REYNOLDS & MOORE

[2014] FamCA 1174

FAMILY COURT OF AUSTRALIA

REYNOLDS & MOORE [2014] FamCA 1174

FAMILY LAW – PROPERTY – competing applications for property settlement – wife’s application for lump sum spousal maintenance – short marriage of less than two years – no children – where the husband made all financial contributions during the marriage – where the wife made minimal non-financial contributions – wife’s allegations of family violence not established – wife’s oral application for lump sum spousal maintenance dismissed – husband’s application for costs reserved at previous hearing and costs of trial dismissed.

Evidence Act 1995 (Cth) s 140.

Family Law Act 1975 (Cth) ss 72, 74, 75, 79, 81, 90MT, 90MZA and 117.
Family Law Rules 2004 (Cth) rr 13.01, 13.04.

Antmann v Antmann (1980) FLC 90-908

Bevan & Bevan (2013) FLC 93-545
Bolger & Headon (2014) FLC 93-575
Brandow & Brandow [2010] FMCAfam 1026
Briginshaw & Briginshaw (1938) 60 CLR 336
Coghlan & Coghlan (2005) FLC 93-220
Daines & Daines [2014] FamCAFC 61
G & G [2006] FamCA 877
Kennon & Kennon (1997) FLC 92-757
Marsh & Marsh (2014) FLC 93-576
Norbis & Norbis (1986) 161 CLR 513
Spiteri v Spiteri (2005) FLC 93-214
Stanford v Stanford (2012) 247 CLR 108

APPLICANT: Ms Reynolds

RESPONDENT: Mr Moore

FILE NUMBER: MLC 5924 of 2012

DATE DELIVERED: 23 December 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 27 – 30 May, 2 – 6 June 2014

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Whitchurch

SOLICITOR FOR THE RESPONDENT: Kenna Teasdale Lawyers

Orders

1. Leave is granted to the wife to amend her application to seek an order for lump sum spousal maintenance of up to $30,000.

2. Except as otherwise dealt with in these orders, the wife’s Amended Initiating Application filed 4 September 2013 is dismissed.

3. The wife’s application for spousal maintenance is dismissed.

4. The watch formerly owned by the husband’s father is declared to be the property of the husband as against the wife.

5. Within 30 days of the date of these orders:

   (a)       the husband pay the wife the sum of $20,000 to be paid as follows:

   (i)$5,300 to the firm of solicitors McDonald, Slater and Lay; and

   (ii)the balance to the wife;

   (b)the wife sign all documents and do all acts necessary to transfer her share and interest in the property at P Street, Suburb X, Victoria and being the property more particularly described in Certificate of Title volume … Folio … (“the X property”) to the husband at the husband’s expense;

   (c)the wife sign all documents and do all acts necessary to resign as a director of H Pty Ltd and J Pty Ltd at the husband’s expense;

   (d)the wife sign all documents and do all acts necessary to transfer the shares in H Pty Ltd and J Pty Ltd to the husband at his expense;

   (e)the wife sign all documents necessary to be removed as a beneficiary of the Moore Reynolds Trust at the husband’s expense;

   (f)the husband and wife do all acts and things necessary to close any joint bank accounts held by them including the bank accounts for H Pty Ltd and J Pty Ltd, with the husband to retain the proceeds of such accounts;

   (g)the husband and wife sign all documents and do all things necessary to discharge the wife’s liability for the existing Bendigo Bank mortgage together with the line of credit secured over the X property, at the expense of the husband.  The husband will indemnify the wife with respect to the mortgage payments and the line of credit secured over the X property; and

   (h)the wife do all acts and things and sign all documents as required to discharge the Caveat No: … secured against the title to the X property by Ian Charles Slater, at the wife’s expense.

6. The parties each surrender any claim or entitlement they may otherwise have but for these orders to the other’s superannuation entitlements.

7. Having been accorded procedural fairness in relation to the making of these orders, orders (8) to (12) are binding on Perpetual Superannuation Limited (“the Trustee”) as Trustee of the Perpetual Select Super Plan (“the Fund”).

8. The base amount to be allocated to the wife from the husband’s interest in the Fund is $45,000.

9. In accordance with s 90MT(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), whenever a splittable payment becomes payable in respect of the superannuation interest of the husband in the Fund, the wife is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount of $45,000 and there be a corresponding reduction in the entitlement of the husband.

10. Orders (8) and (9) of these orders have effect from the operative time, which is seven days from the date of service of sealed court orders upon the Trustee.

11. The parties must do all acts and things and sign all documents as may be required to make a request pursuant to regulation 7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 (Cth) for the transfer or rollover of the transferrable benefits created by orders (8) and (9) out of the Fund to a compliant superannuation fund of the wife’s choice in accordance with regulation 7A.12 of the Superannuation Industry (Supervision) Regulations 1994 (Cth).

12. Until the happening of any of:

    (a)the establishment of a separate account in the name of the wife in the Fund; or

    (b)the transfer or rolling over into another superannuation fund of the payment split created by orders (8) and (9) of these orders; or

    (c)the wife satisfying a condition of release and being paid the payment split which is created by orders (8) and (9); or

    (d)the wife executing a waiver of her rights within the meaning of s 90MZA of the Act in relation to the payment split created by orders (8) and (9) of these orders;

    the husband be and is hereby restrained by himself, his servants or agents from executing a Death Benefit Nomination in favour of any person or doing any other act or thing which would render any part of his interest in the Fund a “non-splittable payment” within the meaning of regulations 12 or 13 of the Family Law (Superannuation) Regulations 2001 (Cth) AND IT IS REQUESTED THAT the Trustee of the Fund give effect to this order.

13. Each party and the trustee of the Fund have liberty to apply in relation to the implementation of orders (8) to (12) inclusive.

14. Each party keep the other indemnified with respect to any liability in their sole name, including any liability encumbering any item of real or personal property to which that party is entitled pursuant to these orders.

15. The husband retain his motor vehicle to the exclusion of the wife.

16. Any joint tenancy of the parties in any real or personal property is expressly severed.

17. The husband and wife will otherwise retain to the exclusion of the other all furniture, chattels and other belongings in their possession, save that the wife return to the husband the plastic box of personal documents including photographs that she removed from the former matrimonial home at the time of separation and all the husband’s documents including his degrees and M certificate.

18. The wife is to make every effort to recover the husband’s watch and return it to him if and when found by her.

19. The husband’s application for costs of $5,160 reserved from the hearing on 16 December 2013 is dismissed.

20. The husband’s application for costs in the trial is dismissed.

21. All extant applications are otherwise dismissed.

AND THE COURT NOTES THAT:

A.Until such time as the wife’s interest in the X property is transferred to the husband, the interim order of 16 December 2013 remains in full force and effect.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Reynolds & Moore has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5924 of 2012

Ms Reynolds

Applicant

And

Mr Moore

Respondent

REASONS FOR JUDGMENT

Introduction

1. This proceeding concerns competing applications for final alteration of the property interests of the parties to a marriage.  During the trial, the applicant wife also sought lump sum spousal maintenance claiming an inability to support herself adequately.  

2. There are no children of the marriage.

3. The wife’s application for property settlement was made on the basis of

   
   

   non-financial contributions during a short marriage of approximately 20 months.

4. An encumbered residential property at P Street, Suburb X (“the X property”) is the only real property of the marriage.  The purchase of this property was settled approximately two months before the parties separated.  The property is registered in the joint names of the parties.  It was tenanted under lease at the time of trial.  

5. It is uncontroversial that the husband made all financial contributions to the property of the marriage.  However, the wife claimed that she made

   
   

   non-financial contributions which were more arduous than necessary because she was subjected to violence by the husband.  In addition to these allegations of violence, the wife claimed that the husband controlled all aspects of their finances and diverted her from paid work by telling her that she did not need to work.  The husband denied all of these allegations. 

6. The wife sought that in return for transferring her interest in the X property to the husband, he pay her a lump sum of $186,500 and that he transfer $53,500 from his superannuation fund to her superannuation fund.

7. The husband ultimately sought that there be a division of the property of the marriage by the wife transferring to him her interest in the X property in return for a lump sum payment of $20,000 and a superannuation splitting order to provide the wife with the sum of $45,000 from his superannuation fund.  The husband submitted that this represented an adjustment of 90 per cent to him and 10 per cent to the wife of the total property of the marriage, being assets and superannuation.

8. The wife’s former solicitors lodged a caveat on the X property to secure their unpaid legal costs.  The husband thus sought an order that $5,300 from that $20,000 sum be paid to the wife’s former solicitors, and that the wife do all acts and things and sign all documents as required, in order to discharge that caveat.   

9. The husband sought that the wife transfer to him her shares in H Pty Ltd and J Pty Ltd and do all things to resign as a director of those companies at his expense.  These companies were established by the husband in September 2009 for the benefit of the parties, with a view to acquiring investments together.  However no investments were acquired.  There is a total amount of $3,450 in the bank accounts of those two companies.

10. The wife indicated during the course of proceedings that she sought to relinquish any joint responsibility for the companies, but that her entitlement to the shares be adjusted in any property settlement.

11. The parties agreed that the husband would continue to take responsibility for the joint liabilities of the mortgage on the property and the $15,000 line of credit from the bank, which had been drawn down and used for renovations to the property.

12. The parties agreed that they should each retain their motor vehicles but the wife revealed at trial that she had sold her motor vehicle post separation and used the proceeds for living expenses.

13. In the course of the trial, the wife amended her application and sought that the husband pay her a lump sum of up to $30,000 for spousal maintenance.  This amendment was not opposed by the husband who, through his counsel, indicated that he wanted to finalise all financial arrangements between the parties to avoid any further litigation. 

14. At the conclusion of the trial, counsel for the husband submitted that the husband’s proposal for adjustment of property was sufficient to satisfy any responsibility of the husband to pay spousal maintenance.  He also relied upon the post separation payments that the husband had already made to the wife, for her support, to satisfy any responsibility.

15. Counsel for the husband also sought an order for costs fixed and reserved from a previous hearing and further costs incurred during the trial on the basis of the manner in which the trial was conducted by the wife.

Background

1. The parties were married in February 2009.  They separated in February 2011 and were divorced following the conclusion of this trial on 11 August 2014 (effective 12 September 2014). 

2. The wife is 42 years of age and is in receipt of a government Disability Support Pension.  Her most recent employment has been in casual unskilled work.  The wife’s affidavit material is unclear as to her employment background, but during the trial she claimed to have worked as a lawyer in 2003 and to have spent 10 years studying at university.  In cross-examination, she agreed that her LinkedIn profile described her as a corporate lawyer.  When it was suggested that the website indicated that she worked at a government agency as a corporate lawyer, she stated that she had worked as a graduate non-lawyer at the agency.

3. The wife claimed to suffer from a disability, namely a severe form of dyslexia which causes her to become nauseous if she reads black print/text on white paper.  In response to the request of the wife, the solicitors for the husband used coloured paper, which she provided, for all documents and correspondence.  The husband did not challenge the fact that the wife had dyslexia but did not accept that the dyslexia had the serious consequences claimed by the wife.  The wife also claimed to suffer from other disabilities which were not clearly identified.

