the parties have a nett worth of $181,259 ($629,641 less $448,382).
The wife sought to have the amount of $222,968 included as a debt owed to her parents for the cash provided to her for the purchase of Property G.
It is the wife’s evidence that that amount was a loan and not a gift. That evidence was confirmed by her mother, Ms P (“Ms P”) in her Affidavit affirmed on 9 May 2014 and reaffirmed on 14 August 2014.
However, there are no loan documents in relation to that loan and while the wife says she is paying that loan off monthly, there was no evidence produced at court to support that assertion.
I note that in the wife’s Outline of Case document filed on 11 August 2014 the $226,968 is not mentioned as a liability of the wife. It was however included in a later Outline of Case Document handed up to the Court at trial.
Therefore I consider the $226,968 to have been a gift to the wife at the time of Property G’s purchase, while the $126,776 remaining from the amount borrowed by her father and provided to her for the same purpose is a loan, having been evidenced by documents before the Court.
The wife had also claimed the sum of $11,713 in credit card debt as part of the liabilities of the parties, but her evidence was that she had paid out her credit card debt upon the refinancing of Property G in September 2011, only four months before separation. There is no evidence before the court as to how the $11,713 debt was incurred in those four months, and I will not include it in the property pool.
In his Outline of Case Document filed 6 August 2014, the husband sought to include as property of the marriage the following:
·$1,000,000 which he asserted the wife had received from her parents after the sale of their resort property in (country omitted)
·Two debts owed by him to his father and his brother with a balance of $28,140
At the opening of her case, counsel for the husband confirmed that he was seeking to have the $1,000,000 asserted to have been received by the wife from her parents as part of her assets.
However, by the end of the trial the husband was no longer pressing that issue. That was in my view a wise decision in light of the evidence of Ms P, who said in her affidavit that she and her husband own a holiday resort consisting of villas in (country omitted) (“the resort”) and that if they were to sell it, they would “consider gifting the proceeds to Ms Geach and her sister Ms C because (country omitted) tradition dictates that daughters lose their rights to inherit their parents’ property upon their death”.
However, Ms P made it clear that there is no intention to sell the resort and that she and her husband “will continue to run the (resort) for some years to come”.
It is her evidence that the wife does not own any property in (country omitted) as far as she is aware.
In those circumstances I do not consider the purported one million dollar gift from the wife’s parents to the wife to be evidenced in any way and have not counted it as part of the pool of assets to be divided.
The husband conceded at trial that the loans from his father and brother, which were evidenced by affidavits sworn by each of them, had been incurred post-separation and that he was no longer seeking to have them included in the marital liabilities.
Therefore, the net value of the non-superannuation assets of the parties remains at $181,259.

B. Is it just and equitable to alter those interests?

The law in relation to property settlements between parties to a marriage is found in Part VIII of the Family Law Act 1975 (“the Act”), and more particularly in s.79.
Section 79(2) of the Act states that the court must not make an order under this section (that is, an order altering the property interests of the parties) unless it is satisfied that, in all the circumstances, it is just and equitable to do so.
In relation to that section, in Stanford v Stanford[1], the High Court made clear that the determination of whether it is just and equitable to alter the parties’ property interests must be made before any consideration of the matters set out in s.79(4) is undertaken.
[1] Stanford v Stanford (2012) FLC 93-495
In Stanford the High Court further said, at paragraph 42:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and the wife.
In Bevan & Bevan the Full Court said that the circumstances described in the above passage of the Stanford judgment “encapsulate the vast majority of cases”[2] .
[2] Bevan & Bevan [2013] FAMCAFC 116 paragraph 70
In this case, the parties were in a relationship and marriage for about four-and-a-half years. It was not the first marriage for either party and there are no children born into that marriage.
As set out above, the parties have interests in property.
It is clear that there cannot be common use of that property now that the marriage is over, and in particular, where the major asset of the marriage has been sold and its proceeds now lie in the equity held by the wife in the Property S property.
The question of whether it is just and equitable in all the circumstances of this case to make any order altering the current interests of the parties was raised during the trial and in final submissions.
I note that in Stanford, the High Court made clear that the fact of a marriage is not in itself a reason to alter the property interests of the parties and that there should be no assumption that either party is entitled to an adjustment of those interests.
Counsel for the wife submitted that in circumstances where the husband had made no direct financial contributions to the acquisition of Property G, and where he did not hold legal title to Property G or any other real property, the husband would have to show an equitable interest in the wife’s current property in the form of a constructive or resulting trust in order to show that it would be just and equitable to alter the interests in that property.
There are certainly cases where I believe that might be the case, those cases falling outside “the vast majority of cases” mentioned by the Full Court in Bevan. Such cases might be, for instance, those of a very short marriage where a party has made no financial contributions of any kind to the other party’s property and s.75(2) factors are equal between them.
However, in my view, looking at all the circumstances of this case, and particularly in light of the evidence set out in Parts C and D of these reasons, I find that its facts overall fall within “the vast majority of cases”. Therefore, in circumstances where the parties have separated and no longer have common use of the original property, I find that it is just and equitable in all the circumstances of this case for the court to make orders altering their property interests.

