RUBIN & RUBIN
[2010] FamCA 903
•1 October 2010
FAMILY COURT OF AUSTRALIA
| RUBIN & RUBIN | [2010] FamCA 903 |
| FAMILY LAW – PROPERTY SETTLEMENT – Assets and Liabilities – Contributions – Adjustments – Just and equitable – Superannuation FAMILY LAW – SPOUSAL MAINTENANCE – Need for support – For adequate reason |
| Family Law Act 1975 (Cth) ss 75 & 79 |
In the Marriage of Robb (1994) 18 Fam LR 489
Chorn & Hopkins [2004] FamCA 633; (2004) FLC 93-204
In the Marriage of DJM and JLM (1998) 23 Fam LR 396; (1998) FLC 92-816; [1998] FamCA 97
D and D [2003] FamCA 473
Bar and JMR (2005) FLC 93-231
Mehmet v Mehmet No. 2 (1984) FLC 93-801
Robb v Robb (1995) FLC 92-555
In the Marriage of Hickey (2003) 30 Fam LR 355
In the Marriage of Omacini (2005) 33 Fam LR 134
Mallett v Mallett (1984) 9 Fam LR 449
In the Marriage of Ferraro (1992) 16 Fam LR 1
In the Marriage of Shewring (1987) l2 Fam LR 139
In the Marriage of Lenehan (1987) 11 Fam LR 615
In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712
In the Marriage of Zyk (1995) 19 Fam LR 797
In the Marriage of Coghlan (2004) 33 Fam LR 414
| APPLICANT: | Ms Rubin |
| RESPONDENT: | Mr Rubin |
| FILE NUMBER: | SYC | 1041 | Of | 2008 |
| DATE DELIVERED: | 1 October 2010 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | Justice Loughnan |
PLACE HEARD: Sydney
| HEARING DATE: | 6, 7 & 9 September 2010 |
REPRESENTATION
COUNSEL FOR THE APPLICANT WIFE: | Mr R. Mater |
| SOLICITOR FOR THE APPLICANT: | Maclarens Lawyers |
COUNSEL FOR THE RESPONDENT HUSBAND: | Mr J. Levy | |
| SOLICITOR FOR THE RESPONDENT: | Humphries & Feather Lawyers | |
Orders
That the orders of Judicial Registrar Johnston made on 11 August 2009 be set aside.
Within 28 days of the date of these Orders the wife shall pay to the husband $127,266.
Forthwith upon that payment, the husband shall do all acts and things and sign all documents as shall be necessary to transfer to the wife free of any encumbrance all his right, title and interest in the property situate at and known as C in the State of New South Wales being the whole of the land contained in Folio Identifier … (C property).
In the event that the wife does not comply with order 1 herein the parties shall forthwith do all acts and things as shall be necessary to sell the C property for the best price reasonably obtainable and to cause the proceeds of such sale to applied in the following manner and order:
4.1In payment of the costs of and incidental to the sale, including agent’s commission and legal costs;
4.2In payment to the husband of 17% of the remaining proceeds; and
4.3 In payment of the balance then remaining to the wife.
Within 35 days from the date of these orders the parties shall do all acts and things as shall be necessary to sell the property situate at and known as W in the State of New South Wales (W property) for the best price reasonably obtainable and to cause the proceeds of such sale to applied in the following manner and order:
5.1In payment of the costs of and incidental to the sale, including agent’s commission and legal costs;
5.2In payment of the parties’ liabilities for capital gains tax consequent upon the sale;
5.3In payment of the land tax liability consequent upon the sale;
5.4In payment to the wife of an amount equivalent to one half of any amount by which the land tax payable was less than $25,372; and
5.5In payment of the balance then remaining to the husband.
Except as otherwise provided in these orders, the husband and the wife each be declared the sole legal and beneficial owners of all items of property or resource including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively.
In the event that either the wife or husband refuses or neglects to comply with the provision of any order herein a Registrar of the Court is hereby appointed pursuant to Section 106A of the Family Law Act to execute all deeds and documents in the name of either the husband or the wife and do all acts and things necessary to give validity and operation to the said order.
Leave is granted to either party to apply in relation to the form or implementation of these orders within 2 calendar months on giving at least seven days prior written notice to the associate to Justice Loughnan and to the other party.
IT IS NOTED that publication of this judgment under the pseudonym Rubin & Rubin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 1041 of 2008
| MS RUBIN |
Applicant
And
| MR RUBIN |
Respondent
REASONS FOR JUDGMENT
The parties are divorced but for convenience I will refer to them as the wife and husband. After a marriage that involved more than 25 years cohabitation, the parties cannot agree on a settlement of their property. There was a property settlement hearing before a judicial registrar and the wife seeks a review of the judicial registrar’s decision. The husband now also seeks spousal maintenance.
Applications
The wife seeks orders in terms of a Minute of Orders attached to an outline of Submissions provided on 9 September 2010 as follows:
1.The husband shall within 14 days of the date of Order do all acts and things and sign all documents as shall be necessary to transfer to the wife free of any encumbrance all his right, title and interest in the property situate at and known as [C property] in the State of New South Wales being the whole of the land contained in Folio Identifier […] ([C property]).
2.The parties shall forthwith do all acts and things as shall be necessary to sell the property situate at and known as [W property] in the State of New South Wales ([W property]) for the best price reasonably obtainable and to cause the proceeds of such sale to applied in the following manner and order
2.1 In payment of the costs of and incidental to the sale.
2.1In payment of each of the parties (sic) liability for capital gains tax consequent upon the sale.
2.3In payment of the amount of the land tax not in dispute in the sum of $1,379.00
2.4In payment to the wife of $30,000.00.
2.5 In payment of the balance then remaining to the husband.
3.In the event that the wife is required to sell [C property] in consequence of Orders made by the Court then the parties shall each be liable for and pay and capital gains tax in their own name that accrues as a consequence of the sale of [C property].
4.In the event that there is further land tax payable with respect to [C property] or [W property] in addition to the amount provided for (sic) Order 2.3 then the parties shall each be liable for and pay one half of such amount.
5.Save as otherwise provided in these Orders, each of the parties retain all other property presently in their respective possession or control.
6.The husband pay the wife’s costs of an incidental to the original Hearing and the re-Hearing.
I note that the first time the wife set out the specific orders she sought was in a document provided after the oral hearing and on a day fixed for final submissions.
The husband seeks orders in terms of his Amended Initiating Application filed 2 September 2010 as follows:
1.That the Husband and Wife forthwith do all acts and things and sign all documents necessary so as to list the former matrimonial home situated at and known as [C property] for sale and upon settlement of the sale the proceeds of sale be distributed in the following manner and priority:
(a)In payment of Real Estate Agent's commission and selling expenses;
(b) In payment of the legal costs pertaining to the conveyance;
(c) In payment of any capital gains tax payable on the sale;
(d)In payment of any outstanding land tax payable by the parties;
(e) In payment of the balance then remaining as to 55% to the Husband and 45% to the Wife.
2.That the Husband and Wife forthwith do all acts and things and sign all documents necessary so as to list the property situated and known as [W property] for sale and upon settlement of the sale the proceeds of sale be distributed in the following manner and priority:
(a)In payment of Real Estate Agent's commission and selling expenses;
(b) In payment of the legal costs pertaining to the conveyance;
(c) In payment of any capital gains tax payable on the sale;
(d)In payment of any outstanding land tax payable by the parties;
(e)In payment of the balance then remaining as to 55% to the Husband and 45% to the Wife.
3. That the Wife forthwith pay to the Husband the sum of $497.00 per week by way of spousal maintenance by direct credit to the Husband's nominated bank account.
4.Except as otherwise provided herein the Husband and Wife each be declared the owner at law and equity of all items of property including but not limited to motor vehicles, shares, furniture, personalty including but not limited to money, jewellery and personal effects presently standing in their name or in their respective possession and control.
5.Except as otherwise provided herein the Husband and Wife remain liable for any debts in their own name as at the date of these Orders and in this respect shall indemnify and hold harmless the other from any liability in relation thereto.
6.That the Husband and Wife each be entitled to retain such superannuation, annuity entitlements and pension benefits to which they are or might become entitled in their own right.
7.That in the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these Orders, the Registrar of the Family Court of Australia be appointed pursuant to s. 106A to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity and operation to the deed or instrument.
Documents read
The parties relied on the following documents:
Documents relied on by Wife:
Response to an Application for Final Orders filed 18th April 2008.
Financial Statement of the wife sworn 1st September 2010 and e-filed 1st September 2010.
Affidavit of the wife sworn 1st September 2010 and e-filed 1st September 2010.
Affidavit of the wife sworn 30th June 2010 and e-filed 7th July 2010.
Affidavit of Mr N sworn 1st September 2010 and e-filed 2nd September 2010.
Affidavit of Mr D sworn 1st September 2010 and e-filed 2nd September 2010.
Documents relied on by Husband:
Amended application filed 2 September 2010.
Affidavit of the Husband sworn 12 November 2008 and filed 18 November 2008.
Affidavit of the Husband sworn 24 August 2010 and filed 2 September 2010.
Affidavit of the Husband sworn 2 September 2010 and filed 3 September 2010.
Husband’s Updated Financial Statement sworn 24 August 2010 and filed 2 September 2010.
The hearing
These are review proceedings, that is to say that the parties went through a trial on the same issues over two days in October 2009 before a Judicial Registrar. The review was listed for hearing before me over two days commencing on 6 September 2010. At several points of time during the hearing I checked with counsel for the parties as to whether the hearing would be completed within time. The wife sought the review and it was agreed that the cross-examination of the husband by the wife’s counsel would take up most of the time of the trial. Learned counsel for the wife estimated that he would require all of the first day and until about 11.30am on the second day for that task. I gave him that time. In the event, cross-examination of the husband was completed a few minutes after 11.30am. At about 3.45pm on the afternoon of the second day the wife’s case closed but it became apparent that submissions could not be completed that day, even if we sat on until 4.45pm. In any event learned counsel for the wife said that he would like the opportunity to prepare a further aide-mémoire to assist with his submissions. With the co-operation of the parties’ counsel, I adjourned the matter for submissions to 3:30pm on 9 September 2010. Again with the co-operation of counsel that was brought forward to 2:15pm on 9 September 2010. At the commencement of final submissions learned counsel for the wife sought permission to provide me with a further aide-mémoire on a subsequent day. That course was opposed by counsel for the wife and for reasons given at the time, including the obvious problems of fairness to the husband, I refused leave. In the event I was offered an aide-mémoire at the conclusion of submissions. It was not explained how this document was likely to differ from the aide-mémoire foreshadowed for presentation some time in the future. The tendered document purported to summarise facts from various bank accounts. There was no agreement from the husband directly or through his counsel as to the underlying facts, let alone the summary offered in the document. It may be that some of the facts had been put to the husband in cross-examination but certainly not all. In relation to some concessions sought from the husband about those matters during his lengthy cross-examination, the concessions were not forthcoming and could not fairly be sought during the trial. Finally, the husband’s counsel simply could not meet the argument presented in that way. No explanation was offered as to how the document could be of assistance without the necessary ground work. I refused the offered aide-mémoire. At about 4:45pm counsel concluded their submissions and judgment was reserved.
The issues
By order made on 7 September 2010, among other orders, I required the parties’ counsel to agree on the issues in respect of which they each contended that findings would be required. Prior to 9 September 2010 my associate was provided with a list of issues on behalf of the husband but I was not told that it reflected a list agreed with the wife’s counsel. The identified issues are:
1. Should the court after a marriage of 27 years and on the facts of this case find the parties’ contributions to be equal?
2. Should the court find that, by virtue of sections 75(2)(b), 75(2)(g), 75(2)(k) and 75(2)(o), there should be an adjustment to the husband of, as the husband asserts, 5%:
The wife having a greater income and greater financial resources than the husband;
The wife currently enjoying a superior standard of living to the husband;
The duration of the marriage having affected the husband’s earning capacity;
The financial support supplied by the parties over many years of the marriage to the wife’s mother, daughter and other family members in South Africa.
3. Whether, in addition to an adjustment under section 75(2), the court should also find that the husband has a current inability to properly support himself by virtue of his inability to obtain gainful employment and that the wife has the capacity to pay periodic spousal maintenance.