4. The husband is 53 years of age and has been employed full-time as a financial professional since 11 March 2014.  He was unemployed for a period of one year after being made redundant by his previous employer, V Company, on 31 March 2013.  He has an employment history of working as a financial professional.

5. At the time the parties commenced their relationship, the husband owned a property, registered in his sole name, at H Street, Suburb Z (“the Z property”) valued at approximately $900,000 with a mortgage of approximately $525,000 secured over the property.  He had savings of about $20,000, shares valued at approximately $50,000 and superannuation of approximately $100,000.  He was earning approximately $200,000 per annum.

6. The parties did not live together before their marriage.  When the parties married, the Z property was being renovated.  The parties never lived in that property after they married.  The parties agreed that the wife had told the husband that she could not live in the property because she had difficulties with the staircase.  

7. Following an argument in April 2009, the parties separated and had no face-to-face contact until June of that year.  They resumed their relationship in about July 2009.

8. The Z property was sold in approximately mid-2010 and there is no disagreement between the parties that part of the proceeds of sale was used to purchase the X property.

9. The parties separated on a final basis on 9 February 2011 when the wife left the husband without notifying him of her whereabouts.

10. The wife commenced proceedings in this Court on 3 July 2012 seeking orders for property settlement by way of a lump sum payment from the husband in return for the transfer of her interest in the X property to him.  The husband filed his Response on 29 August 2012 seeking that the wife’s application be dismissed.  On 19 September 2013 the husband amended his Response seeking orders, inter alia, for the wife to transfer her share in the X property to him at his expense and for the parties to each retain their own motor vehicles.

11. The trial was listed for 16 December 2013 but was adjourned on the contested application of the wife to provide her with further time to prepare for the trial because she was unrepresented.  The parties agreed to participate in a conciliation conference which was ultimately unsuccessful.  I adjourned the final hearing of the matter until 14 April 2014 to hear objections to each of the parties’ affidavit material and reserved the husband’s costs, fixed at $5,160.

12. At the hearing on 16 December 2013 I also made orders, by consent, providing for the husband to have the sole use of the X property and to pay all outgoings until further order.  

13. On 4 February 2014 the wife further amended her application.  The orders she sought included an order for the husband to pay her the sum of $1.9 million and an order for her to transfer her interest in the X property to the husband contemporaneously with this payment.  This was amended further at the time of the trial as previously outlined.

14. The trial commenced on 27 May 2014 and was initially listed for a period of four days but extended well past this time due to the requirements of the wife.  Specifically, on each day of the trial the wife required rest periods because she said she suffered from headaches and tiredness.  She also provided an unsworn medical certificate for one day of the proceedings where she was unable to participate due to suffering a migraine.

The Evidence

1. The documents relied upon by the parties are set out in Annexure A and incorporated into these reasons.  The affidavit evidence, excluding material that had been ruled inadmissible, was admitted subject to weight, if any.

2. It is not possible for me to comprehensively consider in these reasons every aspect of the evidence, documentary and oral, that came before me during these proceedings.  Nevertheless, I have taken the totality of the evidence into account.  If a particular item of evidence is not mentioned here, it should not be assumed that I have not had regard to it.

3. Each of the parties was cross-examined.  Counsel for the husband cross-examined the wife’s witness Dr D (optometrist).  The wife’s witness Ms N (optometrist) was not available for cross-examination; however, the wife relied on her affidavit.  The husband did not require the wife’s other witnesses Ms B (psychologist), Ms U (the wife’s friend), Ms K (social worker) or Mr W (property valuer) for cross-examination and their evidence is unchallenged. 

The Issues

1. Whilst the property of the marriage was largely agreed, the following issues could not be reconciled between the parties:

   ·the amount of any payment to be made by the husband to the wife for the transfer of her interest in the real property;

   ·the amount of any payment to be made by the husband to the wife from his superannuation fund;

   ·whether any property adjustment should be made in favour of the husband for the amount of $50,000 paid by him to the company C Pty Ltd during the marriage;

   ·whether there was a course of violent conduct by the husband towards the wife during the marriage which can be demonstrated to have had a significant adverse impact upon the wife’s non-financial contributions to the marriage or have made her contributions significantly more arduous than they ought to have been;

   ·whether the husband financially controlled the wife during the relationship in a form of economic abuse;

   ·whether the husband wasted the joint property of the parties through gambling;

   ·whether any lump sum maintenance should be paid to the wife having regard to any property settlement; and

   ·the extent of the wife’s future needs.

2. The husband asserted that the X property was registered in joint names because of “the marriage and survivorship”.

3. The wife asserted that the property was registered in joint names because of an agreement reached at the beginning of the marriage that she was entitled to half the proceeds of the sale of the husband’s Z property which he acquired prior to the relationship. 

4. The husband also sought the return of a watch which had belonged to his late father and which he claimed the wife had removed from the house in his absence.  The wife deposed that she had never seen this watch and did not know of its existence.  She deposed that she did not remove it from the house.

1. However, she agreed in cross-examination that other persons had assisted her to remove property which included personal papers of the husband.  She stated that this property was stored at a refuge and then returned to the husband’s solicitors.  There was no application by the wife claiming any interest in the watch.  Consequently, I will make a declaration as to the husband’s ownership of that property as against the wife.  In the event that the wife retrieves any other personal property of the husband stored at the refuge, it is appropriate to make an order for the return of that personal property by the wife, to the husband.

Standard of proof

1. In determining the facts, I have applied s 140 of the Evidence Act 1995 (Cth) which is the civil standard of proof. Where I have made findings, I am satisfied that the facts have been proven on the balance of probabilities.

2. Regarding the wife’s allegations of family violence, sexual and physical abuse, and financial control, I have applied s 140(2) of the Evidence Act 1995 (Cth), which imposes a statutory requirement to take into account the nature of the cause of action or defence, nature of the subject-matter of the proceeding and the gravity of the matters alleged.

3. This takes account of the seriousness of the allegations made, the inherent unlikelihood of the occurrence of the events alleged and the gravity of the consequences flowing from a finding of family violence, sexual or physical abuse and financial control.[1]

Assessment of the Parties

[1] Briginshaw & Briginshaw (1938) 60 CLR 336.

Assessment of the wife as a witness 

1. The fact that the relationship failed has clearly impacted upon the wife’s perspective and recollection of events during the marriage.  Her evidence has been coloured by her strong belief that she is the victim of abuse by the husband.  This is a belief which cannot be substantiated on the evidence.  Relevantly, there was no evidence of the police charging the husband for any offences or the wife seeking medical treatment for any injuries.

2. In exercising any fact-finding function, the Court should avoid undue reliance on the demeanour of witnesses when considering credibility.[2]  I am mindful of the caution expressed in the authorities because the appearance and demeanour of witnesses in a stressful courtroom environment is somewhat artificial.  However, the demeanour of the wife during the trial was particularly remarkable.  She remonstrated with the husband during cross-examination with gusto and stamina.  This presentation was entirely inconsistent with her insistence that she have long breaks and rest periods during the trial because of a disability.

   [2]  Hoult & Hoult (2013) FLC 93-546 at 87,261.

3. Thus, while there must be a significant degree of circumspection in relying upon the appearance and demeanour of a witness when assessing credibility, this was a case wherein the manner in which the wife conducted her case was peculiarly relevant.  I do not necessarily question that the wife found it easier to read on coloured paper due to her reading difficulties, but I found her inconsistent approach to her perceived disabilities confusing and questionable.

4. The husband did not challenge the wife’s claim that she suffers from dyslexia but deposed that he only became aware of this during the course of these proceedings.[3]

   [3] Affidavit of the husband sworn 3 December 2013 at [56](b) and (c).

5. While I am satisfied that the wife suffers from dyslexia, I have reservations about her credibility regarding the nature and extent of this and her other alleged disabilities due to the lack of independent evidence to support these claims.

6. I also have reservations about the credibility of the wife with regard to the serious allegations she has made against the husband which have not, on balance, been established. 

7. The wife claimed to have completed a law degree but the evidence is unclear as to whether she has ever qualified or practised as a lawyer.  

8. On balance I find that the wife was an unreliable witness.

The Wife’s Witnesses

1. The wife relied on the evidence of a number of witnesses, five of whom were not cross-examined at trial and their evidence remains untested.  The evidence of both Ms N and Dr D are described immediately below, however the evidence of the wife’s other witnesses is particularised later in this judgment.

Ms N

1. The wife relied upon the evidence of Ms N, optometrist, who swore an affidavit on 20 November 2013 annexing a letter by her dated 5 June 2013.  This evidence was untested as the witness was not available for cross-examination.

2. Ms N deposed that the wife suffers from marked Meares-Irlen Syndrome (pattern glare), unstable eye alignment skills and “seemingly severe dyslexia”.

3. She stated, “[The wife] describes that she has had a long-standing history of dyslexia”.  Ms N further stated:

   Brief screening of key visual verbal and auditory skills shows [the wife] to have seeming extraordinary marked difficulty with the rapid language retrieval of symbols … and marked difficulty with tasks that involve auditory working memory and sequencing. These difficulties are certainly hallmarks of dyslexia - but of a very marked variety indeed.

   …

   In a working environment [the wife] will certainly need to wear her tinted lenses, or constantly adjust her screen colour background, and search out the most comfortable shade of paper. She will really benefit from using voice-activated software, and also software that can read documents to her.

   For optimum performance she will need to be able to work in a quiet environment – a partitioned area in an office for example.

4. Although I have evidence of Ms N’s qualifications, I have no evidence as to whether Ms N is appropriately qualified to diagnose dyslexia.  Ms N appears to have relied, at least in part, on the wife’s self-report.  She could not be cross-examined as to how she made her diagnosis of Meares-Irlen Syndrome and dyslexia or about the capability of the wife for employment.  I therefore give her evidence little weight.

Dr D

1. The wife relied upon the evidence of Dr D, lead optometrist at the Australian College of Optometry, who swore an affidavit on 14 November 2013 annexing a letter by her dated 23 May 2013.  Dr D was cross-examined at trial. 

2. Dr D deposed that the wife attended her clinic on 25 May 2013 and informed her that she had been diagnosed with dyslexia at five years of age.  Dr D deposed that she tested the wife’s “visual sight, binocular eye movements, accommodative (focusing) abilities, visual processing and ocular health”.

3. In cross-examination Dr D agreed that the wife attempted testing but was unable to complete any of the tests because she stated that she could not look at or process black print on white paper.  Dr D agreed that she does not test on coloured paper and that patients are only tested on white paper.  Dr D agreed that there was no conclusive outcome to the testing because the wife could not undertake the testing.

4. Dr D agreed in re-examination that the tests were conducted with clear not tinted glasses.  She agreed that the wife was cooperative and appeared genuine, that she needed breaks when trying to undertake the tests, that she was unable to complete them and that she reported that she felt nauseous and was looking away.  Dr D emphasised that she was not qualified to judge a person’s personality or psychology but, having seen thousands of patients, she thought that the wife was making a genuine attempt to complete the testing.

5. Dr D’s evidence during cross-examination was that she has worked as an optometrist since 2004, has tested the eyesight of thousands of people and has spoken to various professors and other professionals, yet she has never spoken to anyone or heard of anyone who can only read from coloured paper.  Relevantly, she stated that in her experience she had not heard of anyone who becomes nauseous when looking at white paper with black printing.  She stated that people may want to look away if they are sensitive to glare.