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

The husband’s evidence

In his initial Affidavit filed with his original Initiating Application on 8 October 2012, the husband deposes to the following:
·during the marriage he had personally undertaken extensive renovations to improve the house, gardens, garage and value of Property G, which included over 20 hours per week of work on the house.
·during the marriage he had paid over $1100 per week to the wife to manage the parties’ financial affairs and that from those monies the wife had paid the mortgage on Property G and loans on two motor vehicles: Holden (model omitted) registration number (omitted) (“the Holden (model omitted)”); and a Holden (model omitted) registration number (omitted) (“the Holden (model omitted)”).
·during the marriage all assets had been placed and registered in the wife’s name, with all debts and liabilities registered in the husband’s name, except for the housing loan and the loans for the Holden (model omitted) and the Holden (model omitted) which were in both names.
·he had paid over $1500 in outstanding telephone and utility bills after separation.
At that time Mr Renard was seeking 50% of the net sale proceeds of Property G, being $215,000, that the (omitted) motor vehicle registration number (omitted) be transferred to him, and that both parties retain their superannuation entitlements.
In his Affidavit sworn and filed 11 February 2013 the husband deposes that he paid $900 per week towards the mortgage over the family property from the date of purchase until separation, that he renovated the home and contributed a total of $128,000 in relation to the renovations and the mortgage.