Following from points 2 and 3:
4. That, in early to mid 2005 the husband had expressed to the wife a desire to return to Switzerland and regain his old employment and the wife refused.
5. That the husband told the wife, as she admitted in her evidence, that they were not able to make ends meet in Australia.
6. That the wife will shortly be able to increase her income in Switzerland by about 30%.
7. The effect on the parties’ finances of funding their lifestyle, in particular the establishment of a new home in Australia and extensive overseas travel after they came to Australia in December 2004, with one income stream, in the context of them always having had a double income stream in Switzerland.
8. Following from point 5, that the court should find that the parties used both their liquid resources and the equity in the properties in Australia to fund that lifestyle and that the husband had warned the wife of their deteriorating financial circumstances prior to the sale of the [H] property.
9. That the parties funded many of their outgoings in Australia by the use of cash, as was admitted by the wife in cross-examination.
10. That the proceeds of sale of the [H] property were equally distributed between the parties.
11. That the court should find that the wife’s allegations, as vague and without supporting evidence as they are, that the husband has either prematurely distributed matrimonial property to himself or committed waste of some unspecified kind, are wrong and misguided.
12. That the court should find that there should be added to the asset pool the rental which the [C] property would have earned for 18 months post-separation were it not for the wife’s refusal to either:
Place the property upon the market for rental; or
Require her daughter and son in law to pay market rental for the property to the parties.
13. That the balance sheet should include entries for capital gains tax payable on the sale of the [W] property, the parties being agreed that the husband should have the whole of the proceeds of sale of that property and the parties being agreed that the wife will retain the [M] property.
14. That the balance sheet should include the land tax currently owing by the parties to the NSW Office of State Revenue.
Short history
As at the date of the hearing the wife was 60 years of age and the husband was 55. The parties started living together in either December 1979 or December 1980 and were married in 1981. They separated in September 2006 or May 2007. Their marriage was dissolved by the Federal Magistrates Court on 22 January 2009.
Children
There are no children of the marriage. The wife has a child from an earlier relationship, a daughter. The wife’s daughter was a member of the parties’ household for periods and was financially supported by the parties.
Background facts
The wife was born in South Africa in 1950 and as at the date of the hearing was 60 years of age.
The husband was born in Switzerland in 1955 and as at the date of hearing was 55 years of age.
The wife’s daughter was born in 1965. She is the child of the wife from a previous relationship.
In August 1976 the husband was employed at T Company in South Africa. The parties met there in October 1978. At some considerable risk to themselves, because of the prevailing Apartheid laws, the parties prosecuted their relationship in South Africa.
The husband says that in December 1979 the wife emigrated to Switzerland and the parties resided with the husband’s parents for six months. The wife says that the parties started living together on 9 December 1980. The wife says that was when she emigrated to Switzerland. Neither of the parties was cross-examined about this issue and I cannot resolve the dispute about when the parties first lived together.
In March 1981 the wife obtained employment as Nurse, earning about 6,500 Swiss francs per month. The husband was earning a similar wage as a Serviceman.
The parties were married in Switzerland in 1981. They resided in rented accommodation. The husband continued to work as a Serviceman and the wife as a Nurse. Neither of the parties had any significant assets. They jointly owned a Volvo motor vehicle that had been purchased for them by the husband’s parents.
Over many years the parties sent money to South Africa for the support of the wife’s daughter and of other members of the wife’s family. The parties’ evidence on this issue is expressed in different terms and cannot be readily reconciled. Neither party was cross-examined on the issue.
In February 1982, the wife’s daughter (then aged sixteen) commenced to reside with the parties in Switzerland. It is the unchallenged evidence of the husband that after about a year she returned to live with a carer in South Africa.
On 13 September 1986 the parties emigrated to Australia. They lived in rented accommodation at H and opened a joint account at the Commonwealth Bank.
In 1986 the wife was employed as a Nurse at S Hospital. The husband was unemployed for five months.
In February 1987 the husband was employed full time with A Company. He opened an A Company Credit Union account in his sole name.
In 1987 the wife obtained a second job through an agency and worked on her days off from S Hospital. The wife’s daughter, then aged twenty one, resided with the parties for a short time.
On 30 March 1988 the parties purchased a property at C for $112,500. The purchase was financed by joint savings, moneys redeemed from Swiss superannuation and $87,000 borrowed from the Commonwealth Bank.
Thereafter the parties resided in the C home. Renovations were undertaken. The husband managed the parties’ finances, providing $200 to $300 per month to the wife for housekeeping.
In 1989 the parties obtained Australian citizenship.
In February 1991 the parties returned to live in Switzerland. The C property was leased to tenants. In Switzerland the wife obtained employment as a Nurse and the husband worked as a Technician. The husband provided the wife with 200 to 300 Swiss francs per month for housekeeping. The C property rent did not cover the mortgage payments and the parties contributed moneys from their earnings to reduce to loan over C property.
The parties made annual visits to Australia to visit and support the wife’s daughter and her husband and their children.
Sadly, the wife’s sister died in 1997.
In February 1994 the parties paid out and discharged the mortgage over the C property.
On 18 March 1994 the parties purchased an investment unit at H for $170,000, financed by a mortgage on the C property, securing borrowings of about $170,000.
Thereafter the H unit was leased to tenants. The parties applied the rent and paid extra moneys in order to reduce loan to the Westpac Bank.
On 15 August 1996 the parties as joint tenants purchased a property at W for $220,000 or $230,000. The purchase was fully funded by a loan $230,000 from the Westpac Bank.
In 1998 the wife reduced her nursing employment to four days per week, and she started making and selling products. The husband assisted with packing and delivery.
In 1998 the wife commenced to perform as an artist on weekends, while still employed as a Nurse. The parties established a business, with the husband as the Manager and the wife as Artist. The moneys earned were deposited into a joint account with UBS Bank of Switzerland. The parties earned around 20,000 Swiss francs per annum. The wife says that there were several UBS accounts - one for live performances, another for CD sales and that at least one account was in the husband’s sole name. In cross-examination the husband agreed that there were 3 CDs produced and one DVD. He said that there was a joint account with UBS and two subordinate accounts, both in his name. One of the subordinate accounts was used for income from the wife’s live performances and the other, for CD/DVD sales. He says that there was also an account with the Migro Bank into which the proceeds of CD/DVD sales were also paid. He says that there were accounts at different banks for the proceeds of CD/DVD sales because of different interest rates from time to time and also because some clients preferred to pay into a particular bank.
Sadly, in 1999 the wife’s mother died. The parties stopped sending payments to her.
In 2000 the wife released a compact disc, performed at concerts and the parties received about 29,000 Swiss francs per annum from her art. She continued to be employed as Nurse.
In November 2001 the wife reduced her nursing employment to two to three days per week for health reasons. She suffered stomach pain and cramps.
On 15 May 2003 the wife collapsed in Switzerland. A resulting blood clot impaired the vision in her left eye.
In June 2003 the wife underwent an operation to remove her gall bladder.
In September the parties decided to demolish the house on the C property and rebuild. L Homes were contracted to build at a price of $268,782, with additional costs taking the cost to $280,000. The construction was financed by a $350,000 equity access loan from Westpac. The construction ultimately cost $350,000.
In 2003 the mortgage over the H unit was discharged by a transfer of 11,000 Swiss francs from the joint UBS account.
In 2004 the wife obtained a key card on the joint UBS account.
It is the wife’s case that from 24 April 2004 until 2 June, 2006 the husband withdrew a total of $15,000 from the Westpac Equity Access loan account.
On 29 June 2004 the final payment was made to L Homes in relation to the C property renovations. The balance owing on the Equity Access loan account was $284,294.31.
In July 2004 the husband travelled from Switzerland to Sydney via Thailand, to supervise the building of the C home.
On 12 October 2004 the wife received lump sum superannuation of 130,605 Swiss francs. That sum was deposited into the joint Swiss UBS account. On 14 October 2004 the husband transferred 120,000 Swiss francs from the joint Swiss UBS account to the Westpac joint equity access loan account to reduce the C property construction loan.
In late 2004 the parties ceased their respective employment – the wife left her job in September and the husband in November.
In 2004, 46,238 Swiss francs earned from the wife’s performances was withdrawn during the calendar year from the Swiss UBS account in the husband’s name.
On 16 November 2004 the husband withdrew 20,000 Swiss francs from a Swiss UBS account and spent it on items purchased and shipped to Sydney. That included shipping costs of 14,993 Swiss francs. The husband says that those moneys were also applied to the cost of airline tickets to Australia.
On 29 November 2004 a Westpac Class Plus account was opened in the joint names of the parties, accessible by ATM and internet banking.
On 13 December 2004 the husband received 248,160 Swiss francs from his superannuation and deposited it into the joint Swiss UBS account.
On 16 December 2004 $250,000 was transferred from the Swiss UBS joint account to the Westpac Bank. About $180,000 of that went into the Equity Access loan account and about $70,000 into the Classic Plus account. The parties transferred $384,500 to Australia being proceeds of superannuation and savings in Switzerland.
In December 2004 the parties again emigrated to Australia. They lived with the wife’s daughter and her family for five weeks until the C renovations were complete and the shipping container arrived. Upon their arrival, there was still work to complete inside the C house and substantial work was required outside the property.
In January 2005 the husband told the wife that all three properties owned by them have been paid off.
The wife met all outgoings on the C property. The rates on the W property were met from rental income. The parties bought a Toyota Corolla for $17,490, funded from the Equity Access loan account.
Thereafter the wife obtained part time nursing employment at a Hospital and with nursing agencies. The husband attempted to establish a catering business. He registered a business name, attended to uncompleted work at the C property and undertook duties around the home. The wife says that both parties completed work around the home. The husband paid $3,000 to $3,500 to a man in relation to establishing a business importing items from Switzerland. It came to nothing after about 3 or 4 months. The husband remained without paid employment. The wife earned $65,000 per annum.
On 1 February 2005 the Equity Access loan was repaid in full. The parties owned the C home, the W property, and the H unit, subject to $39,579 owed to Westpac. They had $47,219 in a Westpac Classic Plus account, a Toyota Corolla, furniture, personal effects and $15,000-$20,000 in a Swiss bank account.
In February 2005 the husband opened a Westpac Max-1 account in the joint names of the parties. The wife says that account was used exclusively by the husband.
On 16 February 2005 the parties travelled to Switzerland to attend the funeral of the husband’s father. The parties stayed for one month. The airfares and general costs were about $5,000 - $6,000.
On 31 March 2005 the parties bought a Toyota Cressida for $8,000.
In April 2005 the wife obtained a second job with a Nursing Agency two days per week. At the same time she worked four days per week at the Hospital. Her earnings were deposited into the joint Westpac classic account. The rental moneys from the H unit and the W property, totalling about $570 per week, were also deposited into that account.
On 1 May 2005 the $350,000 equity access loan with Westpac was repaid.
By early 2005 much of the C property reconstruction was completed. There were jobs still to do inside the house, such as the installation of lighting and blinds. The husband argues and the wife conceded that there was “quite a lot of work” to do on the grounds of the property by way of landscaping etc. The parties did not precisely join issue in relation to all of the work. On the basis of their affidavits and concessions made during cross-examination it appears that the following work remained to be done after the parties’ return to Australia in early 2005:
(a)Small concrete slab at the rear of the property and front steps;
(b)The purchase of pavers and draining fittings and the paving by the husband of a walkway that was either 60m or 17 m long;
(c)The extension of a retaining wall by Mr D and the replacement palings on the eastern fence by the parties;
(d)The purchase of topsoil, plants, trees and flowers;
(e)Levelling the yard, purchasing buffalo lawn, and laying the turf;
(f)(At most) two skips of material were removed from the property.
On the basis of their affidavits and concessions made during cross-examination the following supplies and appliances were bought after the parties’ return to Australia in early 2005:
·washing machine - $883; dishwasher - $479; gas heater - $799; installation of gas heater - $170 line trimmer and supplies - $133.20; garden shed - $680; digital camera / photographic equipment - $719.90;[1] Aluminium sliding door - $929; wall unit - $1,876; coffee table - $610; console - $440.
[1] See annexure A33 to the wife’s affidavit – receipts from Myer on 22 & 25 July 2006 for photographic equipment/supplies.