6. Dr D agreed that the wife has healthy eyes with no abnormalities and her sight is good despite moderate near sightedness.  She stated that her conclusion in her letter dated 23 May 2013 that the wife’s “visual processing skills appears to be severely delayed” was based on the wife’s behaviour and self-reported history. 

7. She also conceded that her opinion was based upon the wife’s self-reporting because all of the relevant tests depend on the reporting of the patient.

8. In re-examination, Dr D stated that if the eyes are healthy, processing can still be a problem but that a neurologist or psychologist would do testing of processing and learning difficulties and dyslexia and that she was not an expert in this area.  She agreed that there are different fields of optometry and different fields for deficits in visual processing and that she could not diagnose dyslexia because it is not her field. 

9. The evidence of Dr D did not assist me in making any findings about the claim by the wife that she suffers from Meares-Irlens Syndrome. Dr D conceded that she was an optometrist and did not specialise in the diagnosis of dyslexia.  Because her evidence relied upon the self-report of the wife, it did not assist the wife’s case.

Assessment of the husband as a witness 

1. The husband presented as a responsive and truthful witness.  He was a reliable historian and provided reasonable responses to belligerent cross-examination by the wife.  He denied sexually assaulting the wife and was ultimately not cross-examined by the wife about this allegation.

2. The husband’s evidence about the source of his financial contributions was at times unclear but the wife did not challenge or take issue with his evidence that he had made all financial contributions to the property of the marriage.

3. On balance I find that the husband was a reliable witness.

Legal Principles

1. Section 79 of the Family Law Act 1975 (Cth) (“the Act”) provides for the discretionary alteration of property interests between the parties to a marriage. Under s 79(2) of the Act, an order cannot be made unless it is just and equitable in all the circumstances.

2. The relevant factors under s 79(4) of the Act which must be taken into account in considering what order (if any) should be made are as follows:

   (a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

   (b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

   (c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and

   (d) the effect of any proposed order upon the earning capacity of either party to the marriage; and

   (e) the matters referred to in subsection 75(2) so far as they are relevant; and

   (f) any other order made under this Act affecting a party to the marriage …

   68.In Bevan & Bevan (2013) FLC 93-545 at 87,232, the Full Court of this Court considered the operation of s 79 of the Act and set out the three fundamental propositions in relation to this section which the High Court of Australia laid down in Stanford v Stanford (2012) 247 CLR 108. These are as follows:

   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.

3. In applying those principles, the parties’ legal and equitable interests in property must first be identified.  

Is it just and equitable to make an order under s 79 of the Act?

1. Before this Court can adjust property under s 79 of the Act, a determination must first be made that it is “just and equitable” to do so.[4]  This is in accordance with the judgment of the High Court in Stanford.

   [4] Family Law Act 1975 (Cth) s 79(2).

2. There was no controversy between the parties about the requirement under

   
   

   s 79(2) of the Act. Each party contended that it is just and equitable to make an alteration of property interests under s 79 of the Act because the understanding that they had as to the common use and enjoyment of the property during the marriage is at an end. The parties’ relationship has broken down, they live apart and they are now divorced. Each party applied for an adjustment of property under the Act. It is clear that both parties now seek to change the arrangement which was entered into during the marriage.

3. The parties agreed that it was just and equitable for the husband to pay the wife a lump sum in return for the transfer of her interest in the X property and the companies to him.  The amount to be paid by the husband was in dispute.

4. The parties agreed that it was just and equitable to make an alteration to the husband’s superannuation in favour of the wife, but the amount to be paid was disputed. 

The approach

1. Counsel for the husband submitted that a “global approach” was appropriate for determining the division of property of the marriage.  This was not opposed by the wife.  The parties agreed that a lump sum should be paid by the husband to the wife.  This was jointly proposed in return for the wife transferring the X property and her interest in the companies, J Pty Ltd and H Pty Ltd, to the husband.   

2. In Bolger & Headon (2014) FLC 93-575, the Full Court emphasised that

   
   

   s 79(4) of the Act requires a holistic assessment of the parties’ contributions. The Full Court referred to the authorities and the well-established recognition that s 79 requires the Court to exercise a wide discretion, and not perform a mathematical or accounting exercise. The Full Court cautioned against “over-zealous attention to the ascertainment of the parties’ contributions”.[5]

   [5] Bolger & Headon (2014) FLC 93-575 at 79,058, quoting Norbis & Norbis (1986) 161 CLR 513 at 524.

3. The approach I have taken is to consider the contributions of the parties by determining the nature, form and characteristics of all contributions across the whole of the marriage and post separation.  In Marsh & Marsh (2014) FLC

   
   

   93-576, Murphy J observed at 79,075:

   The expression “post separation contributions” has, of course, been used widely in many authorities within the context of discussions about the assessment of contributions. But, importantly, it is not the fact of separation or when contributions are made that is the delineator. It remains crucial to analyse and weigh that nature, form and characteristics of all contributions across the whole of the period under consideration.

4. It is not possible to ascribe a mathematical value with any precision to the comparable weight of the differing contributions between the parties and this would be inconsistent with the holistic approach required by s 79.

5. There are a number of factors to be taken in to account under s 75(2) of the Act when considering what, if any, order should be made under s 79. These factors are considered later in these reasons.

The parties’ legal and equitable interests in property 

1. As the hearing progressed, it became evident that the valuations of the parties’ assets and liabilities were largely agreed.  A table listing the value of the parties’ assets and liabilities was agreed upon during the trial.[6]  The value of the household contents removed by the wife at separation and the value of the husband’s credit card debt remained in dispute (and are discussed below).

   [6] Exhibit C3.

2. The parties accepted the valuation of the real property at Suburb X, dated 23 May 2014, at $1,260,000.[7]   The parties purchased that property for $1,175,000. The mortgage was $410,000 when the property was settled.  It was agreed that the mortgage on that property, which is a joint liability, was $407,000 at the time of the trial.  This property is jointly owned by the parties, although the husband made overwhelmingly greater contributions than did the wife.  The mortgage payments for the X property amount to $2,500 per month.  These have been paid by the husband and the wife has made no financial contribution to the payment of the mortgage.

   [7] Affidavit of Mr W sworn 26 May 2014.

3. It was agreed that the husband’s superannuation at the beginning of the marriage was $100,000 and that it had increased to $207,484 at the date of the trial.  It was agreed that the wife had not been in paid employment during the marriage.  Her superannuation of $30,000 at the date of the trial remained the same as at the date of the marriage as the wife had accumulated no superannuation during or after the marriage.

4. I accept the evidence of the husband where he deposed that he discovered on or about 3 February 2014 that he owned approximately 3,400 F Ltd shares, which were granted to him by his employer in 2006. This is property of the husband against which the wife seeks adjustment under the Act. The shares should not be regarded as joint property because the husband owned them prior to the marriage. I accept the evidence of the husband that he was not aware of the existence of the shares prior to February 2014 because the correspondence concerning them had been sent to his old address. He deposed that he received $9,200 from the sale of 1,000 shares on 19 February 2014. He deposed that from these funds he has paid $2,207.35 for the 2013/14 Council rates on the X property, as well as other outgoings, including rent and the mortgage over the X property. The parties agreed that the value of the husband’s remaining F Ltd shares was $396.

5. I accept the evidence of the husband that in September 2009 he established a trust with a corporate trustee for the parties with a view to acquiring investments together.  No investments were acquired.  The only asset of the trust is the bank accounts of J Pty Ltd and H Pty Ltd, which hold a current total balance of $3,450.  I accept the evidence of the husband that this balance represents payments received from consultancy work completed by him post separation in August 2011 and March 2012.  The wife has not made any contribution to those accounts.  This is represented in the table agreed by the parties as an amount of $3,450 as a joint asset because the bank accounts were originally for the benefit of the parties.  However the balance in those accounts is money earned by the husband post separation to which he alone is entitled and which I have disregarded as property of the marriage.

6. Accordingly the amounts of $3,450 and $396 referred to in the table[8] are property of the husband and have been excluded from my calculation of the net value of the property of the parties.

Findings about disputed valuations of property

[8] Exhibit C3.

Furniture and household contents

1. The value of the furniture and household contents removed by the wife after she left the former matrimonial home was in dispute.  

2. The wife deposed that in April 2011 she was assisted by a women’s refuge to remove furniture and her personal belongings and other property of the marriage from the home whilst the husband was at work.  She conceded that four people from the refuge assisted her with the removal of the furniture with a truck and that this was done without the husband’s prior knowledge.  She stated that any of the husband’s personal papers were stored in a plastic bag at the refuge and subsequently returned to his lawyers.

3. During cross-examination, the wife estimated that she removed property valued at about $2,000.  This included the washing machine, crockery, linen and a plastic tub containing her own personal papers and financial documents.  

4. The wife’s evidence was that the sofa and chairs, which were originally purchased for $1,636, were taken to an auction house and she received $200 for them.  The wife tendered Exhibit D, a bundle of receipts, which included a receipt for purchase of a sofa and chairs and household goods totalling $1,827 on 27 July 2009.  

5. These receipts also include receipts for the rental of furniture and household goods between December 2009 and May 2011, of which a seven piece outdoor setting appears to have been returned.  She stated that a truck returned the parties’ rental furniture to L Interiors, but that she was not present.  The evidence about rental furniture was not challenged by the husband and there was no other clear evidence before me about which items of furniture were rented.

6. The wife denied any knowledge of a couch which the husband claimed was valued at $5,000.  The husband asserted that a watch given to him by his father was missing from the house after the wife had removed items.  The wife denied any knowledge of the watch.

7. I accept the evidence of the husband that the wife never told him what happened to the property that she removed from the house and that he first heard that the wife had sold some of that property on the first day of the trial.

8. The husband’s evidence was that the wife removed furniture and contents with an estimated value of $10,000.  He has not provided any evidence of the value of the items removed.  Nonetheless, I accept his evidence that he established a joint bank account in July 2009 when the parties moved into rental accommodation in Suburb R and that he contributed $50,000 to this account.  I accept his evidence that the wife made no contribution to that account when it was opened or at any time during the marriage.  I accept the husband’s evidence that those funds were used to furnish the R property, including the purchase of a Miele washing machine, a new lounge suite, dinner set and other items.[9]  He continues to rent the R property and it was agreed that he retain the household contents.

   [9] Affidavit of the husband sworn 3 December 2013 at [12].

9. Obviously, it is to the wife’s benefit for the items she removed from the house to be assessed as being worth less than the husband asserts.  While I have accepted that $50,000 was spent on furnishing the marital home as per the husband’s claims, the husband has failed to provide any evidence to support his argument in relation to the current value of those items.  The husband made no mention of rental furniture and yet the wife’s evidence about this was not contradicted.  Thus, doing the best I can on the state of the evidence (and noting its deficiencies), I attribute a value of $2,000 to the household contents removed by the wife.  In doing so I have taken into account that the value of the property would have depreciated, given that it was used and purchased two years previously.