The husband says that during the marriage the wife controlled all the party’s finances and that she did not keep him fully informed of where money was going.
He says that he agreed to putting Property G and other assets in the wife’s name because she had been concerned that “in (country omitted) previous wives could gain access to (property) through the courts and she was worried that my previous two wives could apply to obtain property or her parents property”.
He then sets out contributions he says he made to home loans owed to “(omitted) Bank” which by my calculations amount to a total of $102,572 between 25 March 2009 and the date of separation on 28 January 2012.
In relation to the (omitted) vehicle he says that the wife paid its deposit from monies which had been borrowed by the parties as an extension to their housing loan. He says that the monies he paid to the wife’s account covered the mortgage and therefore the loan repayments on the $2000 deposit for the (vehicle omitted).
He is adamant that the wife made no payments in relation to the (omitted) vehicle other than the $2000 deposit and says that he made all the monthly payments on that vehicle. He does not say what the purchase price of the vehicle was or when it was purchased, but it is common ground that the net amount realised upon its sale was $9126 which the husband retained pursuant to orders and spent on legal fees.
He says that since separation the wife has sold Property G and the Honda (omitted) motor vehicle and that she has retained all sale proceeds thereof.
In addition to those matters, the husband states that all receipts and tax invoices in relation to Property G remained at that property as the date of separation and that he was never given access to those documents.
He deposes that Property G was purchased in March 2009 for the sum of $495,000. He says that the sale price of $730,000 in August 2012 was obtained due to renovations to the property including painting and landscaping to which he contributed significantly.
The husband filed no further material in this matter until 8 August 2014 when he filed an Outline of Case Document.
In that document he set out in great detail, significantly more detail than in any affidavit material filed, the contributions he says he made to renovations at both the Property C property and Property G.
The husband attempted to file an Affidavit, setting out the contributions stated in the Outline of Case Document, on the first day of trial. However in circumstances where he had had the information set out in the Affidavit for some years, where he had been specifically requested to file further Affidavit material by the wife’s solicitors in the months before trial and where he had stated to the wife’s solicitors that he would not be filing any further Affidavit material, I declined to accept that Affidavit.
In oral evidence the husband confirmed his view that he had made significant contributions to renovations both at the Property C property and Property G.
In relation to Property G he said: “We renovated that house from top to bottom, from the front gate to the back fence. It got landscaped, it got repainted.”
He was adamant in his evidence that he had personally done the painting downstairs, conducted the whole of the bathroom renovation including removing the sink and the toilet and installing the vanity unit, and that he had done the plumbing as well. He said that the upstairs painting had been done by professional painters, the kitchen had been installed by a kitchen renovation company and that carpet layers had laid the carpet, but that otherwise he had personally performed the labour on the household renovations.
Under cross-examination the husband conceded that at the date of the marriage he owned a car worth perhaps $1000 and that otherwise he had only debts, including a $12,000 debt to his brother related to his previous marriage. He acknowledged that that $12,000 was paid back to his brother from the refinancing of Property G during the marriage.
He also said that he owed his father money at that time but disagreed that the amount was $14,250, although he was shown a Financial Statement he had sworn in proceedings between him and his previous wife on 13 November 2008 which stated that sum as the amount that he owed to his father at that time. That financial statement, which was tendered by the wife, also showed that he owed the sum of $9400 or so to (omitted) College for his son’s school fees. He then conceded that the Financial Statement he had sworn on 13 November 2008, eight months after the marriage date, was a true reflection of his financial position at that time.
The husband denied that his brother had been repaid monies owing to him from the refinancing of Property G in 2010. He said that it was his memory that the debt had been paid before then but he did not deny that the debt was “around” $15,000.
Under further cross-examination he admitted that both that debt and a $12,000 debt to his parents, both of which were owed prior to this marriage and which total $27,000, had been paid out from either income or capital during this marriage.
He acknowledged that about 30% of his income in the early stages of the marriage was being paid to his former wife as child support for his children and that that amount decreased when his older son turned 18. Those monies were therefore not available to this marriage.
He conceded that he had not contributed financially to the purchase price at the time Property G was purchased and could not dispute the wife’s evidence that the purchase costs were $23,800.
Until he was taken to documents showing the contrary, the husband was adamant that the first mortgage over Property G had been obtained in the joint names of the parties because the wife was unable to obtain the loan in her own name. He reluctantly resiled from that position only when shown the mortgage documents in the wife’s sole name.
He did not accept that $50,000 to $60,000 was spent on the renovations to Property G, as he said he had never seen any financial statements to that effect, saying only that he believed the renovations had cost “over $30,000 to $40,000”. He could not, however, dispute the wife’s figures.
He was adamant that he had conducted all work on the renovations apart from the kitchen and the painting and carpeting, which had been sub-contracted.
Mr Renard agreed that the parties had spent about $30,000 on furniture but said that included all the electrical appliances and the home theatre. He denied that the wife had applied $30,000 back to the mortgage from the refinancing funds.
He further disputed that his credit card had been paid from those funds or that the parties had spent $10,000 on travel to (country omitted).
However he conceded that it was his case that the wife had always controlled the finances and that he did not actually know what particular items had cost or indeed exactly what had happened to the funds from the refinancing.
He was very clear, when asked, that his understanding of the amounts the wife’s parents had paid towards the purchase of Property G were not loans, but gifts. He was not aware, he said, of the wife having paid almost $900 per month towards the (omitted) Bank loan obtained by her father since 2009.
In relation to that loan the husband said:
This is how it was all set up. The money was given to us as a gift. What they did was they loaned the money to actually give us the money. Her father never liked to give money out. He always thought that it was more intelligent to pay back the loan. That way he could claim. He had a business in (country omitted) so he could claim. So that’s why it was set up that way.
In relation to the wife’s evidence that she spent $20,645 on preparing Property G for sale, the husband again could neither confirm nor deny the amount as the marriage was over by then and he said he had seen no documents to that effect.
After much clarification both from Counsel for the wife and from the bench, the husband conceded that when he claimed credit for his work on the renovations having been responsible for the increase in Property G’s value between its purchase and its sale, he had not considered the costs that had been expended on the renovations over that period.
In relation to allegations of his having withdrawn monies from the children’s account for his cigarettes and petrol, the husband said that he had never paid for cigarettes from that account and that he had only paid for petrol for the wife’s car and not his own. It was his evidence that the wife had given him the EFTPOS card for that account when doing so and that he had returned the card to her every time.
He denied that he had been unemployed for a total of about twelve months during the relationship and marriage, saying that it was about four months at the most.
He further disputed the wife’s evidence that she had paid $5,000 for his dental work, saying that the work had been carried out in (country omitted), that it consisted of a bridge over three teeth, and that it had cost $300.
He also disputed that the wife had paid for the parties’ wedding rings, saying that he had paid $10,000 for the diamond in the wife’s ring in amounts of about $500 and had begun to pay the jeweller who made the ring on (omitted) 2007, making the final payment of $300 on (omitted) 2008. He said that the ring had been a very big issue between the parties and was adamant that he had paid for the diamond.
It was put to him that his evidence in relation to the ring was not true as he had not declared the payments on his Financial Statement sworn on 13 November 2008. He denied that suggestion, and I note that on his evidence, the ring had been paid off by the time he swore the Financial Statement. His evidence was that he had withdrawn the payments in cash from an ATM near the jeweller’s store.
In any event, it is my view that engagement and wedding rings are gifts from one party to the other and do not form part of a marital property pool.
Mr Renard conceded that Ms Geach had paid for overseas travel costs for the parties during the marriage but again could neither confirm nor dispute her evidence that the sum was in the order of $25,000. He did say, however, that he was sceptical about that figure because the wife worked for (employer omitted) and the “airfares were $50”. In addition, he said that the parties stayed with the wife’s parents on several occasions and that the wife was able to obtain discounts on hotel prices at other times.
The husband was asked whether he still contended that he had lost his job in August 2012 because the wife had maliciously told his employer about the allegations that he had been stalking his step-daughter.
He was vehement in his response that that was indeed so. He was then shown a letter which was sent to him by his employer at that time, which letter sets out various allegations of serious workplace misconduct as the reason for his dismissal.
The husband’s response to that evidence was as follows:
They hid behind all those things. They did. I took them to unfair dismissal that week, don’t you worry about that, and won the damn thing. You’ve just got a copy and read it out and you’re just using it to go back after me. They made more money under me than they ever had. Yes, don’t worry; I was still furious to this day.
He then said that the claims in the letter were fraudulent. It was his evidence that because he had had a relationship with the wife’s sister, the sister’s husband, who worked at the same workplace as he, had said something to the management about that and that that is why he had lost his job. He said the contents of the letter were a fraud produced to cover up that fact.
In re-examination, the husband gave evidence that in January 2009, when he received the sum of just under $15,000 from the property settlement with his previous wife, he paid that money to the wife’s account. He said that by his calculations, made upon inspection of his accounts, he had paid a total of $117,334 into the wife’s account between 2007 and the date of separation in January 2012.
In relation to the wife’s parents lending the parties $372,968 for the purchase of Property G, the husband said he had never seen any loan documents in relation to those sums. He said further:
Not only not seen any loan documents, there has never been any discussion about a loan. That would have been the first child out of the whole family that was actually – would have been loaned money. All the rest were given the money. It would have created a precedent.