In cross-examination the husband conceded that some of the wife’s evidence about the work he deposed to being undertaken at the property between 2005 and 2006 should be preferred to his. He said that her evidence about the work in the first stage was correct. He conceded that his evidence was exaggerated. He conceded that where their evidence differed in relation to expenditure on appliances, the wife was correct. The effect of his evidence was that the relevant records are all in the C property and that he did not have the assistance of those records when preparing his evidence.
Based on the very helpful chronology prepared by the learned solicitor for the wife, the following are items about which there continues to be a dispute between the parties and where there is no invoice or receipt in evidence:
·Hire cost twelve skip bins 50 spotlights $1,000 (H)/20 lights[2] (W);
[2] The wife’s opinion about cost did not survive the objection process.
·15 external lanterns $1,000 (H)/7 lights[3](W);
·2 battery drills $800 (H)/2 cordless drills[4] (W);
·Electric chainsaw $500 (H)/powerless saw[5] (W);
·Motor blower $600 (H)[6]/(W);
·Roller mower $1,500 (H)/lawn mower $300 (W);
·Shelves and vice $1,200 (H)/$160 (W)[7] (the wife’s Annexure A32 is a duplicate of A30 and therefore this issue cannot be resolved);
·Venetian blinds $5,000 (H)/faux blinds $500 (W);[8]
·Ceiling lights $2,500 (H); 12 April one light $156.55, 27 June one light $89.95 (W);
·Objects to enhance house internally $2,000 (H); all items shipped from Switzerland, nothing further purchased (W);
·Ground floor tiles $12,000 (H); tiles purchased and laid before January 2005 (W).
[3] The wife’s opinion about cost did not survive the objection process.
[4] The wife’s opinion about value did not survive the objection process.
[5] The wife’s opinion about value did not survive the objection process. It may be that the wife intended to assert that the chainsaw was not very powerful rather than powerless, an odd concept for an electric chainsaw.
[6] The wife’s opinion about value did not survive the objection process.
[7] The problem here is that Annexure A32 to the wife’s affidavit is a duplicate of A30 and not relevant to this issue.
[8] Annexure A39 to the wife’s affidavit is a receipt for blinds dated 21 March 2005 in the sum of $74.95 but neither party contends that to be the price of the blinds.
It is not possible to make findings about the cost of those items.
In October 2005 the husband travelled to Switzerland via Thailand to collect and accompany his mother to Sydney for a three month visit with the parties. The husband stayed in Thailand for four days on either one or both legs of the journey. It is the husband’s evidence that he started his relationship with Ms V in October 2005. Ms V accompanied the husband to Sydney from Thailand. The husband’s mother met the air travel and accommodation expenses for her and for the husband.
On 9 January 2006 the husband’s mother returned to Switzerland. The husband accompanied her to Thailand where he remained for three weeks.
On 25 January 2006 the husband and Ms V travelled to Singapore.
It is the wife’s evidence that on 14 February 2006 the husband told the wife he was thinking of opening a business in Thailand, where he had a lover since 2004.
On 22 May 2006 the husband transferred $6,676 from the joint Westpac account to the joint Swiss UBS account. The wife withdrew 6,000 Swiss francs from the UBS account to pay the Swiss AHV insurance for both parties for the 2005/2006 year. The wife asserts that the parties will each qualify for a Swiss pension. She says that the husband will qualify when he attains the age of 67 years and that she will qualify at 65 years of age. The wife understands that the husband subsequently obtained an exemption for the 2006 year contributions, on the basis that he was unemployed.
In June 2006 the husband travelled to Queensland for two days and then to Thailand for three weeks.
On 5 June 2006 the husband commenced using accounts in the name of Ms V in Thailand.
The wife’s income for the financial year ending 30 June 2006 was $54,558. Her income was deposited into the joint Westpac Classic Plus account, together with the net rental proceeds of $300 per week.
In July 2006 the H unit sold for $285,000. The parties cleared $268,705 on the sale.
The husband opened a new account with the Westpac Bank and transferred funds to that account. He used $53,485 to discharge the Westpac property investment loan. Both transactions were unknown to the wife.
From the proceeds of sale the husband received about $82,000 and the wife about $85,000. The husband says that the Westpac investment property loan was repaid in the sum of $53,999.45 and the balance was applied by him for general living expenses and overseas travel costs.
On 13 July 2006 the balance owing on the Westpac investment property loan account was $53,485.25, up from $39,214.23 on 15 February, 2005. The February 2005 balance included the husband’s transfer of $11,595.60 from the Westpac Equity Access account to pay out the balance of the loan over the H property (paid out 1 February 2005).
The husband asserts that the parties separated in September 2006. He does not say what it was that marked that month as the point of separation. It is particularly odd given that he commenced his relationship with Ms V in October 2005.
In November 2006 the wife travelled to South Africa to see her terminally ill sister. On 11 November 2006 the husband travelled to Switzerland via Thailand for one month, returning 14 December 2006.
On 13 December 2006 the wife withdrew $120,000 from the Maxi Direct account and deposited the funds into an account opened in the wife’s name.
On 14 December 2006 the husband withdrew the remaining $63,010 from the Maxi Direct account and deposited them into his A Credit Union account.
On 19 December 2006 the husband deposited $60,000 back into the Maxi Direct account.
On 27 December 2006 the wife deposited $120,278.46 back to the Maxi Direct account.
On 25 January 2006 the wife travelled to South Africa to care for her sister’s children.
On 31 January 2007 the husband travelled to Thailand, returning 28 February 2007. In February 2007 the wife’s sister died. The wife extended her stay in South Africa.
In cross-examination the wife readily conceded that the husband arranged for and paid her air fares for each of her trips to South Africa. She took modest amounts of cash with her. For example she said that for one trip she took 300 Rand (about $A14) to buy a SIM card for her telephone. She then accessed joint accounts at bank branches and rarely at ATMs, for her living expenses. She estimated that she spent about $A1,000 for one trip. She used the parties’ Visa card for car hire, hotel accommodation and to pay for her sister’s funeral. The funeral cost 3,000 Rand (about $A141).
On 26 February 2007 the wife withdrew $88,743.74 from the Maxi Direct account, being half of the then balance.
The husband returned to Australia from Thailand on 28 February 2007.
On 1 March 2007 the husband deposited $5,000 cash into his A Staff Credit Union account.
From 9 March 2007 the wife was responsible for all outgoings on the C property. She continued her employment in two positions.
On 12 March 2007 the wife deposited $88,760 back into the Maxi Direct account.
18 March 2007 was the last occasion on which the parties shared a bed.
On 19 March 2007 Ms V arrived in Sydney.
On 5 April 2007 the wife withdrew $85,291.65 from the Maxi Direct account, being the balance of the funds remaining. In April 2007 the wife ceased depositing her salary into the joint account.
On 19 April 2007 the husband travelled to Thailand with Ms V, returning on 14 May 2007.
The husband left the matrimonial home in May 2007. The wife says that the parties separated on 7 May 2007. The wife received a text message from the husband advising he was in Switzerland. The husband and Ms V lived in rented accommodation in Thailand.
On 22 May 2006 the husband withdrew $10,000 from his A Staff Credit Union account.
In May 2007 the wife opened a Westpac account in her sole name.
In June 2007 the husband sold the Toyota Cressida for $3,500 and retained the proceeds.
On 14 June 2007 the husband travelled to Thailand.
The wife’s income for the financial year ending 30 June 2007 was $58,000.
In June/July 2007 the wife returned to Switzerland to perform in three performances. The wife’s daughter and her family remained in the C property.
The wife asked the husband to remove his furniture and belongings from the C property.
In July/August 2007 the husband travelled to Switzerland to seek employment. He variously says that he applied for 20-25 or 25-30 or 35-40 jobs. He can recall specifically applying for a job with his previous employer (a public authority) and for a job as a bus driver with the public transport authority in Zurich. His brother collected some of the responses to his applications. The husband has not produced copies of any advertisement, application or response, whether kept by the husband or his brother. The husband says that his applications were all unsuccessful and he returned to Thailand.
In August / September 2007 the husband commenced using two Thai bank accounts in his name. On 17 September 2007 the husband withdrew 100,000 Thai baht from an account in Ms V’s name in Thailand.
In September / October 2007 the husband withdrew two million Thai baht /$A80,000 from two accounts in his name in Thailand.
On 15 October 2007 the husband withdrew 60,000 Thai baht from an account in Ms V’s name in Thailand.
At some point the husband obtained a ‘retirement visa’ from the Thai authorities.
On 18 December 2007 the wife left the C home to live in rented accommodation in Switzerland. She obtained employment as a Nurse on a temporary basis four days a week. The wife suffered from stress and depression and was unable to engage in nursing employment for more than three months without a break. She returned to the C property twice in 2008 and twice in 2009. The wife’s daughter and her family maintained the property during the wife’s absence, meeting all outgoings and spending $20,000 on improvements including a pergola and feature garden.
The wife had no nursing employment between 14 April 2008 and 21 May 2008.
On 1 May 2008 the wife’s Ford Fiesta motor vehicle was written off in an accident. There was no insurance payment and the wife used public transport.
The wife had no nursing employment between 14 August 2008 and 28 September 2008.
In October 2008 the husband visited Switzerland. He purchased a Ford Aspire motor vehicle.
In June 2009 the husband and Ms. V were married.
The husband says that Ms. V earns $A100 per week from her business and that she provided that money to her mother for the care of her children who live with her mother. The husband’s sole income was in the form of rent from the W property at the rate of $350 to $500 per month.
On 11 August 2009 judgment was delivered in these proceedings by Judicial Registrar Johnston.
In August 2009 the husband sold the motor vehicle stored in Switzerland and paid 1,000 Swiss francs for unpaid storage fees.
On 25 August 2009 the wife filed an application for review.
On 7 September 2009 orders were made by JR Johnston granting a stay of the orders of 11 August 2009, save for Order 8 relating to the motor vehicle. Pursuant to the orders the husband’s received half the gross rental from C property of $300 per week. No allowance was made for the outgoings on that property.
In November 2009 the wife purchased a Renault motor vehicle.
In 2010 the husband and his second wife travelled to Switzerland.
It is the husband’s evidence that he does not own any property in Thailand. He says that Ms V has her own business in Thailand. The husband says that he resided in Thailand on a retirement visa and was therefore unable to engage in employment. He says that his only income is $780.50 per month being a half share of the rent from the W property.
Credit and Submissions
The evidence of the witnesses
The only witnesses called for cross-examination were the husband, the wife and Mr D. There are issues that fall to be determined solely by reference to the uncorroborated testimony of the parties. It is therefore necessary to made credit findings. The parties were born in countries where English is not the first language and although they are people of obvious culture and intelligence, their facility in English is not complete.
The husband’s oral evidence appeared to suffer from his efforts to be courteous. His English is heavily accented but his answers were clear and unequivocal in most instances. Unfortunately he agreed with propositions put to him without appreciating the extent of the concession he was making. I brought that to his attention on at least one occasion. For example, he gave an unequivocal answer when he variously meant, “that could be right” or “if you say so”. At one point he was challenged about his current wife’s occupation at a particular date. He answered to the effect that she was a ‘Tailor’. It became apparent that he meant to convey that her vocation was as a Tailor but that she was not in paid employment in that capacity (or in any other capacity) at the relevant time. I believe that the concepts of current activity and experience/qualifications were conflated by the witness. The only substantive defect identified in his written evidence was a failure to disclose any accounts with a Thai bank in a Financial Statement. The other matters on which he was challenged in cross-examination included his evidence that he had obtained, what he described as a Thai “retirement visa”, in about 2007. His Thai passport was produced and he was asked to identify the 2007 visa and he identified an endorsement in the passport for the wife’s counsel. Nothing was subsequently put before me to suggest that the husband’s original testimony was incorrect. The husband gave three different estimates of the number of job applications he made on his return to Switzerland in 2007. He put various figures ranging from 20 to 40.
The clearest example of the husband giving incorrect evidence did not lead to any criticism of him on behalf of the wife. At paragraph 6 of his first affidavit the husband says this:
“6. At the time when the Respondent and I met in South Africa she had a foster child who was approximately fourteen years old, whose name was […]. The respondent did not make me aware of the fact that she had a foster child until we had been going out for a few months. She then wrote me a letter in which she effectively said that she had a foster child, if I could not accept that foster child into out lives she could not continue a relationship with me. I loved the Respondent very much and so I accepted [the wife’s daughter] into our lives. The Respondent said to me at that time words to the effect of:
‘[The child] was my sister’s daughter. My sister died when [the child] was born. I’ve always treated her as my child.’