Credit cards

1. The wife also disputed the value of $30,000 attributed by the husband to his credit card debts.  The wife accepted a value of $27,500 which was the amount noted in the husband’s financial statement sworn 3 December 2013.  However, the husband, with leave, filed a late financial statement which included a credit card liability of $30,000.  Given my assessment of the evidence of each of the parties, I prefer the husband’s evidence of the value of his credit card debts of $30,000 and I accept his financial statement.

Valuation of property and liabilities

1. I am satisfied of the following valuations of property and liabilities:

   Non-Superannuation Assets:

P Street, Suburb X, registered in joint names	$1,260,000
Husband’s savings	$8,864
Husband’s Subaru motor vehicle	$28,000
Husband’s shares in F Ltd	$396
Husband’s household contents at Suburb R rental agreed between the parties	$1,600
Interest in J Pty Ltd and H Pty Ltd trusts (funds held in joint bank accounts)	$3,450
Household contents removed by the wife at separation	$2,000

Superannuation:

Husband’s superannuation	$207,484
Wife’s superannuation	$30,000
Total superannuation	$237,484

Liabilities:

Mortgage secured over the X property in joint names	$407,000
Home Renovation line of credit (drawn down) in joint names	$15,000
Husband’s personal loan from Ms G	$53,000
Wife’s credit card debts	$20,000
Husband’s credit card debts	$30,000
Wife’s unpaid legal fees	$8,699
Husband’s unpaid legal fees	$25,087

1. I accept the evidence of the husband that he purchased a new Subaru motor vehicle for the wife in December 2009 at a cost of $27,500, which she retained at separation.  The value of the husband’s car, which is a 2009 Subaru, has been agreed by the parties at $28,000. 

2. The evidence of the wife was that she sold her vehicle for $15,000 and used this money for living expenses.  However, she agreed at trial with the valuation of $27,500.  I have dealt with this in my consideration of contributions.  

3. At separation each party had the benefit of a motor vehicle of about the same value.  Each retained their own vehicle.

4. In these circumstances it is appropriate to exclude the value of the husband’s motor vehicle from the determination of the joint assets of the parties.  It is appropriate that the husband retain his motor vehicle to the exclusion of the wife. 

5. The table[10] agreed upon by the parties included each party’s unpaid legal fees. The wife’s unpaid legal fees of $8,699 include $5,300 owing to her former solicitors.  These solicitors have lodged a caveat on the X property to secure their costs.

   [10] Exhibit C3.

6. It is inappropriate to include the parties’ legal fees as joint liabilities when determining the net value of the property of the marriage as it would result in each party bearing a portion of the other’s unpaid legal fees.[11] Thus I have excluded the legal fees from the calculation of the net value of the non-superannuation property of the marriage (which is detailed below).

   [11] Daines & Daines [2014] FamCAFC 61 at [21] - [25].

7. The husband submitted that the sum of $50,000 contributed by him to C Pty Ltd, a company established during the marriage in August 2009 with the wife as sole director, should be considered a loan and should be repaid to him by the wife.  There is no evidence that any of that sum remains and accordingly this is a matter for adjustment rather than being identified as existing property of the marriage.  The sum of $50,000 was a contribution made by the husband during the marriage for the benefit of the wife.

8. The husband’s liability for his personal loan of $53,000 from Ms G, his ex-wife, is a matter for adjustment and is not a joint liability.  The husband deposed that he had obtained an initial loan of $20,000 pursuant to a loan agreement dated 6 November 2013 and later obtained a further loan of $40,000 pursuant to a loan agreement dated 8 January 2014.[12]

   [12] Affidavit of the husband sworn 3 March 2014 at [7].

9. The husband deposed that he obtained the second loan to pay for renovations to the X property, which were necessary in order to lease the property.  He deposed that in total he spent $18,220[13] of the loan from Ms G on the renovations to the X property post separation.  He deposed that he used the remainder of the loan after the renovations were completed to pay the mortgage and outgoings for the X property and for his rent, living expenses and legal fees,[14] the last of which I have already excluded from the valuation of the husband’s liability for unpaid legal fees (above at [93]).  The husband provided no evidence specifically identifying what portion of the loan was applied towards the mortgage and outgoings on the X property.  In light of this, I have treated the amount of $18,220 and the mortgage payments and outgoings for the X property as financial contributions made by the husband.  There was no dispute that the husband had continued to pay the mortgage payments and outgoings for the X property.  The wife did not challenge the husband’s liability for the loans from Ms G.

   [13] Ibid.

   [14] Ibid at [11].

10. I have excluded both parties’ credit card debts from the analysis of the joint liabilities as there is no evidence that they were incurred during the marriage. These debts are matters more appropriate for consideration under s 75(2) of the Act.

11. The husband proposed that each party retain to the exclusion of the other all furniture, chattels and other belongings in their possession with the exception of the plastic box of personal documents including photographs taken by the wife from the home at the time of separation and the husband’s documents including his degrees and M Certificate.  The husband also sought the return of his father’s watch, as already discussed above.

12. In her outline of case, the wife proposed that each party:

    … be entitled to be the sole legal and beneficial owners of all items of property in the possession or control each of them respectively including but not limited to money, motor vehicles, insurances, equities, furniture and chattels and or personal effects.

13. The value of the household contents removed by the wife at separation is $2,000 and the value of the husband’s household contents at the R rental property was agreed at $1,600.[15]  The $400 difference is a matter to take into account in favour of the husband for any adjustment of property.

    [15] Exhibit C3.

14. Noting that the parties agreed that each should retain the property in their possession, it is appropriate to order that the husband retain his motor vehicle to the exclusion of the wife and that the husband and wife otherwise retain to the exclusion of the other all furniture, chattels and other belongings in their possession, save that the wife return to the husband, should she locate it, the plastic box of personal documents and his father’s watch.

Total net value of property of the parties

1. I am satisfied that the total net value of the parties’ non-superannuation property of the marriage is comprised only of the equity in the X property, which is $838,000, noting my findings above.  This is $1,260,000 less the mortgage of $407,000 and $15,000 for the home renovation line of credit.  The parties agreed that the husband is to continue to take responsibility for the mortgage and the repayment of the line of credit.  Accordingly there is a total net value of $838,000 for alteration between the parties.

2. The amount of $3,450 in the bank accounts for J Pty Ltd and H Pty Ltd, being the payments received by the husband post separation for consultancy work, is to be retained by the husband.

3. The superannuation funds of the parties total $237,484.

Full and frank disclosure

1. Throughout the proceedings both parties alleged that the other party had failed to fulfil their duty to make full and frank disclosure. Rule 13.01 of the Family Law Rules 2004 (Cth) provides that “each party to a case has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the case, in a timely manner”. Rule 13.04 provides as follows:

   (1) A party to a financial case must make full and frank disclosure of the party’s financial circumstances, including:

   (a) the party’s earnings, including income that is paid or assigned to another party, person or legal entity;

   (b) any vested or contingent interest in property;

   (c) any vested or contingent interest in property owned by a legal entity that is fully or partially owned or controlled by a party;

   (d) any income earned by a legal entity fully or partially owned or controlled by a party, including income that is paid or assigned to any other party, person or legal entity;

   (e) the party’s other financial resources;

   (f) any trust:

   (i)     of which the party is the appointor or trustee;

   (ii)    of which the party, the party’s child, spouse or de facto spouse is an eligible beneficiary as to capital or income;

   (iii)   of which a corporation is an eligible beneficiary as to capital or income if the party, or the party’s child, spouse or de facto spouse is a shareholder or director of the corporation;

   (iv)    over which the party has any direct or indirect power or control;

   (v)     of which the party has the direct or indirect power to remove or appoint a trustee;

   (vi)    of which the party has the power (whether subject to the concurrence of another person or not) to amend the terms;

   (vii) of which the party has the power to disapprove a proposed amendment of the terms or the appointment or removal of a trustee; or

   (viii) over which a corporation has a power mentioned in any of subparagraphs (iv) to (vii), if the party, the party’s child, spouse or de facto spouse is a director or shareholder of the corporation;

   (g) any disposal of property (whether by sale, transfer, assignment or gift) made by the party, a legal entity mentioned in paragraph (c), a corporation or a trust mentioned in paragraph (f) that may affect, defeat or deplete a claim:

   (i)     in the 12 months immediately before the separation of the parties; or

   (ii)    since the final separation of the parties; and

   (h)     liabilities and contingent liabilities.

   (2) Paragraph (1) (g) does not apply to a disposal of property made with the consent or knowledge of the other party or in the ordinary course of business.

2. There is insufficient evidence to substantiate any claim that there has been a breach of duty to provide full and frank disclosure on the part of the husband.  His disclosure about his employment was made just before the trial because he was not working until March 2014.

3. The husband conceded that there was late disclosure to the wife of his F Ltd shares which he discovered and sold in February 2014 to pay legal fees, the mortgage and outgoings on the X property as well as his own living expenses and rent.[16] However I accept the husband’s explanation that these shares were granted to him by his employer in 2006, well before the marriage, and the information was sent to his previous address. 

   [16] Affidavit of the husband sworn 3 March 2014 at [11].

4. The husband complained that the wife had never provided him with any bank statements for C Pty Ltd and that he was therefore precluded from conducting a reconciliation of the records of the company to ascertain where the proceeds of the loan were spent.  In cross-examination, the husband conceded that, as a result of the litigation, the wife had provided his instructing solicitors with Exhibit E, an unsigned taxation return for the financial year ending June 2010.  Nonetheless, the husband’s evidence was that he found this to be of no assistance without any bank records.

5. The wife explained her failure to produce any bank records for C Pty Ltd by stating that her application to the bank for the records was still being processed.  She produced to the Court a photocopy of a document which she asserted was an application completed by one of the staff at the bank on her behalf for the company’s records with the Commonwealth Bank.  Counsel for the husband tendered this document (Exhibit 5), which was handwritten and dated 4 November 2013, emphasising that it contained no reference to the account number for the company and therefore was not a genuine attempt to produce the bank records.  The document sought statements for C Pty Ltd from 14 September 2009 until 21 October 2011.  Although not referred to in Court, I note that the same photocopied document appears as Annexure JMR-22 of the wife’s affidavit sworn 4 December 2013, which provides an account number.  There is no explanation for the discrepancy between these documents. 

6. I accept the criticisms of the husband that there were no bank statements from the company C Pty Ltd provided by the wife. 

Section 79(4) contributions

1. I am satisfied that the husband has made all of the financial contributions to the property of the marriage.  This was conceded by the wife, who also conceded that she made no financial contribution to the parties’ joint bank account or the bank accounts of J Pty Ltd and H Pty Ltd.

2. I find that at the commencement of the parties’ relationship, the husband was working as a financial professional for Q Partners and was earning approximately $200,000 per annum.  The husband owned the Z property, valued at approximately $900,000, with a mortgage secured over the property of approximately $525,000.  He had savings of around $20,000, shares valued at approximately $50,000 and superannuation of approximately $100,000.  The husband also had a fixed interest equity share in Q Partners, however upon his resignation from Q Partners and move to V Company in June 2008, he was required to sell his equity back to Q Partners at the prevailing valuation of approximately $1,200,000. 