The wife’s evidence

The wife relied on her Affidavit and her Financial Statement affirmed on 17 July 2014.
In her Affidavit the wife deposes that the husband worked in approximately 8 positions throughout the marriage.
She says that throughout the marriage she was responsible for all of the children’s expenses including school fees, school uniforms and books, medical bills, holiday expenses and living expenses. She says that she received no support from the children’s fathers and that the husband assisted little in caring for the children during the marriage.
She says that her six-year-old son Y suffers from autism and that he attends after-school care provided by his primary school which costs $115 per week and for which she receives a government rebate.
Her daughter X is at university and the wife says she pays for all of X’s fees, books and living expenses.
The wife describes in great detail the circumstances of the parties’ separation on 28 January 2012, when, after the husband disclosed that he had been having an affair with the wife’s sister, an altercation ensued, police were called, and a Family Violence Safety Notice was issued requiring the husband to leave Property G.
She alleges further that the husband had been spending quite a bit of time in the roof cavity of the property since early 2011 and that her daughter X had told her that she thought she had seen a face in the ducted heating vent above her bed at around that time.
After separation she says that a friend of hers went into the roof cavity and found cable equipment in the roof “that appeared to be the kind of equipment one would run a camera from”.
She deposes that boards had been placed on the rafters for ease of movement in the roof cavity and particularly around X’s bathroom and toilet exhaust vents. She says further: “In the ducted heating vent above X’s room a hole in the section of the ducting had been cut and a piece of clear plastic taped over the hole.”
Based on those discoveries, X reported the matter to the police, who inspected the scene and questioned the husband although no charges were ever laid. X then applied for an Intervention Order against the husband on 16 April 2012.
In response, the husband applied for Intervention Orders against both the wife and X but when all three applications came before the Magistrates’ Court in July 2012, the husband consented to an order being made against him after being confronted with the evidence from the roof cavity.
The wife claims the husband’s alleged behaviour in spying on X as a negative contribution to the welfare of the family in these proceedings and says that the experience has had a traumatic effect on X.
In relation to property matters the wife says that the Property C property was purchased by her father in 2006 for $660,000 and that it was registered in the names of her father and sister. That property has not been sold and remains registered in the father’s and sister’s names.
She says that she and the husband lived there “for approximately one year prior to our marriage”. She says that all expenses of that property were paid by her parents and that she and the husband paid no rent.
Further, she deposes that her parents gave her a living allowance of about $1,000 per month which she spent on the children and on joint living expenses. She says that although the husband was working, he gave her only $50 per week towards living expenses.
She denies that either she or the husband has any legal interest in the Property C property. That is conceded by the husband and he makes no claim on that property.
In relation to the purchase of Property G, the wife says its purchase price in March 2009 was $495,000 plus transfer costs of $23,900.
She says that her parents loaned her the sum of $372,968 towards the purchase price, $150,000 of that being in the form of a loan her father obtained from the (omitted) Bank, which she continues to pay off at the rate of $895 per month. She deposes that that loan stood at $126,776 on 15 July 2014. She annexes to her Affidavit copies of bank statements showing deposits amounting to $372,968, which were paid to her between November 2008 and March 2009.
In addition to the monies borrowed from her parents, the wife says she obtained a home loan from the (omitted) Bank in the sum of $295,000, making total borrowings $667,968.
She says that those monies were spent on the purchase price and transfer costs of $518,900 and the remainder of $149,068 was spent on renovations to and refurbishment of Property G.
She says those renovations were to the bathroom and the kitchen, and that the remainder was spent on appliances, furniture, electronics, painting and landscaping.
It is her evidence that Property G was refinanced in September 2010 such that $115,133 was added to the home loan, bringing the balance owing to $395,150. The home loan was placed into the joint names of the parties at that time.
She says that money was used to pay the following:
The husband’s loan from his brother                   $15,000
The husband’s loan from his parents                   $12,000
The husband’s credit card  $2,950
The parties’ travel to (country omitted)              $10,000
A holiday to (country omitted) for the husband’s parents              $2,500
The wife’s credit card  $31,637
“Legal fees to Kabo Lawyers – Family Law
and IVOs”  $17,577
Total  $91,664
She particularises a further $20,645 as having been spent on Property G to prepare it for sale after separation in 2012, which accounts for a total of $112,309 of the extra $115,133 borrowed.
She acknowledges that she sold Property G in December 2012 and sets out the transaction as follows:
“(a)   Sale price  $730,000
LESS
(b)(omitted) Bank mortgage  $388,377
(c)Commission  $14,600
(d)Advertising  $7,298
(e)Fees  $2,657
(f)BALANCE  $317,068”
To her Affidavit she annexes the tax invoice from the real estate agent who conducted the sale confirming the advertising and commission sums charged.
The wife then sets out how the sum of $317,068 from the sale of Property G was applied:
“(a)   Purchase of Property S  $208,700
(b)     Purchase Property P  $50,000
(c)     X's University fees  $17,500
(d)     Holden (model omitted) loan  $17,559
(e)Legal fees to Kabo Lawyers – Family Law             $13,575
(f)         Holden (model omitted) loan  $8,419
(g)     Living expenses  $1,305
(h)    TOTAL  $317,058”
The wife then deposes that she purchased her current home at Property S in March 2013 for the sum of $500,000 plus transfer costs of $25,700.
She says she applied $208,700 of the sale proceeds from Property G to that purchase, obtained a $317,000 home loan from the (omitted) Bank, and paid $25,700 in transfer costs, a total of $525,700.
In August 2012, the wife deposes that she and her mother bought a property in Property P for $1,050,000. She says that she applied the sum of $50,000 from the sale of Property G to that purchase and that the property was sold in June 2014 for $1,050,000, which meant that overall, she did not recoup her investment, receiving only $26,075 from the sale proceeds.
From those funds, she says that she paid advertising fees of $1,254, repaid her father $21,000 of the monies she owed him and applied $3,100 to her (omitted) credit card.
She annexes to her Affidavit a tax invoice from the real estate agent who conducted the sale confirming the sale price.

