RUFINO & HABER
[2019] FCCA 2738
•31 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RUFINO & HABER | [2019] FCCA 2738 |
| Catchwords: FAMILY LAW – Property – short de facto relationship of 4 years – where parties brought in and expended significant amounts of money during the relationship – where the property pool is small – Held each party to receive 50% of the asset pool. |
| Legislation: Family Law Act 1975 (Cth), ss.90SF, 90SM, Pt VIIAB |
| Cases cited: Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143 |
| Applicant: | MR RUFINO |
| Respondent: | MS HABER |
| File Number: | BRC 678 of 2018 |
| Judgment of: | Judge L. Turner |
| Hearing date: | 8 May 2019 |
| Date of Last Submission: | 8 May 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 31 October 2019 |
REPRESENTATION
| The Applicant appeared in person |
| The Respondent appeared in person |
FINAL PROPERTY ORDERS
That forthwith the B Motor Vehicle in the respondent’s possession be listed for sale by the parties at a price of no less than $65,000.
That the parties do all such things and sign all such documents as are required to ensure the sale of the B Motor Vehicle.
That the parties share equally in all costs associated with the sale of the B Motor Vehicle such as advertising fees.
That in the event the B Motor Vehicle sells for $65,000 then the sale proceeds are to be divided as follows:
(a)$54,200 to the applicant.
(b)$10,800 to the respondent.
That in the event the B Motor Vehicle sells for more than $65,000 then the sale proceeds are to be divided as follows:
(a)$54,200 to the applicant.
(b)$10,800 to the respondent.
(c)One half of the remaining monies to the applicant.
(d)One half of the remaining monies to the respondent.
That in the event the B Motor Vehicle sells for less than $65,000 then the sale proceeds are to be divided so as to reflect a 50/50% division of the total asset pool.
That otherwise the respondent do all such things necessary and sign all such documents as are required for the applicant to have full ownership and retain in his possession the following:
(a)The D Motor Vehicle.
(b)The motorcycle.
(c)The tools.
(d)Bank accounts.
(e)Household and personal items.
(f)Any other property in the applicant’s possession.
That in order to give effect to these orders the respondent forthwith make available to the applicant the motorcycle and tools with the applicant to pay all costs associated in collecting and transporting these items to the applicant.
That the applicant indemnify and keep indemnified the respondent against any debts in the applicant’s name.
That otherwise the applicant do all such things necessary and sign all such documents as are required for the respondent to have full ownership and retain in her possession the following:
(a)The C Motor Vehicle.
(b)The household contents.
(c)The superannuation held by the respondent.
(d)Personal items.
(e)Any other property in the respondent’s possession.
That the respondent indemnify and keep indemnified the applicant against any debts in the respondent’s name.
Each party shall do all such things and sign all such papers and documents that are necessary to give effect to the orders provided that in the event a party unreasonably fails or refuses to sign pursuant to these orders, then a Registrar of the Court pursuant to section 106 (A) Family Law Act 1975 is authorised to sign any such document on behalf of the defaulting party.
IT IS NOTED that publication of this judgment under the pseudonym is Rufino & Haber approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 678 of 2018
| MR RUFINO |
Applicant
And
| MS HABER |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties, after a de facto relationship of some four years are in dispute as to the division of the de facto property pool.
Issue
The issue in dispute is how the de facto property pool is to be divided.
Evidence
In considering this issue regard has been had to:
a)The relevant material on the file.
b)Exhibits.
c)Oral submissions of the parties.
d)Part VIIAB Family Law Act 1975.
e)Relevant authorities.
The parties are self represented.
On the day the matter was listed for final hearing, it was clear from the material filed and tendered that there were gaping holes in the evidence.
The parties were given the following options:
a)The parties could work through what they want to try and resolve the issue.
b)The trial be adjourned to another date to enable further evidence to be before the court.
c)The court could attempt to determine the issue that day.
d)The trial proceed and if the parties did not want to cross-examine then a determination be made based on what was before the court.
The parties selected the fourth option as the parties did not want to engage in cross-examination and agreed for the determination of the matter to take place based on the material before the court.
Findings of fact are made on the balance of probabilities having regard to the evidence and in what follows statements of fact constitute findings of fact.
Relevant history
The relevant history is:
a)The applicant is aged 59, self-employed and is dependent on a Centrelink payment.
b)The respondent is aged 55, has worked previously as a labourer and is dependent on workers compensation.
c)In 2010 the respondent sustained a workplace injury.
d)In 2013 the parties commenced cohabitation in Melbourne.
e)In November 2017 the parties separated with the applicant moving to live in Queensland with his brother.
f)In January 2018 the applicant commenced property proceedings seeking orders for the B Motor Vehicle, motorcycle, tools and sport memorabilia to be returned to the applicant and otherwise each party retain what property is in their possession.
g)In March 2018 the respondent filed her response seeking orders for the respondent to retain the B Motor Vehicle and a payment of $40,000 from the applicant.
h)In May 2018 the respondent obtained an Intervention Order against the applicant which expired in May 2019.
i)In August 2018 the respondent filed an amended response seeking orders for the respondent to retain the B Motor Vehicle and payments totalling $105,000 from the applicant.
j)In September 2018 the parties attended a conciliation conference but were unsuccessful in reaching an agreement.
k)In May 2019 the matter proceeded to a final hearing.
Proposals
The applicant is seeking orders whereby he receive:
a)One half of the value of the B Motor Vehicle (B Motor Vehicle).
b)The motorcycle.
c)The tools.
d)All property in his possession including the D Motor Vehicle motor vehicle (D Motor Vehicle).