The age difference between the Respondent and [the wife’s daughter] is only about 11 years.”
The husband was not challenged about any aspect of that evidence and yet, as I understand the wife’s case, it is entirely incorrect. The wife’s evidence puts her about 15 years older than her daughter, not 11 and she deposes to her daughter being her own child, from a previous relationship. Because of the conflicting evidence in chief on this issue, I asked the wife about her daughter and she confirmed her written testimony – that the daughter is her child from a former relationship. The only rational inference from these circumstances is that the husband was told by the wife and at least until he swore his affidavit in these proceedings, was never disabused, of the following: that the wife was born in 1954 and not 1950 and that the child was the wife’s niece and foster child and not her daughter. Whatever might be said about that, there was no attack on the husband’s credit on the basis of his evidence about these matters.
The wife struggled with her evidence. On her own case, she has the fundamental disadvantage of having left responsibility for day to day financial arrangements to the husband. Thus much of her case is built on supposition or assumption or deduction, rather than first hand knowledge. More than that, however, the wife persisted in variously, giving unresponsive answers to questions and giving entirely inconsistent answers to the similar questions. For example:
·the wife agreed with the proposition that she knew that the husband drew money from her wages from ATMs because “he said I’ll go down to the ATM and get you that money”. Minutes later she would not agree that the husband told her that he was taking money from an ATM to pay bills. In response to an question from me the wife asserted that never once in her marriage did the husband tell her that he was going to an ATM;
·The wife agreed that the parties lived more cheaply in Switzerland and then contradicted that evidence a few minutes later;
·It was put to the wife that the husband came to her and said that they needed to sell the H unit and she said that was not true. Minutes later she agreed with a similar proposition.
It was necessary to give the wife a warning about those defects in her oral evidence.
The wife made grudging concessions in favour of the husband. For example. When asked about the husband making non-financial contributions of various sorts, rather than “yes” she answered “both of us mostly when there was (I had a) day off, not him alone” or to the effect “so did I”. She agreed with the proposition that after January 2005 the husband “devoted himself to finishing off the inside and outside of the house” but she then volunteered words to the effect that he did that because “he was at home the whole day”.
Mr D is a bricklayer and was a neighbour of the parties at C. He was called to give evidence in the wife’s case about work he did on the property. The issues on which he was called related to him supporting the wife’s case on the extent of the work already completed at the C property at the start of 2005 and as to the amount he charged for labour and supplies (plants). As to the status of the work in January 2005 he deposed:
“3. I recall that the landscaping, concreting of the driveway, and building of the retaining wall had all been done prior to [the husband] and [the wife] moving into the new house in January 2005.”
That is not true. Indeed, as to the landscaping he goes on at paragraph 5 to depose to undertaking further work on the eastern retaining wall in 2005 or 2006. However, the matter was put beyond doubt in cross-examination when it was put to him:
“When the [Rubins] arrived the landscaping was not completed”
He agreed.
Mr D went on to agree that at that time the turf had not been laid and that a wall on the left or eastern side of the block had not been built. He then adopted a series of photographs which depict the property before and after January 2005.
Mr D was challenged on his evidence at paragraph 5 that he only charged $500 for a small about of extra work he did in either 2005 or 2006 on the eastern retaining wall. He did not agree that he was paid between $1,200 and $1,500. He conceded that his evidence relied solely on his memory. He would not concede that the amount he was paid for plants was more than he deposed to at paragraph 6 of his affidavit. However, in cross-examination Mr D agreed that he was paid in cash for all of the work he did and for the goods he supplied, that he did not bank those moneys and that he has no written records to support his testimony. As to the work undertaken prior to the parties moving into the property in January 2005 he deposes:
“4. I do not recall how much I was paid for this work. I no longer have any records for work completed in 2003 and 2004. I believe it was approximately $5,000.00 to $6,000.00 based on how long it would have taken to complete the work. ….
In cross-examination it was put to Mr D that he had guessed the amounts and he rejected that proposition. It was put to him that it may have been $7,000 to $8,000 and he rejected that proposition. It was put to him that it may have been more that he deposed to and he agreed with that proposition.
I did not detect that Mr D set out to mislead the Court but his affidavit is internally inconsistent in parts and his testimony is entirely uncorroborated by invoices, receipts or banking records. On that basis his challenged testimony cannot resolve a disputed issue of fact.
Submissions
There is an agreed balance sheet:
JOINT BALANCE SHEET – [RUBIN]
ASSETS: HUSBAND WIFE
[C property] 750,000 750,000
[W property] 630,000 630,000
Wife’s Toyota Corolla 5,000 5,000
Wife’s contents 5,000 5,000
Husband’s contents 500 500
Co-Op Bank Switzerland 980 980
Husband’s Ford Aspire 2,000 2,000
Wife’s Renault 4,000 4,000
Wife’s Westpac Bank account 15,523 15,523
Wife’s UBS account 9,741 9,741
Wife’s First State Super 11,000 11,000
Wife’s Swiss Life 5,774 5,774
Husband’s [A] Credit Union account 1,000 1,000
Add back – [C] rent (18 months @ $550
per week = 78 weeks x $550 p.w.) 42,900 Nil
Husband’s assets in Thailand Nil NK
Husband’s Swiss State Pension NK NK
Total Assets: 1,483,418 1,440,518
LIABILITIES: HUSBAND WIFE
Capital Gains Tax – [W property] 60,372 60,372
Land Tax – [W property] 25,915 1,379
Wife’s Westpac loan Nil 32,255
Wife’s Tax Switzerland Nil 2,770
Total Liabilities: 86,287 96,776
NET ASSETS: 1,397,131 1,343,742
The written submissions on behalf of the Wife are:
The wife’s balance sheet is:
ASSETS $
[C property] 750,000
[W property] 630,000
Toyota Corolla 5,000
Wife’s contents 5,000
Husband’s contents 500
Co-Op Bank Switzerland 980
Ford Aspire 2,000
Renault 4,000
Wife’s Westpac account 15,523
Wife’s UBS account 9,741
Wife’s First State Super 11,000
Wife’s Swiss Life 5,774
Husband’s [A] Credit Union 1,000
Husband’s Assets in Thailand NK
Husband’s Swiss State Pension NK
Total Known Assets: 1,440,518
LIABILITIES
CGT ([W property]) 60,372
Land Tax ([W property]) 1,379
Westpac loan (W) 32,255
Tax – Switzerland (W) 2,770
Total Liabilities 96,776
Net Assets 1,343,742
1.Contribution entitlement
An assessment of the contributions of the applicant/respondent from the date of commencement of cohabitation to the date of the hearing expressed as a percentage of the net value of the assets of the parties.
(a) The wife contends that there should be a finding of contribution in her favour as to 55% to the husband 45%.
2.Relevant factors
Set out the contributions asserted to have been made under s 79(4)(a), (b) and (c) or s 90SM(4)(a), (b) and (c) as applicable by the applicant/ respondent from the date of commencement of cohabitation to the date of the trial and the findings the applicant/respondent asserts should be made in relation to each such matter.
(a) At the commencement of the parties’ cohabitation, neither of the parties had assets of a significant value.
(b) The wife was in employment throughout the parties’ marriage as a nurse and at times in addition to working full time as a nurse, undertook additional casual work as a nurse. From 1998 to late 2004, the wife earned additional income performing […] and from CD sales.
(c) The husband was mostly in paid employment throughout the parties’ cohabitation up until the parties’ return to Australia in December 2004. Since that time, the husband has not been in paid employment. The wife supported the parties from her own income from that time until the parties finally separated in May 2007.
3.Other matters
An assessment of the adjustment, if any, which it is asserted should be made to the contribution based entitlement (see 4 above) by reason of the matters referred to in s 79(4)(d), (e), (f) and (g) or s 90SM(d), (e), (f) and (g) as applicable expressed as a percentage of the net value of the assets of the parties and nominating the party in whose favour it is asserted the adjustment should be made.
(a) The wife contends that there should be an adjustment in her favour pursuant to section 75(2) in an amount to be determined subject to the evidence but not less than %.
4.Relevant factors
Set out the matters referred to in s 79(4)(d), (e), (f) and (g) or s 90SM(d), (e), (f) and (g) as applicable which it is asserted the Court should take into account and the findings the applicant/respondent asserts should be made in relation to each such matter.
(a) The wife is aged 60 years and is in reasonable health having regard to her age.
(b) The husband is aged 55 years and is in good health.
(c) The wife has the capacity to continue in her current employment as a nurse for the next few years. Having regard to the wife’s age and qualifications, her earning capacity will not be able to be increased, and will diminish with time.
(d) The husband has the capacity for gainful employment in the areas of work undertaken by him during the marriage including as a […] serviceman, […] mechanic, […] technician and in similar type employment. The husband has by living in Thailand chosen not to exercise his earning capacity.
(e) Neither party has the care or control of a child under the age of 18 years.
(f) The commitments of the wife as are necessary to enable her to support herself are set out in her statement of financial circumstances.
(g) Neither party has the responsibility to support any other person.
(h) The wife is not presently eligible for a pension, allowance or benefit.
(i) The payment of maintenance by either party to the other would not increase the earning capacity of that party by enabling that party to undertake a course of education or training.
(j) The marriage was of 26 years duration and has not per se affected either party’s earning capacity.
(k) The wife is not cohabiting with any other person. The husband has remarried and established himself in Thailand with his new wife.
Addbacks
(l) The wife contends that the husband has failed to make full and frank disclosure of his financial circumstances. The husband has made consistent withdrawals of cash and transfers of funds for which he cannot account and has failed to disclose his true financial relationship with his new wife in Thailand. The Court would find that he has not made a full disclosure of his assets enabling the Court to make Orders going beyond the identified property of the parties.
(m) In the alternative, the wife contends that there has been a premature distribution by the husband of matrimonial assets in circumstances where the husband could not be seen to have reasonably expended funds on necessary living expenses. The wife relies upon the same withdrawals of cash and transfer of funds.
(n) In the alternative, the wife contends that the husband has embarked upon a course of conduct to reduce or minimise the matrimonial assets or acted recklessly or wantonly with matrimonial assets. The wife relies upon the same withdrawals of cash and transfer of funds.
The effect of the wife’s orders is said to be:
Wife receives:
[C property]
$750,000
Sale proceeds [W property]
$30,000
Toyota Corolla
$5,000
Contents
$5,000
Renault
$4,000
Westpac account
$15,523
UBS account
$9,741
First State Super
$11,000
Swiss Life
$5,774
$836,038.00
Less liabilities:
Westpac
$32,255
Tax
$2,770
$35,025
Nett Assets
$801,013
Husband receives:
Sale proceeds [W property]
$500,000
Contents
$500
Co-op bank
$980
Ford Aspire
$2,000
[A] Credit Union
$1,000
Assets in Thailand
$0.00
Swiss State Pension
$0.00
Net Assets
$504,480.00
The written submissions on behalf of the husband are:
The parties cohabited between December 1979 and September 2006, a period of approximately 27 years, it is submitted, a long marriage.
There were no children of the marriage.
The husband is 55 years of age and the wife, it transpires, is 60 years old.
Neither party made any significant contribution at the beginning of the marriage.
Neither party made any out of the ordinary contribution during the marriage by way of, for example, inheritance or lottery win.
Both the parties worked in gainful employment during the marriage and contributed their earnings to their joint enterprise. The parties were able to accumulate property and superannuation in both Australia and Switzerland as a result.
The husband performed work in and about the various properties owned by the parties during the marriage as is set out in more detail in his affidavit. It is submitted that this was a significant non-financial contribution by him particularly in relation to the property at [C].
The wife in her affidavit concedes contributions made by the husband in the work done about their properties and as a homemaker which would exceed her own contributions of those kinds (see paragraphs 94 to 100 of the wife’s 2008 affidavit)
The [wife’s daughter], and various of the wife’s relatives were supported by the parties during the marriage. The wife concedes that this occurred although not in the quantum alleged by the husband (see paragraph 104 of the wife’s 2008 affidavit). She made further concessions on this subject during the trial.