During the relationship and marriage the wife deposes that the husband had multiple jobs and that he was unemployed for a total of about a year, when she supported him.
She acknowledges that her parents have assisted her from time to time by providing her with money in US dollars. She says that when her parents visited they would give her US$1,000 to $2,000 and she would apply those monies to accommodation, living expenses when the parties travelled overseas, and to living expenses for her children.
She specifically denies having received “an inheritance of $2,000,000 or any other amount”.
In relation to the (omitted) vehicle, the wife deposes that it was purchased in (omitted) 2010 for $46,888. She confirms the husband’s evidence that she paid a deposit of $2,000 for that vehicle and that as it was purchased for the husband’s use, he made all payments towards it after its purchase.
She is sceptical as to whether the sale price of $25,000 during the proceedings reflects the (omitted) vehicle’s true market value but she does not dispute the amount received.
As for the Honda (omitted) vehicle, the wife deposes that she purchased it in 2007, about two months after the parties began living together. She says she paid $42,285 for it, $25,000 of which came from the trade-in of the (omitted) vehicle she owned at the date of cohabitation. She says that the remainder of the purchase price of that vehicle was paid by her parents. She denies that the husband contributed any funds to that purchase.
She sold the Honda (omitted) in March 2012 for $22,000 and has retained those monies.
She says that the Holden (model omitted) vehicle was purchased for her sister and registered in her name, and that her sister had left it on the street outside the Property C property shortly after separation when her relationship with the husband was on foot. The wife says that it was in poor condition but as the lease attached to it was in her name she was forced to make the repayments from 27 January 2012. She says she paid the balance of the lease in March 2013 from the sale proceeds of Property G.
It is the wife’s evidence that the Holden (model omitted) vehicle was purchased for X in (omitted) 2013 and that the deposit was paid by her parents. Its lease balance of $8,419.89 was paid out shortly thereafter from the sale proceeds of Property G.
The wife deposes that the parties did not have joint accounts during the marriage, confirming the husband’s evidence. She says that the husband paid monies into her account and that she paid for all household expenses, including the mortgage payments, from that account.
In her Affidavit the wife says that the husband contributed the sum of $100,000 in total to her account over a three-year period. That is less than he says he paid, but is still a considerable sum.
She says that the monies paid by the husband did not cover the mortgage, and that the only other monies he paid in relation to joint expenses during the marriage were for car insurance and home and contents insurance, which he ceased paying at the time of separation.
That is, she acknowledges that the husband contributed to her account, and therefore indirectly to the home loan, as well as paying for car and house and contents insurance from the date she purchased Property G in March 2009 to the date of separation in late January 2012.
The wife estimates that after paying the family’s living expenses, she would contribute about $50 to $100 per week to the mortgage.
She further deposes that during the relationship and marriage the husband had access to an account she had established for her children. She says the husband withdrew money from that account every fortnight or so to pay for his cigarettes and petrol. She says that while she made the majority of deposits to that account, the husband may have been contributing to it towards the end of the marriage. She says that its balance was $3,400 at the date of separation and that it now has a balance of $450.
The wife deposes that between 2007 and the end of 2103, the husband had transferred “over $70,000” from the one bank account he has disclosed into other accounts which he has not disclosed. She says that fact was discovered only “immediately prior to filing this affidavit and (I) have therefore not had time to subpoena the bank records” in relation to those transactions. I note that no mention was made of those funds at trial.
She says that documents she had been able to subpoena disclosed two credit cards which the husband had used during the marriage and which he had failed to disclose. She does not provide any details in relation to those accounts and again, they were not mentioned at trial.
The wife further deposes that between the time when she began working for (employer omitted) in 2008 and early 2009, the husband had arranged for Centrelink rebates on the wife’s child care expenses for Y to be deposited to his account, telling the wife that she was not eligible to receive the rebate because she was not an Australian citizen.
It was only when she accidentally saw the child rebate tax statement addressed to the husband in January 2009 that she called Centrelink and discovered that what he had told her was wrong. She then immediately arranged for the rebate to be paid into her account. She deposes that a total of $8,166 from the child care rebate was deposited into the husband’s account in that time.
In addition, she says that shortly after separation she discovered that the husband had been claiming X and Y as his dependants for tax purposes and had asked his accountant to claim X’s expenses, all of which the wife says she had been paying, against his tax liability.
The wife says that during the marriage, she paid about $5,000 for extensive dental work for the husband, and that she had paid the sum of $15,000 for the parties’ wedding rings in 2008. In addition, she says she paid for the parties’ overseas travel, a total of about $25,000 over the course of the marriage, and that her parents had paid for their wedding in (country omitted) which cost about $25,000.
In cross-examination, she was very specific in her evidence about what the husband had and had not contributed to the family during the relationship and marriage.
She confirmed her evidence that the husband had paid amounts totalling about $100,000 to her account over the period of cohabitation and marriage. She also conceded that he had paid for the house and car insurance.
She denied however that those amounts had been “90%” of his income or that he had in fact deposited more to her account, and she further denied vehemently that the husband had ever paid for groceries. She also denied that he had paid the whole amount of his property settlement from his previous marriage into her account.
Ms Geach conceded that while the husband had done some work on Property G, the choice of that property had been hers and X’s. She insisted that Mr Renard had taken no part in the search for the property.
She acknowledged that he had changed the light globes and electrical plugs, mown the lawns, painted the garage walls, tiled the stairwell cupboard, installed floor-to-ceiling cupboards and drawers in the laundry, painted the outside of the fence, hung the mirrors, built the bi-fold doors to the study, retiled the laundry, taken part in domestic chores like cooking and cleaning and installed the vanity unit in the bathroom among other tasks.
She was equally clear that he had not installed cupboards in the upstairs bedrooms, helped her to rebuild and plant the garden beds, fixed the handrail on the stairs, retiled the kitchen or the bathrooms, performed any plumbing, repainted the downstairs ceilings, painted the floor or installed a bench in the garage, installed tracking for sliding doors, installed the ceiling fan or repaired air conditioning vents.
She did concede that he had done work on the heating and cooling ducting but said that that was in order to spy on X. She attributed the same motive to work he did on repairing roof leaks.
She was asked several questions about monies she had received from her parents, and it was her clear and repeated evidence that while they had paid her a living allowance when she first came to Australia, that arrangement had ceased when she began to work for (employer omitted) in September 2008. She said she did not know whether her parents were wealthy.
She acknowledged that she had sold Property G and the Honda (omitted). motor vehicle after separation and that she had retained the proceeds.
She confirmed that the Property P property had been sold and that she had not recouped her full investment from that sale. It was her evidence at trial that the $50,000 she invested in that property was a loan from her mother and that she was paying it back monthly, although no supporting evidence was provided in relation to that assertion, and in her affidavit material she said the sum had been taken from the sale proceeds of Property G.
Ms Geach clarified that sums remained after separation from the extra $115,000 borrowed by the parties in 2010, and that it was from those sums that she had paid her former lawyers between $17,000 and $18,000 (which she acknowledged as a post-separation debt) and her credit card debts of about $32,000.
She also confirmed that she had spent about $20,000 preparing Property G for sale, saying that significant amounts of the work performed by the husband had to be either repaired or redone.
She denied “controlling” the family finances, and also denied any impropriety or inappropriateness in her email correspondence with the husband’s employer in the months before he was dismissed from his employment in August 2012. That correspondence gave the employer information about the circumstances of the parties’ separation, the wife’s intervention orders and the allegations against the husband in relation to stalking X. She said she was simply responding to questions asked of her by the employer and that she did not know until afterwards that the husband had lost his job.
Emails produced at trial confirmed that the correspondence began in the context of the employer trying to get in touch with the wife’s brother-in-law who also worked for that employer.
However, when she was asked to inform the court of the relevance of that line of questioning to the matters before the court, counsel for the husband could only say that the matter went to the credit of the wife. She shortly thereafter abandoned that line of questioning.