3. At the outset of the parties’ relationship, the wife was working as a contractor with T Company earning approximately $80,000 per annum.  The husband’s evidence was that the wife’s contract was not renewed and she did not work in paid employment from September 2008.[17]  The wife’s evidence was that she was asked to leave T Company after working there for four months in 2008.  While there were slight differences in the details provided by the parties, there was agreement that the wife ceased working in September 2008 and did not work again during the course of the relationship.

   [17] Affidavit of the husband sworn 3 December 2013 at [8].

4. There is no dispute about the fact that at the commencement of the marriage, the wife was unemployed, had no assets or savings and had approximately $52,000 in debts, including credit cards.  It is also agreed that, during the course of the marriage, the wife was not employed but took on the role of homemaker and that the husband worked full-time.

5. I accept the uncontested evidence of the husband about various sums of money he paid to the wife prior to and during the marriage.  These are direct financial contributions made by the husband.  Specifically, these are the amounts noted in annexure AJM-6 of the husband’s trial affidavit, including $52,000 paid from the husband’s savings on or around 23 October 2008 to extinguish the wife’s existing debts, as well as a further $10,000 paid by the husband in January 2009 to cover the wife’s expenses, some of which involved their wedding but most of which were her own personal expenses.  It should be noted that, while the wife agreed that the husband provided these sums to her, her evidence was that she was required to spend the sum as directed by the husband.  The claim that the husband subjected the wife to financial control forms part of the rubric of her family violence allegations and will be considered later in these reasons. 

6. In July 2010 the husband paid $39,000 to the wife for her credit card debt.

7. The wife did not challenge the husband’s evidence that he paid $24,000 to a builder to construct a new staircase in the Z property because she told him she could not use the existing staircase.  I accept the evidence of the husband that he paid $24,000 to modify the staircase whilst the parties were on their honeymoon overseas.  Although the parties never actually lived in this property because, according to evidence given by the wife, the staircase was too steep and thus “completely unsuitable”.  This was an improvement to the asset of the husband which constitutes a financial contribution.

1. I accept the uncontested evidence of the husband that when the parties returned from their honeymoon, they hosted a dinner at his house in Suburb Z.  He deposed that they had a disagreement, the wife left and from April to June 2009 the parties did not have any face-to-face contact.  He deposed that they resumed their relationship in about July 2009 and commenced living together in a rented house in Suburb R.  This separation period is relevant to the period of time that the wife made a non-financial contribution as homemaker.

2. I accept the uncontested evidence of the husband that in July 2009, when the marriage resumed, the husband paid the bond and all rent on the R property where the parties lived.  I also accept his evidence that he established a joint bank account and deposited $50,000 of his savings into the account.  His further evidence that the wife made no contribution to the account when it was opened or during the marriage was not challenged by the wife.

3. I accept the uncontested evidence of the husband that in July 2010, during the marriage, the wife also removed $5,000 from this joint savings account for her personal expenditure.  According to the husband’s trial affidavit, this incident involved the husband returning home to find a note saying, “I am stressed. I need a break”, $5,000 had been removed from their joint account and the wife then remained away for three weeks.[18]

   [18] Affidavit of the husband sworn 3 December 2013 at [16].

4. I accept the uncontested evidence of the husband that the funds in the joint account were used to furnish the R rental property which included the purchase of a Miele washing machine, a new lounge suite, dinner set and other items.

5. I am satisfied that during the marriage, the husband provided the wife with $50,000 to establish the company C Pty Ltd and that the wife had control over those funds.  The company never conducted any business and did not produce any income.  The wife has provided an explanation for $28,817 of those funds but failed to provide any explanation for the balance, being the sum of $21,183.  The parties agreed that this amount had been spent by the wife and there is no evidence that any of the $50,000 remains.  Both parties agreed that the company now has no value and is inactive. 

6. The wife’s evidence was that before the marriage, she project managed a renovation of the Z property and met the builder, Mr U, at the property with different tradesmen every day because the husband was at work.  The wife deposed to conducting negotiations with builders and drawing the plans, as well as attending to the fittings and appliances in accordance with the husband’s instructions.  She suggested that the instructions changed as the husband was uncertain whether the house was to be sold or rented.  She stated that:

   [He] kept moving the goalposts – it was to be rented, it was to be sold, we would live in it, etc.  I couldn’t live in it because it is a double story house and I can’t live in double story houses.

7. I am not satisfied that the wife project managed the renovations at the Z property and I accept the evidence of the husband that he had engaged the builder, who sourced the fittings and appliances, and that the renovation was minor, involving no demolition work.  I accept his evidence that although the wife met with a cabinet maker, no cabinets were made.  I accept the evidence of the husband that the renovation to the kitchen involved no structural change, one row of new tiles and no changes to cabinets. I found the evidence of the husband more persuasive having regard to the details he provided.

8. I accept the evidence of the husband that there was no design plan made by the wife and that the total cost of labour and appliances was $10,000.  The wife agreed that the husband engaged the agent and lawyers to sell the property.

9. It was the wife’s case that when the parties became engaged, the husband told her that 50 per cent of the Z property was hers and that 50 per cent of the sale proceeds of the Z property belonged to her as compensation for managing the renovations at the property, preparing the property for sale and for agreeing not to undertake paid employment.  She also suggested that she did some labour as part of that process.  For example, the wife deposed that when they purchased the X property it was “filled with hard rubbish … shoulder high in some parts” and that she had personally cleared the property.

10. The husband totally denied that he had ever entered into an agreement with the wife that she share in 50 per cent of the property at Suburb Z and denied that the proceeds of the sale of the Z property were placed into a joint account.  He explained that the property in Suburb X was registered in the joint names of the parties because of the marriage and because of the right of survivorship.   He denied that this reflected the agreement claimed by the wife. 

11. It would be extraordinarily generous to the point of peculiarity for a person to tell their partner that they were entitled to half of a property worth almost a million dollars when they had made absolutely no contribution to the purchase of that property.  Without evidence beyond what one party allegedly told the other, I cannot but conclude on the balance of probabilities that there was no such agreement between the parties.  Furthermore, I accept the husband’s explanation as to why he registered the X property in their joint names as people do not tend to marry in expectation that they will divorce, let alone within 20 months.  The husband expected the marriage to continue and wanted his wife, in the event of his death, to be entitled to the property.

12. The Z property was sold in August 2010 and $275,000 from the proceeds of sale were used to purchase the X property.

13. There was no disagreement between the parties that apart from the mortgage, the balance of the purchase price for the X property was paid by the husband.

14. I find that the X property was purchased for $1,175,000 “plus costs and duties”.  The mortgage from Bendigo Bank was $410,000.  The parties agreed that the balance of $490,000 was provided by the husband and that this was comprised of money from the sale of the Z property and his equity in Q Partners.[19]  

    [19] Affidavit of the husband sworn 3 December 2013 at [10] and [17].

15. The husband conceded that, during the house hunt that would eventually result in the purchase of the X property, the wife spoke independently to real estate agents about properties.  However, he rejected totally the proposition that he instructed the wife to do this on his behalf.  It was his evidence that they searched for properties together.  He stated that of the properties they inspected, some were properties that the wife had found and some were properties that he had found.  He rejected the proposition that the wife had found the property at Suburb X, stating instead that it was he who ultimately found the property. 

16. The husband conceded that the wife sent him an email dated 16 March 2011 with proposals about how to proceed with the renovation at the X property.[20]  This email is an extensive wish list for the renovation of the X property which never proceeded. 

    [20] Exhibit I.

17. I reject the wife’s claim that she made a non-financial contribution to the purchase and maintenance of the X property.  I do not accept her proposition that Exhibit I (being the email referred to in the previous paragraph) is evidence of her having made any significant contribution to the renovation of the X property.  I find that the parties inspected the property and purchased it together with the husband’s funds.

18. The renovation of the X property could not proceed post separation because the wife did not respond to requests from the husband’s solicitors for her to authorise the release of funds available from the line of credit so that the house could be made liveable and to satisfy the requirement of the insurance policy that the property be occupied from time to time.  The husband’s offer to complete the renovation was made on the basis that the husband would be completely responsible for the line of credit and all other payments for the property.[21]  The wife’s lack of cooperation resulted in the property remaining untenanted until she conceded that the husband should have sole occupancy of the property and provided him with her keys in accordance with the interim orders made in December 2013.

    [21] Affidavit of the husband sworn 3 December 2013 at Annexure AJM-7.

19. The wife conceded that she had the benefit of the X property from separation until December 2013 when she agreed to relinquish the keys of the house to the husband.  However, the wife gave evidence that she did not enjoy the use of the property because she was afraid of the husband.  She stated in evidence that she attended the property on only one occasion between April and December 2013 because she understood that the husband had a key and she stayed away because of him. 

20. In the proceedings before me in December 2013, the wife stated that she did not want responsibility for the property and was concerned that the husband make all payments regarding the property and that he accept responsibility for its maintenance.  By agreement the wife relinquished her keys to the property to the husband.

Post separation contributions

1. The wife conceded that from the date of separation in February 2011, she withdrew funds from the parties’ joint account.  She also received money from casual unskilled work as well as payments from Centrelink.  I accept the husband’s evidence that he only provided funds in the joint account for the wife’s use until February 2012, although he continued to pay for the maintenance of her car as well as her health insurance until October 2013.

2. The wife conceded that she had accessed just under $50,000 from the joint account after she left the husband in February 2011 and that throughout 2011 the husband continued to contribute his salary to the joint account, to which she had access.  This concession was made in the context of the husband having produced bank statements of withdrawals made by the wife.[22]  The wife gave evidence in cross-examination that the money was spent on payment of her credit card debts and living expenses.

   [22] Affidavit of the husband sworn 3 December 2013 at Annexure AJM-4.

3. The husband’s evidence was that he attempted to contact the wife after she left the home in February 2011 but that she would not reply.  The wife conceded that she did not respond to or communicate with the husband after leaving the former matrimonial home.  She conceded that she effectively disappeared and he did not know where she was.

4. In spite of these concessions, the wife’s evidence was that it was not until the joint bank account was “frozen” on 5 April 2011, when she attempted to unilaterally withdraw $15,000 from the joint account, that she “knew then that the marriage was over” and decided to remove her belongings and property from the matrimonial home with the assistance of the women’s refuge.  The husband deposed that the wife attempted to withdraw $17,000.[23] As the husband had no idea where the wife was from the time she left the matrimonial home and she refused communication with him, I accept the husband’s case that the parties separated on a final basis when the wife left on 9 February 2011.

   [23] Ibid at [24].

5. Annexed to the husband’s trial affidavit is an email he sent on 6 April 2011, notifying the Bendigo Bank that the wife should have free access to the joint account into which his salary was still being paid, but confirming that he had placed a stop on the line of credit of $220,000, which had been set aside for the purposes of renovations to the X property.

6. I find that in making those post separation payments, the husband continued to support the wife financially for 12 months after separation.  There is no evidence that the wife made any financial contribution to the joint account after separation.  

7. The only evidence that the wife made any non-financial contribution to the property of the marriage post separation is her evidence that she did some gardening and removed some rubbish from the X property on one occasion.