The husband managed the parties’ finances to good effect and they were able to accumulate the assets now in existence due to his good management.
The husband is no longer in employment and has no possibility of obtaining employment due to restrictions upon his status as a resident of Thailand.
The wife on the other hand is still in employment and there seems no reason why that should not continue. Her income greatly exceeds that of the husband.
It is submitted that the court would find the parties’ contributions equal but on the basis of section 75(2) make an adjustment of 5% in the husband’s favour due to his inferior income, earning capacity and ability to obtain gainful and his support of the wife’s mother, daughter and other members of the wife’s family.[9]
[9] See Mehmet v Mehmet No. 2 (1987) FLC 91-801 and Robb v Robb (1995) FLC 92-555
Additionally the [wife’s daughter] has occupied the [C] property rent free since June 2007 despite the husband’s requirement that the property be rented on the open market or [the wife’s daughter] pay a market rent. It is submitted that the wife has caused the parties to lose income in an amount equivalent to the market rental of that property for a period of approximately 21 months.
An exact figure the amount lost in rental due to the conduct of the wife will be provided at the hearing.
The wife has made a number of different allegations against the husband. She took to the first trial an allegation that the husband had either wasted or hidden monies from the proceeds of sale of an investment property at [H]. She sought to add back a large amount into the pool of assets.
The husband denies any such conduct and says that he has at all times acted properly.
The wife fundamentally changed that allegation at the trial. She at that time additionally sought to assert that the husband had taken monies from various accounts and had not accounted for those transactions.
The husband submits that the wife is fundamentally mistaken in all her allegations. She is in the main seeking to add back (more than once) the husband’s share of the proceeds of sale of the [H] property which has already been distributed between the parties whilst at the same time not accounting for her own expenditure and use of her share of that money.
Dealing with the wife’s allegations as set out in the schedule on page 21 of her affidavit sworn 14.11.2008 and filed 17.11.2008:
16th November 2004
The husband’s case is that this money was spent in relocating he and the wife from Switzerland to Australia. The wife conceded this at trial.
24th April 2006 to 2nd June 2006
These monies were all used by the parties for various purposes and some solely by the wife including the costs of her trip to Switzerland in 2006 and the payment of her AHV Swiss insurance ($6,676 alone). The wife then conceded this at trial.
22nd May 2006
This is a double counting of a withdrawal referred to above and used for the payment of the wife’s Swiss Insurance.
July 2006
All of the proceeds of the sale of the [H] property can be accounted for, $53,994 was used to discharge the debt on the [W] property alone on 13th July 2006. Other money was used by the parties for their own expenses and the payment of the Westpac Equity Access Loan – Plan 2 on 13th July 2006 in the sum of $11,595.60. There are and have never been any monies misappropriated by the husband from the proceeds of [H property]. The balance of the proceeds of sale were subsequently divided equally.
19th December 2006
This money represented the husband’s share of the sale proceeds of the [H] property. On the same date the husband paid this money into the parties Westpac account.
March 2007
This is part of the $88,700 received by the husband from the sale of [H property]. The wife received an identical amount.
September/October 2007
Again this is the husband’s share of the [H property] sale proceeds being double counted by the wife.
It is the husband’s case that the wife well knows the facts about what she now alleges is “missing” money and well knows that in fact there is no “missing” money at all.
Further Submissions:
At the trial before Judicial Registrar Johnston the wife sought to add to her case in an entirely unspecified and unsatisfactory manner an allegation that the husband had made cash withdrawals from the parties’ accounts which were unaccounted for.
She did this by pointing to withdrawals but never acknowledging the parties’ real expenses and costs of living and at the same time ignoring related deposits.
The wife had never previously made any such allegation in her affidavit evidence. At trial the wife conceded that the parties paid their usual household expenses in cash and the husband gave evidence that in addition to that there was a large amount of work done on the [C] property in respect of which both tradesmen and materials were paid for in cash. There is no dispute that the parties had travelled extensively to Asia, South Africa and Europe and had spent money on furnishing and fitting out the new home at [C] which the wife concedes was to be their “dream home”.
It is submitted that this is not a case where there could or should be any add backs as sought by the wife, she has not and cannot produce any evidence to support her contention and it must fail. There is an element of irrationality to the wife’s case. During the marriage she was entirely happy to leave the conduct of the parties’ financial affairs to the husband. She now wishes to rewrite history in order to gain a perceived advantage in the case.
The wife will not and cannot satisfy the court that there has been any waste committed by the husband nor can she prove that there has been any premature distribution of matrimonial property.
Unfortunately the wife has not resiled from her position. She has filed a further affidavit which is again bereft of any evidence which would show any premature distribution of matrimonial property other than a division of the proceeds of sale of the [H] investment unit which was divided equally between the parties and the living of a lifestyle based on paying expenses in cash.
The wife is effectively asking the court to adopt a minute accounting exercise in relation to all transactions conducted upon the parties’ accounts over the last 2.5 years of the marriage and which transactions occurred commencing almost 6 years prior to the trial.
It is submitted that this approach is not open to the court and is against authority.
“74. The Full Court, on numerous occasions has reflected upon the nature of proceedings under s 79 and has explained that they are not a mathematical or accounting exercise. There is an obligation imposed on the trial Judge to examine the facts and evidence and to evaluate and then determine what is a just and equitable order on the facts of the case and applying the principles contained within the Act. That approach is best explained by the Full Court (Ellis, Strauss and Lindenmayer JJ) in the following words:
`The task of the court in proceedings under s 79 is not akin to an accounting exercise. The task is to examine the facts and evidence carefully to decide what is just and equitable in all of the circumstances. There cannot be expected to be a universal answer to that question on any given set of facts. It is of the essence of judicial discretion that different minds may comfortably arrive at different conclusions. By and large, marriage is a joint venture where parties can expect to buffer each other from the winds of misfortune that blow during the course of their relationship. The degree of the buffer may depend on how much individual sailing they do without consultation or indeed contrary to the wishes of the other. But there can be no certain answer to how much that should be when applying s 79 principles. See Ellis, Strauss and Lindenmayer JJ in Harris (1991) FLC ¶92-254; (1991) 15 Fam LR 26, and by Fogarty and Finn JJ in Beneke (1996) FLC ¶92-698; (1996) 20 Fam LR 841 and also Kay, Warnick and May JJ in [D & D] (unreported) Appeal No EA 6 of 2003.’''[10]
[10] Bar and JMR (2005) FLC 93-231.
Further, the wife has not served any documents which would:
(a) Allow the court to undertake that exercise in any event.
(b) Allow the husband to, firstly, understand what allegations are made against him, and secondly, reply to those allegations.
In summary this is in reality a straightforward matter where the contributions should be found to be equal and the section 75(2) factors indicating a modest adjustment in favour of the husband are:
1.The wife’s superior income and earning capacity;
2.The section 75(2)(o) factor surrounding the financial support of the wife’s daughter and other family members.
3.The failure by the wife to allow the [C] property to be placed on the rental market thereby occasioning loss to the parties.
It is submitted that the just and equitable outcome of the case would be to make the orders sought by the husband.
The approach in proceedings under section 79
The case law reveals that there is a permissible approach to the determination of an application brought pursuant to the provisions of s 79. That approach involves four inter-related steps. First, I am to make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Second, I should identify and assess the contributions of the parties within the meaning of s 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the husband and wife. Third, I should identify and assess the relevant matters referred to in s 79(4)(d), (e), (f) and (g), (the other factors) including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourth, I should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case. [11]
[11] This summary of the effect of the authorities is paraphrased from the comments of the Full Court in In the Marriage of Hickey (2003) 30 Fam LR 355 at 370.
There is no mention of steps in section 79 but it is convenient to approach the exercise of discretion in a structured way. The Full Court has supported such an approach.
As to the approach to be adopted, it is necessary in this case to emphasise the nature and practical limits of the task set by the legislature in section 79. As I said to learned counsel for the wife, with spectacular lack of success, on several occasions during the trial, the Court’s task in identifying a just and equitable settlement of property, is not an audit of matrimonial financial transactions during all or some part of the marriage.
Similar sentiments have been expressed in many judgments but from an unreported judgment of the Full Court in D and D [2003] FamCA 473 comes:
49.We think that in extracting a common principle from these cases and the cases they have relied upon it is important to remember, as was pointed out by Ellis, Strauss and Lindenmayer JJ in Harris (1991) FLC 92-254; (1991) 15 Fam LR 26, and by Fogarty and Finn JJ in Beneke (1996) FLC 92-698; (1996) 20 Fam LR 841, the task of the court in proceedings under s 79 is not akin to an accounting exercise. The task is to examine the facts of each case carefully to decide what is appropriate and just and equitable in the circumstances. There cannot be expected to be a universal answer to that question on any given set of facts. It is of the essence of judicial discretion that different minds may comfortably arrive at different conclusions. By and large, marriage is a joint venture where parties can expect to buffer each other from the winds of misfortune that blow during the course of their relationship. The degree of the buffer may depend on how much individual sailing they do without consultation or indeed contrary to the wishes of the other. But there can be no certain answer to how much that should be when applying s 79 principles.
The wife’s case was presented as if there was to be a tracing exercise as to the use and application of funds from 2005 to date. It is rare that the evidence in a case permits such an exercise, save perhaps for an examination of the fate of a particular fund. Here the evidence did not permit such an exercise. Because of that fact; because the wife left the financial management to the husband; because to some extent the parties each had access to joint funds; because the parties evenly divided about $170,000 but made no formal attempt to account to the Court or each other for the disbursement of those funds; because they each lived and travelled over the years since separation; it was simply not possible.
The property of the parties at the date of the hearing
The Court is required to make a finding as to the property of the parties. That involves identifying assets, liabilities and financial resources and their values.
The husband and wife settled a joint balance sheet. As to the disputed items:
Husband’s Assets in Thailand
Although endorsed on the joint balance sheet, this is not really a balance sheet issue. The wife cannot identify any assets owned by the husband, nor the value of those assets. The argument relates to disclosure. I cannot make a specific finding about any such assets and it is not argued on behalf of the wife that I can make such a finding.
Husband’s Swiss State Pension
I was not given a satisfactory explanation for this item being on the agreed balance sheet. The reference on the balance sheet refers to the husband’s Financial Statement which makes a reference to his Swiss State pension, with a value not known. The wife too has such an interest, although she does not refer to it in her Financial Statement. I cannot make a specific finding about the value of those interests.
Add Backs
There are circumstances whereby assets are included in the list for division although they no longer exist. The same logic would apply to the exclusion from the relevant list of liabilities, debts that do exist at the date of the hearing. In the Marriage of Omacini (2005) 33 Fam LR 134 the Full Court noted:
[30] To date, three clear categories of cases have emerged where the court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
(a) Where the parties have expended money on legal fees. In In the Marriage of DJM and JLM (1998) 23 Fam LR 396; (1998) FLC 92-816; [1998] FamCA 97 the Full Court said at [11.6]:
[11.6] For reasons set out in Farnell, s 117 provides that each party to proceedings under the Family Law Act shall bear their own costs unless the Court otherwise orders. Failing to add back monies expended by parties on costs frequently has the effect of defeating the policy of s 117 by permitting the pool of available assets for distribution between the parties to be diminished by any monies that either of the parties have managed to spend on their costs up to the date of trial. We are of the view that the normal approach ought be to add costs already paid back into the pool. Whilst there may be cases where that approach is inappropriate, the reasons why it is not taken ought normally be spelt out.
(b) Where there has been a premature distribution of matrimonial assets. In In the Marriage of Townsend (1994) 18 Fam LR 505; (1995) FLC 92-569 Nicholson CJ as he then was with whom Fogarty and Jordan JJ agreed, said at Fam LR 509; FLC 81,654:
In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2). It seems to me that the husband has had the benefit of that money. Had he retained, for example, the taxi licence instead of selling it, that would have been brought into account as an item of property which would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the husband’s receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly.
(c) In the circumstances outlined by Baker J in In the Marriage of Kowaliw (1981) 7 Fam LN N13; (1981) FLC 91-092 at FLC 76,644:
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para (a) and (b) above having economic consequences is clearly in my view relevant under s 75(2)(o) to applications for settlement of property instituted under the provisions of s 79.