The evidence of the wife’s mother

The wife’s mother, Ms P (“Ms P”) affirmed an Affidavit on 9 May 2014. That Affidavit was interpreted to her by a friend and in those circumstances, it was interpreted to her by a professional interpreter and she re-affirmed it on the second day of trial. In the circumstances I allowed the wife to file that Affidavit as it was identical to the one sworn on 9 May and filed on 18 May.
In her Affidavit, Ms P says that the wife is one of five children, two of whom are daughters, of herself and her husband.
She confirms the wife’s evidence that she and her husband loaned the wife approximately $368,000 for the purchase of Property G, made up of cash and a loan from the (omitted) Bank secured by the Property C property. She says that the wife has been repaying the bank loan since 2009 at the rate of $895 per month.
She also confirms the details of the purchase and sale of the Property P property.
In her oral evidence, given through an interpreter, Ms P gave no further evidence-in-chief, but was cross-examined by counsel for the husband.
In cross-examination, she denied that she and her husband own any property in (country omitted) apart from the resort and the family home.
In relation to the husband’s contributions to Property G, Ms P could say little except that when she visited, he was “always going to fix something upstairs”. Anything else she said was hearsay, having been told to her by the wife.
It was her evidence that the $220,000 in cash advanced to the wife for the purchase of Property G was a loan and that it is still outstanding.