8. I accept the evidence of the husband that since obtaining access to the X property, he has cleaned the property, cleared the weeds in the front and back gardens, maintained the garden and undertaken renovations to the bathroom and kitchen.  Renovations to the kitchen included the installation of new bench tops and cupboards, a new sink, oven, cooktop and range hood, re-tiling the floors and painting the kitchen.  Renovations to the bathroom included installation of a new shower screen and vanity and re-tiling and plastering.  As already discussed above, the husband borrowed $18,220 from his ex-wife to pay for the renovations because the wife refused to cooperate in order to access the funds jointly from the line of credit which had been approved by the bank.

9. The husband’s work on the property is a non-financial contribution by him which was necessary to let the property from 28 February 2014 on a 12 month lease.  The husband anticipated receiving approximately $525 per week from the property after paying agent’s commissions and expenses.[24]  The husband has had the benefit of this income since 28 February 2014 and the wife has never received any income from the property.  This income is being used to pay the mortgage.  The mortgage was $410,000 in December 2010 and has now been reduced to $407,000 by the contributions of the husband.

   [24] Affidavit of the husband sworn 3 March 2014 at [8].

10. The financial and non-financial contributions by the husband to the improvement of the X property in 2014 have been for the benefit of both the parties as he is receiving the rental income, which has been paid towards the mortgage.  The husband has enjoyed the rights of sole use and occupation of that property, with the agreement of the wife, since December 2013.

11. The valuation of the X property, accepted by both parties, was completed on 23 May 2014 and therefore included the recent renovation.  There was no evidence or submissions made about how the value of the property was affected by the renovation.  I have assumed that the renovation costs of $18,220 added to the value of the property.  An adjustment in favour of the husband must be made for his financial and non-financial contributions to improving the property. 

12. The amounts of $18,220 for the renovation and $3,000 for the reduction of the principal on the mortgage must be taken into account as financial contributions made by the husband post separation.  An adjustment in favour of the husband of $21,220 for these contributions combined must be made in determining the value of the property to be altered between the parties.

13. Post separation, the husband has continued to pay the mortgage payments on the real property.  The wife conceded that she has not made any financial contribution to that mortgage.

Conclusions about the contributions of the parties 

1. Because this was a short marriage of about 20 months, the financial contributions of each party assume greater significance particularly where any non-financial contributions are minimal.[25]

   [25] G and G [2006] FamCA 877.

2. Counsel for the husband referred to a number of outcomes for property settlements in cases where short marriages had been considered.  He submitted that the final distributions in many cases were similar to the initial financial contributions to the marriage unless there was something significant such as a child or a major contribution made during the marriage.  In particular he referred to G & G [2006] FamCA 877, Coghlan & Coghlan (2005) FLC 93-220, Brandow & Brandow [2010] FMCAfam 1026.

3. I have considered a range of cases involving short marriages but have not found any similar factual circumstances. No two cases are ever the same and s 79(4) of the Act provides for a wide discretion in exercising this jurisdiction.

4. I am satisfied that the husband’s initial financial contributions were significant and have not been eroded by any financial contribution by the wife or the duration of the marriage which was short.

5. The wife has made no financial contributions but a non-financial contribution as a homemaker and by doing some minor gardening and removal of rubbish at the X property on one occasion post separation.

6. The husband worked full-time and contributed his income to the support of the wife throughout the marriage.  The wife at no stage engaged in paid employment and made no financial contribution. 

7. The wife’s non-financial contribution of working in the home as a homemaker assisted the husband whilst he worked and I am satisfied that the wife also assisted the husband by communicating at times with tradesmen at the Z property on his behalf.  However, I do not accept the evidence of the wife that she made a significant contribution to the renovation of the Z property.

8. I reject the wife’s case that there was any agreement that she share 50 per cent of the sale of the Z property in return for managing the renovation. Exhibit I, produced by the wife, was a copy of a letter written by the wife to the husband dated 16 March 2011. This refers to the efforts of the husband and the builder in the renovation of the Z property and corroborates the evidence of the husband that the wife was not involved in that renovation.

9. The husband’s contribution of the $50,000 to the wife for the purpose of establishing a business must be regarded as a financial contribution made by him which has been expended and no longer exists.  It does not form part of the property of the marriage.  Ultimately, it is a factor to be considered in favour of the husband.  The husband’s contribution of $50,000 to the wife for C Pty Ltd is also relevant because the husband’s conduct contradicts the wife’s assertions that she was controlled financially by the husband.

10. The wife asserted that the husband caused a “negative contribution” by suffering gambling losses and making risky investments during the marriage.[26] The husband denied that he had a gambling problem and there was no evidence to support the wife’s claim about these matters.  In this context, I cannot accept the wife’s contention that the husband suffered gambling losses during the marriage. Furthermore, the term “negative contribution” is not an apt description.[27]  Such matters would have to be considered in the light of the general assessment of contributions if they were relevant.

    [26] Affidavit of the wife sworn 4 December 2013 at [383] - [394].

    [27] See Antmann v Antmann (1980) FLC 90-908 at 75,744; Kennon v Kennon (1997) FLC 92-757; Spiteri v Spiteri (2005) FLC 93-214.

11. The wife withdrew just under $50,000 from the joint bank account after she left the husband in February 2011 and throughout 2011 she had access to funds in this account, into which the husband’s salary continued to be paid.  The husband continued to pay the wife’s health and car insurance.

12. Since obtaining the keys to the property from the wife, the husband has made a non-financial contribution in renovating the X property and securing a tenant.

13. I am satisfied that the X property is valued at $1,260,000.  Deducting the liabilities to be assumed by the husband, namely the mortgage of $407,000 and the line of credit of $15,000, there remains equity of $838,000 in the property.  The husband’s post separation financial contribution of $21,220 comprising $18,220 for the renovation and $3,000 in mortgage payments must be deducted from this equity leaving $816,780. 

Allegations of family violence

1. The wife emphasised throughout the trial that she was the victim of the husband’s violent behaviour during the marriage and that he subjected her to financial control.  She referred to physical and verbal abuse.  She deposed that the husband was economically controlling during the early relationship, the marriage and following separation.  The wife frequently referred to this behaviour generally as “family violence” and repeatedly used those words as a mantra.  There was no independent or objective evidence to corroborate any of these allegations.  

1. The wife claimed that her disability affects her ability to earn an income.  After separation the wife could not find permanent full-time employment and was in receipt of Newstart allowance from Centrelink.  In cross-examination she agreed that between 2011 and mid-2013, she was in receipt of Newstart allowance, payments for casual unskilled work and money which she withdrew from the joint bank account of the parties.  She qualified for a Disability Support Pension in June 2013.

2. Exhibit 4 tendered by the husband was a printout of the wife’s LinkedIn profile dated 17 May 2012, which she conceded was correct.  The profile described the wife as a corporate lawyer and indicated that she had worked at law firms in New South Wales in 2001 and 2003.

3. During cross-examination, counsel for the husband suggested that the website indicated that the wife worked at a government agency as a corporate lawyer and she responded: “No, I was a graduate non-lawyer at [the agency].” 

4. When asked whether the wife had worked at a bank for seven months between May and November 2006, the wife stated: “Yes, between Melbourne and Perth about 2006 for six months.  I worked in compliance.”

5. Further regarding employment, the wife stated that she unsuccessfully applied for jobs to match her qualifications in 2013, such as “government jobs with [the Department of Human Services], Department of Primary Industries, Disabilities Office and about 10 government departments in Victoria.”  She stated that the last time she had worked as a lawyer was in 2003 and that “in private industry, a law firm would not take me.”

6. The wife deposed that she had been diagnosed with Meares-Irlen Syndrome and deposed to having “dyslexia from birth”.  In support of her diagnosis, she relied upon the affidavit from optometrists Ms N and Dr D, discussed above.  The wife deposed that this disability prevents her from working and qualifies her to receive a Disability Support Pension.  The husband accepted that the wife suffered from dyslexia but he did not accept that the wife was as seriously affected as she alleged.

7. In closing submissions, counsel for the husband reminded the Court that prior to the marriage, the wife worked in paid employment for several years, including as a qualified lawyer.  He submitted that the wife has now alleged that she has a number of health issues; however, there is no concrete proof of any of these issues.  Further, he argued that during the trial, the wife demonstrated her capacity to cross-examine, make submissions, decipher information and ask questions.

8. The husband’s counsel argued that the wife has clearly demonstrated her ability to operate several bank accounts, to conduct numerous financial transactions and she set up her own business whereby she rented premises and advertised for the business.  He emphasised that the wife had the ability to deal with financial documents and contracts throughout the marriage and that she worked post separation.  He argued that the wife does have the capacity to earn income having worked for a government agency, a bank and a law firm in Sydney before the marriage and there is no evidence as to why she cannot work.

9. I accept the evidence of the wife that she became eligible for the Disability Support Pension in June 2013.  However there is no independent evidence from suitably qualified experts of the reasons why the wife has become eligible for that pension, for how long any disability will continue or what, if any, treatment is available to improve her position.  I have no reliable evidence from the wife about her alleged disabilities.  

10. The wife conceded that a number of items listed in her financial statement, filed on 18 February 2014, as expenses paid by others for her benefit were incorrect.  I accept the wife’s evidence of her financial circumstances in the following terms: 

    ·An average weekly income of $129. 

    ·A weekly pension payment of $375. 

    ·The wife has no other income. 

    ·I accept that the wife has a weekly expenditure of $281 which comprises $106 for minimum credit card payments and rent of $175.

    ·A reasonable sum for her weekly personal expenditure referred to in Part N of her financial statement is $460, which includes an amount of approximately $50 per week for public transport.

11. The wife has an undisputed liability of $20,000 with the Commonwealth Bank for her credit cards.

12. The husband is 53 years of age.  He was unemployed for a period of one year after being made redundant by his employer V Company on 31 March 2013.  He has been employed full-time as a financial professional since 11 March 2014.  The husband receives a salary package of $154,875 per annum.  As part of his terms of employment with the new entity, he has been given an equity share in the business of four per cent.  He has deposed that the business is a start-up and has no value.  He has the prospect of further payments if the business is successful. I accept that the equity in the business has no value at present.  After tax, his weekly income is approximately $2,429.

13. The husband receives weekly rental income from the X property of $525 since 28 February 2014.  This is used towards the mortgage payments of $2,500 per month.  His weekly personal expenditure including income tax, payment of rent, the mortgage on the X property, repayment of the home renovation bank loan, repayment of the personal loan to his ex-wife and credit card repayments amount to $3,512.

14. His credit card debt is estimated at $30,000.  The outstanding amount of the loan from his ex-wife has been agreed at $53,000. He is repaying $15,000 to the bank for the home renovation loan incurred in joint names.  The mortgage he is repaying on the X property is currently $407,000.  He has outstanding legal fees of $25,087.  His total liabilities are $530,087.

15. I take into consideration that the husband has had the benefit of the proceeds of  sale of his F Ltd shares but that part of the proceeds have benefited the wife.  He deposed that in February 2014 he discovered that he owned approximately 3,400 F Ltd shares which were granted to him by his employer in about 2006.  He deposed that he was not aware of the existence of the shares as all correspondence was being sent to his old address in Suburb Z.  He deposed to having sold 1,000 of the shares on 19 February 2014 for $9,200.  I accept that he has used those funds to pay the 2013/14 council rates on the X property, at a cost of $2,207 together with other outgoings including rent and the mortgage over the X property.