As to the disputed issues in this case:
C property rent
The wife’s daughter and her family lived in the C property for about 18 months, rent free. That arrangement was implemented and continued without the husband’s consent and in the face of his opposition. There is no evidence to the effect that the wife’s daughter could not afford to pay rent or make a financial contribution to the parties. When the wife was asked about the level of current income earned by each of the wife’s daughter and her husband, there was an objection on the basis of relevance. It follows that it is no part of the wife’s case that there was no rent paid for the C property as a matter of necessity. Indeed, since the matter was brought before the Court on 7 September 2009, pursuant to orders agreed on that date, the wife has caused the husband to receive one half of an agreed rental value for the C property. The wife does not say[12] she is paying the husband, so I take it that the payment comes from the wife’s daughter. For the purposes of the orders consented to on 7 September 2009, the parties have agreed that the relevant rental value of the property was $550 per week.
[12] In her Financial Statement sworn 1 September 2010.
It is submitted on behalf of the wife that this is not a proper add-back item and the circumstances should be taken into account pursuant to section 75(2)(o).
It is submitted on behalf of the husband that income was foregone in the form of the rental value of C property. The wife conceded in cross-examination that she ignored the husband’s requests to have the property rented. It is submitted that she could have asked the wife’s daughter to pay rent or could have asked the wife’s daughter to move out to allow the property to be privately rented. It is submitted that this resulted from a deliberate act of the wife, whether reckless or negligent.
This issue is further complicated because the wife’s daughter has spent $20,000 on the property. Contrary to the submission made on behalf of the wife, there is no evidence that the property has been improved as a result of that expenditure. The unchallenged evidence is that in addition to rates, utilities and insurances, the wife’s daughter built a pergola at the back of the house, removed a very large palm tree and replaced it with a feature garden.
This is out of the ordinary circumstance where a claim is often made for an allowance for the rental foregone as a result of one of the parties having the use of a substantial marital asset to the exclusion of the other. There is rarely an add back for that circumstance. Here however, the use of the property has largely been given over to a third party.
I appreciate that the approach proposed on behalf of the husband is available. The circumstances are akin to a preliminary distribution or indeed to a deliberate act which has reduced the value of an asset – in this case a asset that would have come into being in the form of about $42,000 in gross rent. Nevertheless I will not add back to the balance sheet any amount for the rental value of the C property. The task before me is to identify the assets and liabilities of the parties and by definition, their current value. There are the circumstances canvassed in Omacini above, where notional assets are taken into account or debts ignored but they are not the norm. There is an increased risk of injustice or at least of artificiality, in circumstances where notional assets make up part of the pool of assets to be divided. Minds would no doubt differ on this matter but I will take the approach proposed on behalf of the wife.
I find that the assets are:
Assets
Value
C property
$750,000
W property
$630,000
Wife’s Toyota Corolla
$5,000
Wife’s home contents
$5,000
Husband’s home contents
$500
Husband’s Co-op Bank Switzerland
$980
Husband’s Ford Aspire
$2,000
Wife’s Renault motor vehicle
$4,000
Wife’s Westpac account
$15,523
Wife’s UBS account
$9,741
Wife’s First State Super
$11,000
Wife’s Swiss Life
$5,774
Husband’s A Credit Union account
$1,000
Total
$1,440,518.00
Liabilities:
The husband and wife are in dispute as to a number of debts:
Wife’s Westpac loan (wife’s paid legal costs)
The wife seeks the inclusion in the list of assets and liabilities, her debt to Westpac Bank in the sum of $32,255. It is argued on behalf of the husband that the loan should not be included. The wife says that she raised that loan to pay her legal costs.
Both parties have paid legal fees associated with their property proceedings.[13] The husband has paid $2,150.28 in legal fees. The source of payment was his savings. The husband owes in excess of $90,000 in fees billed and estimated to the conclusion of the proceedings. The wife has paid over $87,000 in legal fees. She paid $55,411.52 to her former solicitors, counsel’s fees of $12,540 and $19,597.44 to her current solicitors. Of those amounts the bulk of the former solicitors’ fees came from funds available to her, including the proceeds of sale of the H property. The rest came from funds borrowed from Westpac although the wife conceded in cross-examination that she chose to borrow rather than exhaust her available funds. The counsel’s fees and payment to her current solicitors came from post separation earnings. From DJM and JLM above, the Full Court said:
We are of the view that the normal approach ought be to add costs already paid back into the pool. Whilst there may be cases where that approach is inappropriate, the reasons why it is not taken ought normally be spelt out.
[13] Exhibit 12.
But for the payment of legal fees, even from post separation earnings,[14] it is likely that the available pool would be greater than it is. This issue matter was specifically canvassed with the parties’ counsel and the usual approach was rejected. I do not propose to add back the paid legal fees but only because neither party wants that approach taken.
[14] cf Chorn & Hopkins[2004] FamCA 633; (2004) FLC 93-204.
However, in those circumstances there is no reason to include the Westpac loan. It would make no sense to allow a debt used to pay costs, if the costs are not added back.
The approach pressed on me by the parties favours the wife by a considerable margin[15]. That is a matter to be taken into account under section 75(2)(o).
[15] In the normal course at least that part of the paid costs that were not paid from borrowed funds would be added back – here that would be about $54,000 in the hands of the wife and $2,150.28 in the hands of the husband. Because the borrowings were not necessitated by the payment of costs it is possible that even more would be added back on the wife’s side of the ledger.
Land tax – W property
The wife seeks that the allowance for land tax be in the sum of $1,379. The husband argues that it should be included at $25,915.
The parties have been assessed to pay $25,915 in land tax. I was told that a single expert, Mr F, says that the land tax obligation should be $1,379. I was told that the parties are seeking a variation of the assessment. In a sense it does not matter what the ultimate assessment will be as it will be payable on the sale of the property and the controversy will be resolved one way or the other, following the sale. The problem is that the husband seeks to retain the entire net proceeds of sale of the property.
I will deal with the practical problems associated with this issue in the form of orders made. That is the approach I foreshadowed to counsel. For the purposes of identifying the pool of assets, however, the land tax should be included, as assessed. If the parties’ argument succeeds then there will be a bonus.
The wife’s income tax from Switzerland
The wife seeks that her Swiss income tax of $2,770 be included in the list of liabilities going to make up the pool of assets for division. I am to identify and value the assets and liabilities of the parties. The wife owes the debt. If she had paid the debt her savings are likely to have been reduced. There is no suggestion that the debt relates to the payment of costs. I will include the debt.
I find that the liabilities are:
Liabilities
Amount
Capital gains tax – W property (joint)
$60,372
Land tax – W property (joint)
$25,372
Wife’s Swiss income tax
$2,770
Total
$88,514.00
Net assets
The net assets have a value of $1,352,004 ($1,440,518 - $88,514).
Financial Resources
The husband and wife disclose no financial resources.
Contributions
The obligations placed on the Court by section 79 call for an assessment of the respective contributions of the husband and wife. The manner of assessing contributions has been the subject of previous decisions. The contributions of a parent and homemaker are to be assessed, not in any merely token way, but in terms of their true worth to the building up of the assets.[16] There are said to be risks in taking an overly technical approach to the assessment of the respective contributions of the husband and wife in that the Court can become involved in questions of the quality of contributions which go far beyond the real world expectations of husband and wife.[17]
[16] Mallett v Mallett (1984) 9 Fam LR 449; In the Marriage of Ferraro (1992) 16 Fam LR 1.
[17] In the Marriage of Shewring (1987) l2 Fam LR 139.
As to whether the Court should apply the considerations in section 79(4) to the assets globally or asset by asset, the authorities have it the latter approach is preferred, in appropriate circumstances either approach is permissible and sometimes the asset by asset approach is best. See In the Marriage of Lenehan (1987) 11 Fam LR 615; In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712; In the Marriage of Zyk (1995) 19 Fam LR 797.
In In the Marriage of Coghlan (2004) 33 Fam LR 414 the Full Court allowed that superannuation may be included in the list of property drawn up as “the first step” in the determination of proceedings under s 79, whether or not a splitting order is sought in those proceedings. The Full Court suggests that that:
“… approach could be adopted where the parties agree that it should be adopted, or where the court is satisfied that the superannuation interest is indeed property within the meaning of the definition of property contained in s 4(1), or if the interest is not within that definition, but is of relatively small value in the context of the value of the other assets in the case, or there are features about the interest which leads the court to conclude that this would be an appropriate approach.”
Here the case has been argued on a global basis. The wife’s superannuation interests are of relatively small value and neither party seeks a splitting order. I will deal with the assets globally.
Contributions
Section 79(4)(a) Contributions
Financial contributions, both direct and indirect were made by each of the husband and wife.
Neither of the parties had significant assets at the commencement of the marriage. The husband’s parent’s bought the parties a Volvo motor vehicle at the start of the marriage.
Both parties had paid employment during the marriage. There were periods when they were both out of paid employment, however they were mostly in paid employment until September 2004. There were periods when the wife had two or more jobs. The husband had no paid employment after November 2004. The wife was out of work from September 2004 but returned to paid employment in April 2005.
Each of the parties received superannuation payouts. On 12 October 2004 the wife received lump sum superannuation of 130,605 Swiss francs. On 13 December 2004 the husband received 248,160 Swiss francs from his superannuation. There is no evidence about the contributory period that gave rise to those interests but it follows that only the husband’s interest could relate to a period prior to the parties’ cohabitation.
The parties both worked in an enterprise based on the wife’s performances. The husband was the Manager and the wife performed. For a time the parties both worked in an enterprise aimed at selling products. The wife made the products and the husband packed and distributed.
Section 79(4)(b) contributions
This provision deals with direct and indirect non-financial contributions other than those made in the form of parent and homemaker contributions.
Non-financial contributions were made by and on behalf of both parties.
For 6 months at the start of the marriage the parties resided with the husband’s parents for six months.
It is an agreed fact that the husband undertook most of the management of the family financial arrangements.
The parties undertook work on the home unit at H. Work was undertaken on the kitchen, bathroom, laundry, master bedroom and the dining room of the property. The husband’s evidence is as follows:
(a)A number of the walls in the apartment were damaged or chipped and had to be repaired. I repaired the surfaces of the damage areas and, where necessary, filled any cracks or holes.
(b)Some of the door frames were badly rusted and I sanded them and repainted them in enamel paint.
(c)All of the paint on the walls and ceilings were in a poor condition and I sanded the walls and ceilings down and repainted them again with either two or three coats of paint.
(d)Some of the window blinds were damaged and had to be replaced and I replaced them or repaired them. Others were in a serviceable condition and I simply cleaned them.
(e)The windows on the outside of the apartment were very dirty and looked terrible and I cleaned them over the space of a number of days.
(f)The entrance door to the apartment was in a very bad condition and had to be changed. I therefore sourced a new door for the apartment and had it installed.
(g)The black and white kitchen floor was in poor condition and I replaced the floor with new linoleum. I also bought a new range hood as the old range hood was in a bad condition and I fitted the new range hood in the kitchen.
(h)The wooden kitchen cabinets were equipped with laminex and I had to replace some of the laminex or glue other parts of the laminex back.
(i) The shelving in some of the cupboards in the laundry were damaged and needed to be replaced. I replaced that shelving.
(j)Several of the internal doors in the premises were damaged and I had to either repair or replace the wood and/or fittings on them.
(k)The light fittings in the dining room, kitchen and bedrooms were all damaged and had to be replaced. I sourced the new light fittings and installed them.
(l) The doorbell was not operational and I had to buy a new one and install it.
(m)There had been a barbeque on the balcony for a long time and the bright stone floor was black and greasy. I had to treat it with a special cleaner to clean off the grease. As well the walls and ceiling of the balcony had to be cleaned and then I repainted both the walls and the ceiling. I also replaced the ceiling light on the balcony.
(n)The hinges on the garage door were badly damaged and I repaired the hinges so that the door would operate freely. The inside of the garage was dirty and I had to clean out some junk that had been left there by the previous tenants and also remove oil marks from the floor with a special cleaner. I also repaired the shelf on the wall because it was loose. I put in new brackets into the wall.
(o)At the end I had arranged for all of the carpet in the apartment to be steam cleaned by a specialist carpet cleaning company.
(p) The stove in the kitchen was old and I recall that there was something wrong with the baking oven in the stove. I therefore replaced the stove in the kitchen of the apartment.