Evaluation of Evidence

In the witness box the husband was confident, and somewhat belligerent, clashing with counsel for the wife and often interrupting him during questioning. He had to be asked several times to simply answer the question asked and not to make statements when being questioned by both counsel.
He expressed outrage at the wife’s conduct in her correspondence with his employer in 2012 and blames her and her alone for the loss of his employment at that time. He impressed as a man who felt entitled to compensation for that.
From the filing of his Outline of Case Document until the point of final submissions, when the claim was abandoned, he was seeking that the value of the resort, which he said had been sold, be included in the marital property pool. That was an extraordinary claim as that property has never been the property of the wife or the husband in any sense.
He seemed to want to be seen as a naïve victim in these proceedings – a man who had been duped by his controlling and dishonest wife and who was seeking retributive justice.
In relation to the contributions he claimed to have made to the improvements at Property G, he gave the impression of somewhat exaggerating the extent of his work, although it must be said that the wife corroborated some of what he said.
The husband came into this marriage with no real property and with significant debt. That debt was paid through the refinancing of Property G, whose mortgage debt the wife now carries as part of the mortgage owed on her Property S property.
It is somewhat ironic that the husband currently finds himself in similar circumstances after the marriage has ended, with no real property and significant debt to his brother and father.
Nevertheless, during the marriage, the husband paid significant sums from his salary into the wife’s account, from which the mortgage loan, groceries and other bills were paid. The wife concedes that the quantum of that contribution was $100,000. The husband says it was $117,334. I do not consider that the difference is particularly significant over a four-and -a-half year period.
I note that the husband’s evidence about the amount was somewhat contradictory, claiming at one time that he paid $1100 per work, at another that it was $900 and at yet another that he had paid $550 per week.
Given the wife’s concession about his financial contributions, I find that he contributed the sum of about $102,000 to the account from which the mortgage for Property G was paid between the purchase of the property in 2009 and the date of separation in January 2012.
In addition, it is conceded that he paid for the house and car insurance and the repayments on the (omitted) motor vehicle.
The extent of his non-financial contributions to the renovations is more difficult to quantify. As I have said, he impressed as exaggerating those contributions somewhat and the wife was very specific about what work he had or had not done. I am not prepared to quantify those contributions except to say that they were significant.
Therefore I therefore find that the husband did make significant contributions to the conservation and improvement of Property G through the payments to the wife’s account and work on the renovations.
Of course the wife made the whole of the financial contributions to the acquisition of Property G, whether via the monies provided by her parents or through the mortgage she obtained at the time of purchase.
The wife impressed as a plain-speaking woman who wanted the court to know all the details of her daughter’s experience of the husband’s alleged spying on her.
She sought to have that alleged behaviour taken into account as a negative contribution to the welfare of the family.
However, no evidence was provided by either X, who is now an adult, or any professional counsellor or psychiatrist in relation to the effect on X of the alleged behaviour.
I note that the police arrested the husband in relation to those allegations but that he was never charged with any offence.
In those circumstances, I cannot find on balance that the husband made a negative contribution to the welfare of the family by way of spying activities against X.
The wife acknowledged the husband’s financial and non-financial contributions to Property G in considerable detail and was very sure about exactly what he had and had not done as far as the renovations were concerned. I found her on balance to be a credible witness.
In paying the husband’s pre-marital debts from the refinancing of Property G, I find that the wife made a considerably greater contribution to the payment of the parties’ debts.
On the basis of the wife’s overwhelming financial contributions to the acquisition of Property G and the financial and non-financial contributions of both parties to the conservation and improvements to the property, I find that the parties’ contributions should be apportioned as to 75% to the wife and 25% to the husband.

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

Section 79(4) of the Act states that when making orders adjusting property interests as between married parties, the court must consider the matters set out in s.75(2) as well as the contributions the parties have made to the property.
Section 75(2) states:
(2) The matters to be so taken into account are:
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party's role as a parent; and
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