16. I take into consideration that, as at the date of trial, there was a significant discrepancy between the unpaid legal fees of the parties.  The husband’s unpaid legal fees at the date of trial were $25,087 and the wife’s unpaid legal fees were $8,699.  The husband has savings since separation of $8,864 and the wife has no savings.

17. In cross-examination the wife suggested that the husband had other sources of income.  I accept the evidence of the husband that he started working as a financial professional for O Partners on 17 March 2014.  The husband gave evidence that O Partners earns fees by managing funds for superannuation companies and investing them in the share market.  O Holdings is the holding company for O Partners and O Partners have equity allocation with O Holdings.  The husband’s evidence about the circumstances of his employment was not clear. Nonetheless, as there was no evidence to contradict the husband about his employment, I accept his evidence that: “At the moment we manage no money and no funds. The success of the company is not assured. Nothing is assured.”  I also accept the husband’s financial statement which is consistent with this evidence. 

18. The evidence of the husband was that GG Pty Ltd is a trust, which he set up in March 2014.  He stated that he paid $2,996 including accounting fees to set it up under a master trust agreement.  The husband conceded that he is the director of that trust company, purchased to have equity with his new employer.  It was his evidence that he had equity based on the value of the company and what the directors decide to distribute.

19. Exhibit F was the husband’s share certificate for GG Pty Ltd of 4,000 fully paid ordinary shares in O Holdings.  The husband stated that there is no value in the trust but conceded that if the company is successful he has an expectation of receiving a distribution as part of his remuneration.

20. Neither party is responsible for the support of any other person.

21. Under s 75(2)(g) of the Act, I have taken into account a standard of living that in all the circumstances is reasonable. There were submissions made and no evidence about this factor.

22. There was no evidence about any benefit to the wife of undertaking any course of education or training which might increase her earning capacity. 

23. I accept the evidence of both parties about their current financial circumstances based on the financial statements filed.

Dr B

1. The wife relied upon the affidavit of psychologist Dr B as to her anxiety.[59]  This evidence was unchallenged as the husband did not seek to cross-examine Dr B.

   [59] Affidavit of Dr B filed 21 November 2013.

2. Dr B met the wife on 23 July 2013 post separation and the wife attended for six sessions.  The opinion of the psychologist was that the wife suffers moderate to high levels of anxiety and post-traumatic stress disorder symptoms with panic symptoms presenting when she is under pressure or discussing the specific incidents that occurred within her marriage.  The doctor described the anxiety as particularly related to ensuring that she is not disadvantaged by her dyslexia-related limitations as well as the potentially threatening behaviour of her husband.

3. The wife told Dr B that she was pursuing a further assessment for visual and learning disabilities on the extreme end of the dyslexia spectrum.  No assessment was provided to the Court other than the untested evidence of Ms N.

4. The evidence of Dr B does not allow me to make any clear finding about the future needs of the wife.  The evidence cannot be relied upon in support of the serious allegations made by the wife against the husband as the reference to the husband’s “potentially threatening behaviour” is based on the self-report of the wife.  In addition the diagnosis by Dr B is based upon the history provided by the wife, which has been impeached in my findings.

Conclusions about the relevant s 75(2) factors

1. On the basis of Dr B’s evidence, I am satisfied on balance of probabilities that the wife suffers from moderate to high levels of anxiety.

2. Hopefully there will be some relief from the anxiety when this case is resolved, having regard to the evidence of Dr B.   

3. The wife stated that she is unable to work other than to undertake minor unskilled work.  She stated there is “no funding to give me an aide to work.”  She stated that her “disability” affects her ability to earn an income.

4. I am satisfied that the wife suffers from dyslexia but I am unable to determine the extent to which this difficulty impacts upon her functioning.  I accept the wife’s evidence that she has difficulty reading on white paper and that when she undertook her tertiary studies many years ago she had some support.  However, the troubling aspects of her presentation in Court and the evidence of her own witness, Dr D, that the wife has healthy eyesight with no abnormalities create a level of disquiet about the veracity of her claim as to the extent of any disability or disabilities.  The wife’s presentation was erratic bordering upon bizarre.  Her demeanour was inconsistent and fluctuated between coherent submissions, aggressive cross-examination and intermittent theatrical sobbing which did not appear to be commensurate with the seriousness of the subject under discussion.

5. I am unable to find on the balance of probabilities that the wife suffers from the disabilities she listed in her case outline with the exception of dyslexia. 

6. The wife has modest superannuation but the prospect of future accumulation is uncertain.  She stated that she qualified as a lawyer but has not worked in that capacity since 2003.  She has demonstrated an ability to undertake unskilled labour but is in receipt of the Disability Support Pension.  

7. The husband has no health issues and the prospect of future accumulation of superannuation.  The husband is engaged in full-time employment and there is an obvious disparity between the parties’ incomes.

8. Disregarding her government benefits,[60] the wife has no income and is residing in a refuge.  The husband has the benefit of rental income which he uses to pay the mortgage on the X property but he has his own expense for rental accommodation. Both parties have credit card debts as outlined previously.

   [60] Family Law Act 1975 (Cth) s 75(3).

9. The wife is disadvantaged in terms of employment options because of her dyslexia and her lack of resources including having no permanent accommodation.  The clear disparity between the income of the parties and the fact that the husband has the prospect of receiving funds from any distribution through his current employment, are factors warranting an adjustment in  favour of the wife.

C Pty Ltd

1. The husband sought that some adjustment be made in respect of the $50,000 which he paid to the company, C Pty Ltd.  The husband asserted that this amount was a loan.  The wife had control of that money through the company and it has been spent.

2. Annexure AJM-1 to the husband’s trial affidavit is a minute of a Director’s Meeting for the company held on 6 August 2009, signed by the wife as Chairman and the husband as Lender.  The minute records a resolution that the company accept a loan in the sum of $50,000 from the husband.  The terms of the loan are recorded as being:

   … an interest-free loan for 10 years. No regular repayments are required. On 31 August 2019, the principal of $50,000 is due and payable to [the husband].

3. It records that it was further resolved that a loan agreement between the company and the husband be signed by the director of the company.  The document is dated 14 August 2009.  No loan agreement was produced in evidence.

4. The wife’s evidence was that the husband set up C Pty Ltd as a family company because they “wanted to have children.”  The wife agreed in cross-examination that “on paper” she was the sole director and owner of the company and agreed that $50,000 was paid into an account by the husband which was expended by her in the name of the company.  In response to counsel for the husband’s proposition that the sum of $50,000 was a loan,[61] the wife stated that the “accountant told me to do that for tax purposes.  I was never to pay it back.  It was not a loan.  The focus was for me to get pregnant.”

   [61] Affidavit of the husband sworn 3 December 2013 at Annexure AJM-1.

5. The wife essentially argued that C Pty Ltd was set up as a joint enterprise of the parties during the marriage, intended to be a business in which she could work under the direction of the husband.  She conceded however that, despite speculation and discussion with the husband about a number of types of businesses to be operated by the company, at no stage was any business ever engaged in.  She agreed in cross examination that she was renting an office for $500 per month and that the business was operating between 2009 and 2010.  She gave evidence that she spent $3,000 for a website and paid a monthly fee of $200 as well as advertising for $10,000 but was not clear what the nature of the business was.  When asked what the company was to do she stated: “it was to help people transition between jobs, that was one of the ideas”.  She also stated that she completed a chocolate making course and had another idea that the business would help autistic children. 

6. The husband rejected any suggestion that the company was set up for tax purposes or as a family trust structure.  He stated that he had nothing to do with the business and stated that the suggestion that this was for tax reasons was “nonsensical.”  The husband totally rejected any suggestion that he approved money to be spent by the company or that he had anything to do with strategy or any business of the company.  He stated that, “If I had anything to do with it, it would still have $50,000 in it.”

7. The wife rejected the husband’s proposition that she was following a dream by establishing the company.  

8. The wife relied on Exhibit E, which was an unsigned taxation return for the financial year ending June 2010, to assert that various payments totalling $28,817 had been made by the company for:

   a)advertising and promotion expenses;

   b)amortisation expense;

   c)bank fees and charges;

   d)conference expenses;

   e)copywriting expenses;

   f)depreciation;

   g)general expenses;

   h)internet costs;

   i)low cost equipment;

   j)membership fees;

   k)professional development;

   l)reception services;

   m)rent;

   n)telephone; and

   o)travel, accommodation and conference.

9. I accept the evidence of the wife about the expenses paid by the company totalling $28,817 because the tenor of the husband’s evidence was that he conceded that the wife had used funds for unsuccessful business ventures.  He did not dispute that the wife had used funds to attempt to conduct a seminar.

10. However the wife failed to provide any explanation for the balance of the funds advanced to the company by the husband, being the sum of $21,183 and failed to produce any bank statements or financial records as to where the funds were spent.  She did not produce any evidence other than that outlined at [117] of this judgment above[62] about the unsuccessful application she apparently made to the Commonwealth Bank in November 2013 for the company’s bank statements. 

    [62] Exhibit 5.

11. It was agreed during the trial that the company never conducted any business and did not produce any income.  Both parties agreed that the company now has no value and is inactive.  This is not property of the parties to the marriage which can be altered.  I am satisfied that the husband provided $50,000 to the company for the benefit of the wife.  At the time of the payment I find that the husband intended to provide the wife with those funds to conduct a business for the benefit of both parties as part of the marital financial arrangements.

12. The wife deposed to having used the funds but has not provided any evidence to account for the amount of $21,183 since June 2010. This is a factor which is relevant under s 75(o) of the Act which in my opinion must be taken into account in the circumstances of the case. It is also relevant to considering a just and equitable outcome for the husband.

Conclusion about the property of the marriage

1. This was a short marriage of approximately 20 months duration, so the property of the marriage cannot be found to have been accumulated from the efforts of the parties over a significant period.  It is indisputable that the financial contributions have been entirely made by the husband to the acquisition, conservation and improvement of the property of the marriage.

2. The wife has made a non-financial contribution as a homemaker during the marriage but there are no children of the marriage.  Also relevant to the extent of the non-financial contributions of the wife are the two periods of separation during the marriage of three months from the end of March 2009 and one month in June 2010.  Her non-financial contributions made in the running of the household would have been necessary for her own benefit regardless of the marriage, although I accept that they were greater because she was running a household for the benefit of the husband as well.  I refer to my previous findings that the wife has not proved her allegations against the husband.  In all of these circumstances, any adjustment for the wife’s non-financial contribution must be quite modest.

1. As has been discussed at length above, I accept the uncontested evidence of the wife that she suffers from dyslexia but cannot determine the extent to which this affects her due to a lack of independent evidence corroborating this or any other disability.

2. I am unable to ascertain the effect of any alteration of property upon the wife’s earning capacity and any alteration is unlikely to impact upon the husband’s earning capacity.[63]  The receipt of a lump sum payment by the wife as well as superannuation may affect her government pension.  However, the wife’s evidence in her financial statement is that if she receives any income or lump sum over $46,092.80 per annum, she will no longer be eligible for a Disability Support Pension.

   [63] Family Law Act 1975 (Cth) s 79(4)(d).