There was no challenge to that evidence and I accept it.
As to the C property the wife deposes to the following:
·The husband installed lights at the C property, with help from the wife;
·The husband installed venetian blinds at the C property;
·The parties laid grass at the C property. The husband levelled the ground, the wife wheelbarrowed the grass and the parties laid the grass;
·On her days off the wife helped to erect a fence on the left side of the property and the husband assisted. I assume that a tradesman erected the fence;
·The husband laid pavers on the left side of the C property.
The husband was more available than the wife to undertake work on the properties and I am satisfied that he did more of that work. That is not to say that the wife did not also help.
Section 79(4)(c) contributions
This provision deals with contributions to the family including contributions in the form of homemaker contributions and contributions to children of the marriage.
The wife deposes to the following:
·When the parties both had paid employment they shared household chores equally. That included cooking, cleaning, washing clothes washing up and shopping;
·The husband did more shopping than the wife while he worked technician in Switzerland, as he was on the road for the purposes of his employment (and therefore, I assume, was able to do the shopping more easily than the wife). The wife joined him on shopping expeditions, during the winter months;
·When he was not in paid employment the husband did more cooking than the wife. During those periods in Australia and while the wife was in full-time paid employment he also did more of the shopping, cooking and washing. She nevertheless accompanied the husband shopping each week.
Contributions were made by the parties to the wife’s daughter. The Full Court has considered the issue of contributions made to children who are not the children of both parties to a marriage. It has been held that contributions to such children cannot be recognised under section 79(4)(c). In the Marriage of Robb (1994)18 Fam LR 489 the Full Court dealt with that interpretations made by Mullane J at first instance. The Full Court said at p 500:
This construction is, in our view, placed beyond doubt by his Honour's opening statement in relation to ``Contributions To Property And To The Welfare of The Family'’ (Paras (a), (b) and (c) of subs 79(4) of the Family Law Act) where he said:
For the purposes of subs 79(4)(c) the family does not include the children K and B of the wife's previous marriage as they are not within the usual meaning of the expression, ``children of the marriage'’, used in that paragraph. (See the Full Court of the Family Court of Australia in In the Marriage of Mehmet (1986) 11 Fam LR 322 ; [1987] FLC 91-801 but cf Cohen J in In the Marriage of Molen (1992) 16 Fam LR 203 ; [1993] FLC 92/2-344 at Fam LR 205-6 FLC 76,649/2-50).
`Thus, we do not think that his Honour fell into the error of double counting in respect of the husband's contribution to the welfare of B and K and ground 8 is therefore not made out.
In relation to ground 4, just as the husband's contribution to the welfare (including the financial support) of the wife's children of her former marriage, for the reasons given by his Honour in the passage from his judgment last quoted (with which we agree), could not be taken into account as a contribution by him under s 79(4)(c), so too the wife's contribution to the welfare of those children could not be taken into account on that basis. However, as his Honour did (in our view correctly) take the husband's contribution to those children into account under s 75(2)(o), the question arises whether he should have taken the wife's contribution to the welfare of those children into account also, under that paragraph of s 75(2). This raises the question whether the fact that a party to a marriage contributes during that marriage to the welfare of his or her own children of a prior marriage is a fact or circumstance which the justice of the case requires to be taken into account in that party's favour, at least, in circumstances where the other party's contribution to that welfare has been taken into account as a fact or circumstance in that party's favour.
In considering whether the justice of a case requires some act done by a party to be taken into account under s 75(2)(o), the court should, we think, have regard primarily to the existence or otherwise of any legal obligations, as between the parties, in relation to the doing of that act, and also, perhaps, to ordinary notions of justice and equity between the parties.
In this case, the wife had a legal duty to maintain the children of her prior marriage, which duty had primacy over the duty of any other person, other than the children's father, to so maintain them: ss 66a and 66b of the Act. The husband, on the other hand, had no legal duty to maintain these children at any time during the marriage because, by s 66g, a step-parent has such a duty only if he or she is a guardian of the child, or has custody of the child by an order of a court, or a court having jurisdiction under Pt VII of the Act by order determines that it is proper for the step-parent to have that duty. None of those pre-conditions existed in this case.
Accordingly, in contributing to the support of these children the wife was merely honouring a legal obligation which she owed to the children, whilst the husband, in making his contribution, was acting essentially as a volunteer assisting the wife in the discharge of her legal obligations. Upon that basis, whilst we consider the justice of the case clearly required the husband's contribution to be taken into account under s 75(2)(o), the same cannot be said of the wife's contribution. In making that contribution the wife was in no way discharging or assisting to discharge any legal obligation of the husband.
Turning, then, to ordinary notions of justice and equity, we are of the view that such notions do not call for any allowance to be made in the wife's favour, in the property proceedings between the husband and wife, because she honoured her legal obligation to maintain her own children of a prior marriage. We believe that a failure to make such an allowance would not offend the ordinary reasonable man or woman's notions of justice.
In our view, therefore, his Honour did not err in failing to give any weight to the wife's contributions to the welfare of her own pre-marital children.
Thus the contributions to the wife’s daughter are not relevant to section 79(4)(c). The only relevant contributions made to the wife’s daughter are those of the husband and will be addressed under section 75(2)(o) later in these reasons.
Conclusion on Contribution
In summary, it is argued on behalf of the wife that the contributions were equal to December 2004 but that overall, they favour the wife in the proportions 55% by her and 45% by the husband. If not that then there should be found to be a substantial margin in favour of the wife. The argument on behalf of the husband is that the contributions were equal.
The wife relies on the fact that the husband had no paid employment from after November 2004 and that she largely supported the parties. She contends that the husband has diverted substantial sums to Thailand or in support of his life there. The parties provided substantial support to members of the wife’s family over the years. The wife had the main use of the C property and about $42,000 in gross rent was forgone at the instance of the wife by leaving the wife’s daughter and her family in the property, rent free.
The parties’ cohabitation spanned more than 25 years and contributions have been made since. It is difficult in those circumstances to make an adjustment for events over the last few years that is proportionate to the various contributions made throughout the balance of the marriage. In my view the parties’ contributions were equal.
The other matters in Section 79
Once contributions have been assessed, the other factors in section 79(4) need to be considered. They are:
Section 79(4) (d)
Pursuant to s 79(4)(d) I am required to take into account the effect of any proposed orders on the earning capacities of the husband and wife. There is no relevant effect.
Section 79(4)(e) - Section 75(2) Factors
The relevant matters in Section 75(2) would seem to be paragraphs (a), b), (d), (m) and (o).
(a) the age and state of health of each of the husband and wife;
The wife and husband are 60 and 55 years of age respectively.
There is no authoritative evidence about the health of the husband.
There is no authoritative evidence about the current health of the wife.
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
The wife’s income is $1,843 per week, made up of her salary of $1,668 as a Nurse,[18] currently working in Switzerland and $175 per week representing one half of the rent from W property in the State of New South Wales. In cross-examination the wife said she receives a net 5,300 Swiss francs a month or 1,340 Swiss francs per week. The wife says that her income in a regional town is less that she could earn in a major city. She intends to move to Zurich and would expect to earn a further 400-500 Swiss francs per week. In her affidavit filed 7 July 2010 the wife said that she intends to return permanently to Australia in the near future. She says that she wants to live in the C property. The wife currently lives in Switzerland and she lives alone. She benefits from $50.00 per week paid by her daughter and son in law for the rates and insurances on the C property.
[18] It is the wife’s evidence that her qualifications are as a Registered Nurse in the Australian context.
The wife’s expenditure is as follows:
| Expense | Amount | |
| Income tax | $167.00 | |
| Swiss pension contributions - AHV and sickness and injury cover | $235.00 | |
| Rent | $451.00 | |
| Other rates and unit levies | $32.00 | |
| Health Insurance | $73.00 | |
| Car insurance - Smile Direct | $10.00 | |
| Contents insurance - Smile Direct | $7.00 | |
| Motor vehicle registration | $2.00 | |
| Loan repayments | $225.00 | |
| Other expenses. | $317.00 | |
| Food | $100.00 | |
| House supplies | $50.00 | |
| Gas | $7.00 | |
| Electricity | $7.00 | |
| Telephone | $37.00 | |
| Petrol | $51.00 | |
| Parking and fares | $12.00 | |
| Clothing and shoes | $30.00 | |
| Hairdressing, toiletries | $23.00 | |
| Sub-total | $317.00 | |
| Total | $1519.00 | |
The wife has a surplus of income over outgoings and expects her income to increase with a move to Zurich. Evidence about the wife’s assets and liabilities is set out earlier in these reasons.
It is not suggested that the wife is not fully exercising her earning capacity.
The husband receives $437 per week in the form of net rental on W property in the sum of $137 and $300 in rent on the C property. He lives in Thailand with his wife who earns $100 per week.
The husband spends $576 per week made up as follows:
| Expense | Amount | |
| Swiss pension contributions - AHV | $21.00 | |
| Rent | $124.00 | |
| Life insurance premium – Westpac Bank | $6.00 | |
| Car insurance policy – Mittare Insurance Company | $9.00 | |
| Health Insurance - BUPA | $19.00 | |
| Car registration – Ford Aspire – Registration number: … | $8.00 | |
| Storage fees in Sydney | $34.00 | |
| Visa card payments – Westpac Bank | $25.00 | |
| Other expenses. | $330.00 | |
| Food | $120.00 | |
| House supplies | $8.00 | |
| Gas | $15.00 | |
| Electricity | $32.00 | |
| Telephone | $30.00 | |
| Petrol | $30.00 | |
| Car maintenance | $15.00 | |
| Fares and car parking | $5.00 | |
| Clothing and shoes | $10.00 | |
| Medical dental and optical | $3.00 | |
| Entertainment hobbies | $15.00 | |
| Holidays | $25.00 | |
| Chemist pharmaceuticals | $5.00 | |
| Repairs to furnishings and appliances | $12.00 | |
| Gifts | $3.00 | |
| Hairdressing, toiletries | $2.00 | |
| Sub-total | $330.00 | |
| Total | $576.00 | |
The husband has a shortfall of income over expenditure each week. As to his earning capacity, the husband expects to return to paid employment. He intends to return to live in Switzerland, with his new wife and albeit that he was not able to do so earlier, expects to secure a job in Switzerland. The husband’s capacity has not been exercised over recent years as he did not seek paid employment in Australia after his business venture did not take off. He moved to Thailand to be with Ms V and says he has not been permitted to take paid employment in Thailand.
The evidence about his assets and liabilities is addressed above.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
There are no children of the marriage. The wife’s daughter is over 18 years of age.
(d) commitments of each of the parties that are necessary to enable the party to support:
himself or herself; and
a child or another person that the party has a duty to maintain;
(e) the responsibilities of either party to support any other person;
I have set out the evidence in relation to the parties’ expenses.
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
any law of the Commonwealth, of a State or Territory or of another country; or
any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia, and the rate of any such pension, allowance or benefit being paid to either party;
The parties live outside Australia. Neither of them receives a pension, allowance or benefit in Thailand or Switzerland. The wife has a modest superannuation interest and each of the parties has an interest in the Swiss pension fund. There is no probative evidence about the value or import of the latter interests.
(g) where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
There is some evidence in relation to the standard of living of the parties during the marriage. The wife gives evidence about the parties living a very modest lifestyle during the marriage. She was cross-examined on this issue and although her evidence was unsatisfactory, she reported that the parties shopped for food and groceries at markets.
The husband gives evidence that he is in even more modest circumstances in Thailand compared to those described by the wife while the parties lived in Switzerland and Australia. He lived in rented premises, in a semi-rural area about 12 kilometres from the nearest town. The home has a small kitchen, one bathroom and three very small bedrooms. The home is situated on an unsealed road in a very dusty area. It is not connected to the sewer but has a pump out system. The electricity is unreliable and cuts out regularly. The home has no air conditioning and it being very hot and humid in Thailand, the husband says that at times, the living conditions are stifling. The husband incurs costs for car maintenance and petrol in having to drive in and out of town for supplies. These circumstances are probably not relevant to the case as the husband will receive a property settlement with which to improve his circumstances; living in Thailand was a matter of his choice and he and his wife intend to move to Switzerland.