(a) the age and state of health of each of the parties
The husband is 50 years old and the wife 47 and the court is unaware of any health issues of either party.
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
The husband’s Financial Statement sworn 16 June 2014 and filed 6 August 2014 states his income as $1630 per week, or $84,760 per year.
He owns only household contents and he has debts of some $30,669.
His superannuation entitlements are worth $131,489.
There is no evidence before the court that he does not have the physical and mental capacity to continue to engage in full-time employment.
In her Financial Statement sworn 17 July 2014, the wife states her income at $1409 per week, or $73,268 per year.
She owns the Property S property subject to two loans, two motor vehicles, and household contents, significantly more property than that owned by the husband.
Her superannuation entitlements are worth $21,576.
She has been engaged in full time employment for the past six years and there is no indication that she suffers from any health condition that would prevent that situation continuing.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
There are no children of the marriage.
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain
The husband must support himself, and he has a son for whom he pays child support, but that son is now fast approaching the age of 18, when child support liability will no longer apply.
The wife must support herself, and she has the full-time care of Y, who is six years old and has some special needs. It is her evidence that she receives no child support from Y’s father. She will have that responsibility for at least another twelve years.
She also supports her 19-year-old student daughter who will presumably be in tertiary education for several more years.
(e) the responsibilities of either party to support any other person
There is no evidence before the court that either party has responsibilities to support any other person.
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party
There is no evidence before the court of the husband’s eligibility for Centrelink benefits.
The wife receives Family Tax Benefits and a child care rebate for Y’s care while she works.
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable
The husband is living with his parents. During the marriage he lived in a house either owned by his parents-in-law or by the wife, although as I have found, he did make contributions to the wife’s property.
The wife lives in her own home.
It is almost impossible for parties living separately to maintain the standard of living they experienced during a marriage unless they are both in receipt of high incomes, which is not the case here.
The husband will almost inevitably have a lower standard of living in the aftermath of this marriage than he had during it, and the wife’s level of debt will ensure that her standard of living will be lesser than it was during the marriage.
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income.
Both parties are in full-time employment and there is no evidence that this factor is relevant in this case.
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant
If I make an order that the husband receives a substantial payment as a result of these proceedings, then his creditors are more likely to be paid. If I make an order for a non-substantial payment, it is likely that his creditors, who in the main are his brother and father, will have to carry that debt for a longer period.
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party
During the relationship and marriage, each party worked and therefore contributed to the other’s income, property and financial resources.
I note that the husband alleges that the wife contributed to his losing his employment in 2012 and although it was not specifically pleaded, it may be that a finding that she had done so would mean she had contributed negatively to his overall earning capacity.
However, the evidence before the court, in the form of the letter sent to the husband at the time he was dismissed, indicates that the wife’s behaviour was not the cause of that dismissal. The husband’s claim that the contents of the letter are fraudulent are not supported by any other evidence, and I therefore cannot find that the wife contributed to his dismissal and therefore in a negative way to his earning capacity.
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
The marriage lasted less than four years and its duration cannot be said to have affected either party’s earning capacity.
(l) the need to protect a party who wishes to continue that party's role as a parent
The wife will have the care of Y for at least the next twelve years. However, she has worked throughout the marriage and has given no indication of wishing to become a full-time parent.
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation
There is no evidence that either party is cohabiting with another person.
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party
I do not propose to make any order that would affect the property of either party in the sense of property having to be sold.
As far as the court is aware there is no vested bankrupt property in relation to a bankrupt party in this case.
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii)
This factor is not relevant in this case.
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage
Again, there are no children of this marriage.
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
I take into account the fact that the wife carries all the debt from the marriage. While the husband has debt, it is not joint debt, whereas the debt of the wife was almost all accumulated during the marriage, and indeed, some of it was the husband’s pre-marriage debt. Of course, she also retains the residual value of Property G in the equity she holds in the Property S property.
(p) the terms of any financial agreement that is binding on the parties to the marriage
There is no financial agreement that is binding on the parties to the marriage.
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
The court is unaware of any Part VIIIAB financial agreement that is binding on either party.
Taking into account all the above factors as a whole, I find that the wife’s need to take care of Y, the husband’s greater income and significantly greater superannuation entitlements, and the fact that the wife retains almost all of the jointly acquired debts of the parties, means that an adjustment of 5% (five per cent) in her favour should be made to the contributions-based entitlements.

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

Overall then, it is the finding of the court that the non-superannuation property of the parties ought to be divided 80:20 in favour of the wife.
In order to effect such a settlement, the husband would need to get 20% (twenty per cent) of the net value of the parties’ non-superannuation assets. I have found those assets to be worth $181,259, and 20% of that sum is $36,251.80.
The husband has already retained $9,126 from the sale of the (omitted) motor vehicle, so that should be deducted from any amount he is to receive. That means he should receive further non-superannuation assets worth $27,125.80. It is appropriate in all the circumstances that he should receive a cash payment for those assets.
The superannuation of the parties is worth $153,065 although only the wife’s entitlements of $21,576 have been solely accrued during the marriage.
The principle upon which I calculate any adjustment to superannuation entitlements is that there should be an equalisation of the entitlements the parties accrued during the relationship and marriage.
The husband should therefore receive a half share of the wife’s entitlements, or $10,788.
When the husband swore a Financial Statement in proceedings between him and his previous wife on 13 November 2008, his superannuation entitlements were said to be worth $79,395. That was about eight months after the marriage, and the husband was working full-time at that time, so at the date of cohabitation, some sixteen months previously, they must have been worth somewhat less. There is, however, no evidence of their worth at the time of cohabitation.
If they were worth $79,395 at the beginning of the relationship, a calculation which favours the husband considerably, the wife would be entitled to a half share of those entitlements that had accrued during the relationship. That is, she would be entitled to a half share in $131,489 minus $79,395, which amounts to $26,047[3].
[3] ($131,489 - $79,395) /2
When the amount the husband and wife should receive from each other’s superannuation entitlements is aggregated, the result is a payment by the husband to the wife of $15,259.
I will therefore make an order that the wife pay to the husband the sum of $27,125.80, and that there be a superannuation split of the husband’s entitlements using a base amount of $15,259 by way of final property settlement between them.
However, I have no evidence at this time that the trustee of the husband’s superannuation fund has been afforded procedural fairness in relation to any superannuation split, and the orders I make will therefore be interim orders until that process can be completed.
Once evidence of the trustee having been afforded procedural fairness is provided to the Court, I will make the orders in relation to the superannuation split as final orders.

I certify that the preceding two hundred and seventy five (275) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 20 November 2014

[2014] FCCA 2605

20 November 2014

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Procedural Fairness

Remedies

Costs

Injunction