3. I find that the non-superannuation net property of the marriage is $816,780.

4. Overall, I am satisfied that the non-superannuation net property should be adjusted by about 10 per cent to the wife and about 90 per cent to the husband.  This adjustment would entitle the wife to about $81,678 and the husband to about $735,102.

5. However, the amount of $81,678 should be adjusted in favour of the husband to take account of the following which benefited the wife:

   ·$50,000 the husband has paid to the wife post separation through his salary, which was paid into the joint bank account;

   ·$5,046  paid by the husband to the wife for maintenance of her car and health insurance until October 2013[64];

   ·$400 being the discrepancy between the value of the contents of the home removed by the wife and the husband’s household contents;

   ·$21,183 paid by the husband to the company C Pty Ltd for the benefit of the wife, for which she has not accounted;

   ·The husband’s unquantified non-financial contribution to the renovation of the X property post separation;  

   ·Post separation the husband continued to pay all mortgage payments and other outgoings on the X property.

   [64] Affidavit of the husband sworn 3 December 2013 at Annexure AJM-6.

6. Taking into account the s 75(2) factors which favour the wife as previously outlined, I am of the view that the payment by the husband of a lump sum of $20,000 to the wife would be a just and equitable outcome.

7. The wife is entitled to a lump sum payment of $20,000 from the husband in return for the transfer of her interest in the X property and the transfer of her interest in H Pty Ltd and J Pty Ltd by way of property settlement.

8. I am satisfied that this is just and equitable having regard to the contributions of the parties.  This also takes account of the fact that since early 2014 the husband has received rental income from the X property but that this was used to pay the mortgage. This income was generated by the non-financial contribution of the husband in the completion of improvements to the property for the purpose of securing a tenant.

9. I am also satisfied that it is appropriate to order that the husband pay the sum of $5,300 from that lump sum to the wife’s previous solicitors for their unpaid legal costs and that she do all acts and things required to discharge the caveat secured against the title to the X property. This is to ensure that the property can be transferred by the wife to the husband. 

Superannuation

1. The husband proposed to transfer $45,000 from his superannuation fund to the wife’s superannuation fund, being about 42 per cent of the superannuation he has accumulated since the parties were married.  The wife sought $53,000, being half of the superannuation accumulated by the husband during this period.

2. The husband began the marriage with $100,000 superannuation and the wife had $30,000 superannuation.  Since the date of the marriage until the trial the husband has accumulated $107,484 in superannuation.  The wife’s superannuation has remained at $30,000 since the date of the marriage.

3. The payment proposed by the husband of $45,000 from his superannuation fund to the wife’s superannuation fund would result in her superannuation being 46 per cent of the husband’s.  I am satisfied that this is just and equitable having regard to the fact that the wife’s superannuation at the beginning of the marriage was 30 per cent of the husband’s superannuation.  The husband’s offer to pay the wife $45,000 is more than reasonable taking into account the short marriage and the contributions of the parties. This also takes account of the disparity in income of the parties.

Alteration of property 

1. The husband will retain the X property, his motor vehicle, the shares and funds from H Pty Ltd and J Pty totalling $3,450 and the sum of $162,484 in superannuation.  The wife will receive a lump sum of $20,000 from the husband (less the sum of $5,300 to be paid by the husband to the wife’s former solicitors in satisfaction of her unpaid legal costs) and will increase her superannuation fund to $75,000 with the transfer of $45,000 from the husband’s fund.

2. The husband will continue to take responsibility for the $407,000 mortgage and repayment of the $15,000 renovation loan from the bank.  The husband also has responsibility for repaying $18,220 for the loan to his ex-wife for completion of the renovation. 

3. The husband has sought an order that the wife forthwith notify ASIC of the current details of C Pty Ltd and A Pty Ltd.  Annexure AMJ-15 to the husband’s affidavit sworn 3 December 2013 indicates that there are no funds in the closed account for A Pty Ltd on 9 December 2011 and includes unsigned financial statements for that company.  There was insufficient evidence from either party about A Pty Ltd to make any findings. 

4. The parties agree that C Pty Ltd has no value and conducts no business.  Therefore, I see no reason to make any orders requiring the wife as director to do what she is required to do under the Corporations Act 2001 (Cth).

Spousal Maintenance

1. Section 72(1) of the Act provides that a party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

   (a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

   (b)by reason of age or physical or mental incapacity for appropriate gainful employment; or

   (c)for any other adequate reason;

   having regard to any relevant matter referred to in subsection 75(2).

2. Section 74(1) of the Act provides that in proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.

3. In her case outline filed on 14 April 2014, the wife stated that she has significant present and future needs by virtue of her health issues as follows:

   a)      The wife suffers neurological disorder and conditions.

   b)      The wife has had dyslexia from birth, along with con committed visual perception difficulties (also referred to as Meares Irlen Syndrome) meaning that the wife has significant difficulty with reading and writing, in particular on white paper, computer screens and other paper with light reflecting off the surface.

   c)      Following Encephalitis in 2001, the wife suffered a loss of auditory memory capacity as well as a heightened sensitivity to environmental stimuli and acute onset of migraine symptoms.

   d)      The wife has impairments in visual processing despite normal intelligence;

   e)      As a result of visual disturbances the wife regularly suffers from dizziness, confusion, nausea, fatigue, disorientation and motion sickness;

   f)      The wife has impairments in information processing including processing verbal information;

   g)      The wife has receptive and expressive language difficulties and learning difficulties associated with her disability;

   h)      As a result of visual and information disturbances the wife regularly suffers from migraine attacks with aura, with lethargy and fainting;

   i)      As a result of the history of migraine, the wife avoids exposure to reading and information processing activities that may also trigger migraine symptoms. In first instance the wife tries to manage acute onset of migraine symptoms using basic first aid techniques including lowering head between knees, cold, press, fresh air, moving away from fluorescent light, resting in low light room and recovery periods of sleep;

   j)      The wife suffers with pain in her coccyx region and requires special footwear;

   k)      The wife has a lack of visual perception for steps and requires assistance for climbing and descending a staircase;

   l)      The wife also has coeliac disease;

   m)    The wife suffers colon complications with a history of surgery;

   n)      As a result of colon complications and ongoing bleeding, the wife suffers anaemia;

   o)     The wife suffers from anxiety and post-traumatic stress.

4. The wife’s case outline stated that she is virtually unemployable due to her medical history and processing disorders and that she has increased needs associated with medical expenses and aids for her various conditions, such as the need to purchase:

   a)      Specialist footwear;

   b)      Specialist coloured paper to enable her to read;

   c)      Liquid iron to manage anaemia due to colon complications aggravated by not eating properly because of homelessness;

   d)      Speech pathology;

   e)      Appropriate assistive technologies such as tailored computing equipment and software.

5. Under s 72 of the Act, the wife is required to prove her case that she is unable to support herself adequately by reason of age or physical or mental incapacity for appropriate gainful employment or for any other adequate reason having regard to any relevant matters referred to in s 75(2) of the Act.

6. Although the wife suffers from dyslexia, there is no evidence to support her claim that she suffers from various disabilities.  My assessment of the wife is that she was not a credible witness regarding her serious allegations of abuse by the husband and the extent of her alleged disabilities and I place little weight on the unchallenged evidence of those practitioners the wife placed on affidavit, including Dr D and Dr B, who relied upon the self-reporting of the wife.

7. On the evidence produced by the wife in support of her case, I am unable to find, on the balance of probabilities, that she is unable to support herself adequately.  I cannot find that she suffers from a physical or mental incapacity for appropriate gainful employment.  I am also unable to find on the balance of probabilities that the wife is unable to support herself adequately for any other adequate reason.  Accordingly I am not satisfied that the wife has proved her case regarding her application for spousal maintenance and her application is dismissed.

8. I have considered s 81 of the Act which provides that as far as practicable a court should make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them. However the wife has not proved her case for spousal maintenance on the balance of probabilities.

Costs

1. The husband made an application for the costs reserved of $5,160 for the hearing on 16 December 2013 when he opposed an application to adjourn the trial made by the wife.  The trial was adjourned in order to provide the wife with sufficient time to prepare for the trial, having regard to her reading difficulties and lack of support.

2. The husband’s costs of $5,160 represent counsel’s brief fee for that date and five hours at Court for an instructor.  

3. The general rule is that each party should bear his or her own costs of proceedings under the Act. However, the Court is empowered to make an order for costs if it is of the opinion that there are circumstances which would justify such an order.[65]

   [65] Family Law Act 1975 (Cth) s 117.

4. Section 117(2A) of the Act mandates the factors to which the Court should have regard in considering whether to make an order for costs. They are:

   (a)the financial circumstances of each of the parties to the proceedings;

   (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)such other matters as the court considers relevant.

5. I accept that the wife suffers from dyslexia and that she had limited resources to prepare her case for trial in that she relied on the support of volunteers for reading.[66]  Although she claims to have qualifications as a lawyer, the wife was not legally aided and did not have the benefit of legal representation for the trial.  The wife had complied with the trial directions for the filing of material and had obtained some legal advice.

   [66] Exhibit A tendered in the hearing on 16 December 2013.

6. The husband made an urgent application on the same date as the wife’s adjournment application.  His application for sole use of the X property was heard on the same date and ultimately finalised by consent orders that day.  The parties also agreed to attend a conciliation conference on 18 February 2014 before the adjourned trial date.

7. In these circumstances, I see no reason to justify a departure from the principle that each party bear their own costs and I dismiss the husband’s application for the reserved costs.

8. Counsel for the husband also made an application for costs in relation to the present trial due to the conduct of the wife during the proceedings whereby, she required time to sleep and was unable to attend court due to illness at times during the trial, which accordingly extended the hearing time. 

9. Ordinarily costs might be considered at a later time but having regard to the request of the husband and the length of time already taken in the proceedings because of the wife’s difficulties, I have had regard to the material before me at the time and determined the question of these costs.

10. I accept that the hearing time was extended because of the requests of the wife for daily breaks to rest and because of her illness on two days.  I also accept the medical certificate provided by the wife for 30 May 2014, which indicated that she was suffering from a severe migraine and was unable to proceed that day.  I accept that the wife suffers from dyslexia and that this may have contributed to her stress in preparing for each day of the trial.  This is not conduct which warrants an order for costs against her having regard to the general principle that each party bears their own costs.

11. Accordingly, I dismiss the husband’s application for costs in the trial.

I certify that the preceding two hundred and eighty-six (286) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 23 December 2014.

Associate:

Date:  23 December 2014

ANNEXURE A

Documents relied upon by the applicant wife:

• Further Amended Initiating Application filed 4 February 2014;

• Financial Statement filed 18 February 2014;

• Affidavit of the wife sworn 4 December 2013;

• Affidavit of Ms K sworn 26 November 2013;

• Affidavit of Dr D sworn 14 November 2013;

• Affidavit of Ms B sworn 20 November;

• Affidavit of Ms U sworn 21 May 2014; and

• Affidavit of Mr W filed 27 May 2014.

Documents relied upon by the respondent husband:

• Amended Response filed 19 September 2013;

• Financial Statement filed 29 May 2014;

• Affidavit of the husband sworn 3 December 2013;

• Affidavit of the husband sworn 3 March 2014; and

• Affidavit of the husband filed 1 May 2014.