As the history reveals, the parties have travelled extensively but much of it has been related to what might be broadly described as family commitments. There is reference to the husband taking one business class flight but he said that was achieved because of his membership of a Star Alliance frequent flyer program through Thai Airways.
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
There is no evidence of either party seeking further study or intending to set up in a new business.
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;
There is an issue about the quantum of a land tax obligation but no issue about the revenue authority being paid.
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
There is an application for maintenance but it cannot be said that either of the parties has contributed to the income or earning capacity of the other party.
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
There is no suggestion that the marriage adversely affected the wife’s earning capacity. There is an issue about the impact on the husband’s earning capacity from the decision to remain in Australia after the planned importing business fell through in about mid 2005. It is the husband’s evidence that in early to mid 2005 he had had expressed to the wife a desire to return to Switzerland and regain his old employment and the wife refused. In a similar vein the wife contends that the sale of the H unit was pressed upon her by the husband. In my view there is nothing in these arguments. There is no suggestion that the husband could not find paid employment in Australia from early to mid 2005. There is no evidence that he made any significant attempt to find employment. Marriage is most often a partnership of equals and albeit that various decisions are made or initiated to a greater or lesser extent by one partner to the marriage, that alone is not a basis for adjusting the parties subsequent property settlement. Scores of decisions are made during the course of a long marriage and it is not within the scope of the exercise of discretion under section 79 to revisit and evaluate those decisions.
In any event it is not part of the husband’s case that his current earning capacity has been adversely affected by the marriage.
(l) the need to protect a party who wishes to continue that party's role as a parent;
This is not relevant.
(m) if either party is cohabiting with another person — the financial circumstances relating to the cohabitation;
I have set out above what there is of that evidence. The husband’s evidence about the financial arrangements with his Thai wife is not entirely satisfactory. The thrust of it is:
·When they met, his wife was part owner of a rural property which was used for agriculture and supported her extended family;
·In circumstances that are not explained she is no longer a part owner of the property, nor does she have any beneficial interest in it;
·She is a Tailor by trade but does not work in that trade now;
·In circumstances where she does not speak German she has established a business selling products to an expatriate German speaking community, entirely without the husband’s help;
·She earns $100 a week from the business, all of which is sent to her mother who is caring for her children.
(n) the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
There is no child support.
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
Only the husband’s contributions to the wife’s daughter are relevant.[19] The husband contributed to the wife’s child by assisting the wife who had her primary care.
[19] In the Marriage of Robb (1994) above.
Care is needed not to double count contributions. I have already given the parties credit for their financial contributions by way of capital and income. Those contributions, such as the application of the husband’s income, cannot be counted again, save to record that in relation to the wife’s daughter, for the periods she lived with the parties, they were in effect contributions made for the sole benefit of the wife.
Matrimonial funds diverted from the purposes of the marriage
It is the wife’s case that the husband has failed to disclose how he applied the parties’ funds over the later years of the marriage and since separation. The evidence does not reveal any hidden funds but with the husband out of paid employment since November 2004, there is no doubt that the wife has subsidised the husband’s living expenses over those years. In part that subsidy was balanced by his non financial contributions.
By the same token, over many years the parties sent money to South Africa for the support of the wife’s daughter and of other members of the wife’s family. The parties’ evidence on this issue is expressed in different terms and cannot be readily reconciled. Neither party was cross-examined on the issue.
The husband says that upon their marriage the wife’s daughter lived with the parties in Switzerland for about a year and then she returned to live with a carer in South Africa. He then says[20]: while the wife’s daughter was with two carers in succession the parties sent about 150 – 200 Swiss francs a month to the carer and about 50 Swiss francs to the wife’s daughter for pocket money. At some point in time, the wife’s daughter went out of care and was living between the homes of relatives. The husband says that from that time she received (the parties paid) between 150 and 300 Swiss francs per month. The wife’s daughter also created an account with a shop, ran up a bill of between 2,000 and 3,000 Swiss francs and that bill was paid by the parties.
[20] Paragraph 9 of the husband’s affidavit sworn 12 November 2008.
The wife says[21] that from 1983 to 1987 the husband arranged for 74 Swiss francs ($A80) per month to go to the wife’s daughter. She says that from 1981 to 1999 they sent 133-145 Swiss francs ($A150) per month to the wife’s mother. It is not clear from her affidavit but the parties either sent that same amount or 90-95 Swiss francs ($A100) to the wife’s sisters, on about three occasions a year. Sadly, the wife’s mother died in 1999 and one of her sisters died in 1993. For a few years after 2000 the wife also sent money once a month to her eldest sister. She does not say how much was sent but says that in 2003 the husband reduced the payments to once every three months.
[21] Paragraph 100 of the wife’s affidavit sworn 1 September 2010.
In addition, the wife’s daughter had rent free accommodation in the C property for a substantial period.
Finally, the wife has applied matrimonial funds to her costs and the husband has paid very little towards his costs.
(p) the terms of any financial agreement that is binding on the parties.
There was no binding agreement made between the parties.
Section 79(4)(f)
There are no other relevant orders made under the Family Law Act 1975.
Section 79(4)(g)
There is no child support.
Conclusion
The wife seeks that there be no adjustment. The husband seeks an adjustment in his favour of 5%.
The relevant matters arising from the remaining elements of s 79, which include the s 75(2) factors referred to above are:
ØThe husband is 5 years younger than the wife and therefore the potential for more years than her, in the paid workforce;
ØThe husband has repartnered and his partner is in paid employment;
ØMatrimonial funds supported the husband in Thailand over recent years; and
ØMatrimonial funds were diverted to the purposes of the wife’s daughter and extended family during the marriage and to the wife’s legal costs.
In my view these elements call for countervailing adjustments and in the context of this case should result in no adjustment to the outcome warranted by virtue of contributions alone.
Just and Equitable
The order of a Superior Court stands unless and until it is set aside. The property settlement I have identified is in the same proportions as that identified in the decision by the learned Judicial Registrar from which this review lies. In the normal course, the appropriate order would be to dismiss the application for review. However, the review is by way of fresh hearing and the circumstances of the parties and the values of their assets and debts have changed since the original orders were made. For that reason fresh orders are needed.
The net assets have a value of $1,352,004 ($1,440,518 - $88,514).
If the assets are divided equally then each of the parties will retain about $676,002. As to the form of the orders, the wife seeks to retain the C property and the husband wants it sold. She should have the opportunity to retain that property. The W property will be sold.
Of the pool of assets identified by me, the wife has the benefit of and would like to retain:
Assets
Value
C property
$750,000
Wife’s Toyota Corolla
$5,000
Wife’s home contents
$5,000
Wife’s Renault motor vehicle
$4,000
Wife’s Westpac account
$15,523
Wife’s UBS account
$9,741
Wife’s First State Super
$11,000
Wife’s Swiss Life
$5,774
Wife’s Swiss income tax
-$2,770
Total
$803,268.00
In order to bring her to 50% of the net assets she would need to pay the husband about $127,266.
That would leave the husband with:
Assets
Value
Husband’s home contents
$500
Husband’s Co-op Bank Switzerland
$980
Husband’s Ford Aspire
$2,000
Husband’s A Credit Union account
$1,000
W property
$630,000
Capital gains tax – W (joint)
-$60,372
Land tax – W (joint)
-$25,372
Payment from the wife
$127,266
Total
$676,002.00
The orders I propose commit the wife to make a payment to the husband. I will provide for a sale of the C property in default of that payment and for a division of the net proceeds of sale in the proportions that reflect the ratio of the required adjustment to the agreed value of the property. In that way the parties will share in the costs of sale and the benefit or loss associated with any difference between the sale price and the agreed value. That is a division in favour of the husband in the proportion 127,266: 750,000 which I will round up to 17%, with the balance to go to the wife.
The orders fully expose the husband to the sale costs of the W property but also he would benefit from any greater net sum generated by the sale of that property and the value of that property agreed for the purposes of these proceedings.
An alternative to that form of orders, in the event that the wife is unable to pay the husband $127,266 would be to make orders for the sale of both properties and to divide the resultant net proceeds of both in a way that achieves the overall settlement required.
A further issue arises from the possibility that the parties are successful in having the land tax assessment reduced. In that event under the form of orders I propose, the husband will need to account to the wife for one half of any reduction in that assessment. I will give the parties the opportunity to be heard as to the form of the orders but subject to that, in my view those will orders represent a just and equitable settlement of the parties’ property.
Conclusion under Section 79
This was a marriage involving at least 25 years of cohabitation and very significant contributions by each of the parties. They acquired substantial assets and provided a secure life in two continents. The parties share the work of the marriage in different ways but overall their contributions were equal. No adjustment is justified by reference to the non-contribution aspects of Section 79(4).
The approach in proceedings for spousal maintenance
By his Amended Initiating Application filed 2 September 2010, the husband seeks:
3.That the Wife forthwith pay to the Husband the sum of $497.00 per week by way of spousal maintenance by direct credit to the Husband's nominated bank account.
The wife opposes that order.
Spouse maintenance is a remedy available between parties to a marriage, whether the marriage is on foot or not. Section 72 of the Family Law Act 1975 (Cth) says as follows:
(1)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)The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.
The first matter to be determined is whether the husband is unable to support himself adequately, by reference to the matters referred to in Section 75(2) which are set out above.
If the Court determines that he is unable to adequately maintain himself, having regard to those matters, then the wife has an obligation to maintain him to the extent that he is reasonably able to do so.
The husband’s capacity to adequately maintain himself
In considering whether a party is unable to support themselves, the Court is required to consider the income, earning capacity and financial resources of that party, and their reasonable expenses, having regard to the matters in section 75(2).
I am to be satisfied that any such inability arises for an adequate reason.
I refer to the findings in relation to section 75(2) set out earlier in these reasons, and in particular – paragraphs (a), (b), (d), (m) and (o). I will not repeat the findings made above save to note that:
· The husband declares a weekly shortfall of income over expenses of $139.00 ($576 - $437). The husband’s income comes from rent and depending on the timing of sales and payments, he will lose that source of income in the short to medium term;
· I have found above that the husband has unexercised earning capacity. As to the extent of that capacity, doing the best I can, it is of the order of the earning capacity of the wife. The parties earned at a similar rate when they both had paid employment. The husband intends to move back to Switzerland and to secure paid employment. There is no evidence about the scope for his wife to work in Switzerland but we know that she is capable of paid employment.
· Pursuant to the orders I will make, the husband will receive a payment of the order of $670,000 by way of property settlement. Those moneys will need to address his need for secure accommodation and other expenses, including legal fees. He will not receive all of that sum until the settlement of the sale of the W property but may receive a payment of about $127,000 in the short term.
· As to whether there is an adequate reason for the husband being unable to support himself – it is his case that:
ohe chose not to apply for paid employment in Australia from the time his attempt to establish a business here, failed, in 2005;
ohe chose to live in Thailand and that he is not permitted to have paid employment there because of the class of visa under which he is entitled to remain in Thailand;
osome time ago he made a number of unsuccessful applications for jobs in Switzerland;
ohe now intends to move to Switzerland and expects to obtain paid employment.
The husband has made a series of elections which he was quite entitled to make. He did not pursue paid employment in Australia. He did not persist in attempts at paid employment in Switzerland, where he now says work will be available for him. He chose to live in Thailand where he cannot obtain paid employment. The effect of that, however, is that although he cannot currently support himself adequately, he does not have a proper reason for that situation.
Even if I am wrong about that, the husband plans to move back to Switzerland and to take up paid employment there. He gives no evidence about the timing of such a move or about the basis for his confidence about securing a job.
Although it is not relevant, if the husband established a need for support with a proper reason, the wife would have some capacity to provide that support but it could not be indefinite. There would be a question of what level of support would be reasonable. The wife is 60 years of age and earns her income from a profession that usually makes substantial physical demands on those who practice it. There is not really an adequate explanation for the financial incidents of the husband’s second marriage.
Conclusion
The husband’s application comes late in the piece, filed as it was as a response to the wife’s application for review of a property settlement. In my view the husband cannot make a case that he is unable to properly provide for his own support for an adequate reason. Insofar as the husband’s application seeks spousal maintenance, it will be dismissed.
I certify that the preceding two hundred and sixty two (262) paragraphs are a true copy of the reasons for judgment of Justice Loughnan.
Associate:
Date: 1 October 2010
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