The respondent is seeking order whereby she receive:
a)$100,000.
b)The B Motor Vehicle.
c)Household contents.
d)$5,000 compensation for travelling costs.
e)All property in her possession including the C Motor Vehicle motor vehicle (C Motor Vehicle) and superannuation.
The law
In determining property matters consideration must be had to Part VIIIAB Family Law Act 1975 which sets out a clear framework to follow in determining a de facto property division.
The first question that must be asked as articulated by the High Court in Stanford v Stanford (2012) 293 ALR 70 at [79] and [80] is whether “it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.”
If answered in the affirmative, then the matter can proceed to a property division, applying the various principles.
Consideration must be given as to whether a global or asset by asset approach is to be adopted.
The four step process to be applied in accordance with the Full Court decision of Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143 at [39] which can be summarised as follows:-
a)Identify and value, as at the date of the hearing, the parties’ property, liability and financial resources;
b)Identify and assess the parties’ contributions pursuant to Section 90SM Family Law Act 1975;
c)Identify and assess the parties’ ongoing needs taking into account the relevant factors relevant under section 90SM and section 90SF; and
d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances of the case.
Application of the law
The question to be considered as set out in Stanford
I find that this is a matter where is it is just and equitable to determine the division of the de facto property pool as:
a)The parties were in a de facto relationship for four years.
b)There is a de facto property pool capable of division.
c)The parties are seeking a property division.
As the question posed by Stanford v Stanford is in the affirmative, I will now proceed through the four step process in order to determine the percentage division.
Global or asset by asset approach
I find that this a matter where a global approach is appropriate.
Application of the four step process in Hickey’s case
Property pool
I find that the de facto property pool available for distribution totals $144,600 consisting of the following:-
Non Superannuation Assets
$ Value
B Motor Vehicle
65,000
C Motor Vehicle
11,500
D Motor Vehicle
7,000
Motor Cycle
3,000
Tools
2,000
Household contents
10,000
Remainder of compensation payout
6,100
TOTAL NON SUPERANNUATION ASSETS
$104,600
Superannuation assets
$ Value
Superannuation
40,000
TOTAL SUPERANNUATION ASSETS
$40,000
TOTAL DE FACTO PROPERTY POOL
$144,600
In determining the de facto property pool the following findings have been made:
a)Motor vehicles. As the parties are in agreement as to the value of all the motor vehicles then the agreed figures have been included in the de facto property pool.
b)Motorcycle.
i)There has never been a formal valuation conducted on the motorcycle.
ii)The applicant in his supporting affidavit supporting his application puts a value of $3,000.
iii)The applicant now submits that the motorcycle is worth $4,000 to $5,000.
iv)The respondent states that it is worth $1,500 based on the figure advertised by the applicant when he put the motorcycle up for sale with Gumtree.
v)The applicant disputes this, stating that this was the figure offered to the respondent’s son when he expressed an interest in purchasing the motorcycle.
vi)I find that the sum of $3,000 is the appropriate value of the motorcycle as it is a figure consistent with the applicant’s estimate since proceedings began.
c)Tools.
i)There has never been a formal valuation conducted on the tools.
ii)The applicant in his supporting affidavit supporting his application puts a value of $3,000 on the tools.
iii)During submission the applicant revised the figure to $2,000.
iv)The respondent disagrees and places little value on the tools as “they are all sitting in the garage rusted”.
v)I find that as the tools were used by the applicant that his estimate is the best evidence available to the court and have included the tools in the de facto property pool at $2,000.
d)The F Boat.
i)In September 2015 the parties purchased in the applicant’s name an F boat for $30,000.
ii)In October 2015 the boat was transferred to the applicant’s brother Mr E and according to the applicant “I don't recall getting money off him” and Mr E paid for the mooring fees for the boat as “there was a bit of money owing, because the boat was moored there”.
iii)As these transaction occurred during the relationship and in the absence of any evidence as to the arrangements for the sale of the boat then the value of the boat cannot be included in the property pool.
e)G Boat.
i)During the relationship the parties acquired in the applicant’s name a G boat.
ii)The applicant in his July 2018 affidavit states that this boat never belonged to the applicant and was bought in the applicants name on behalf of his brother Mr H who now has ownership of the boat.
iii)The applicant provided evidence through the brother’s bank statements that the boat was purchased with monies provided by Mr H.
iv)Further the applicant produced a document executed prior to separation whereby the applicant relinquishes all interest in the boat to Mr H.
v)The boat therefore has not been included in the de facto property pool.
f)Compensation payout.
i)In 2016 the respondent received a compensation payout of $125,000 received as a result of her work injury in 2010.
ii)This amount was paid into the applicant’s ANZ account no ...92.
iii)The applicant said the money was used towards general living expenses and the respondent’s children.
iv)As at October 2017 the account had a closing balance of just under $6,100.
v)The sum of $6,100 has been included in the de facto property pool.
g)Bank accounts.
i)The parties did not have a joint bank account.
ii)All monies were deposited into the applicant’s bank accounts, with the number of bank accounts belonging to the applicant unclear.
iii)The evidence supports is that in addition to the ANZ account no ...92 the applicant held the following bank accounts:
· ANZ account no ...59 which as at February 2017 had a nil balance.
· ANZ account no ...46 which as at December 2017 has a closing balance of $10.34.
· ANZ account no ...84 which as at October 2017 had a closing balance of $269.
· CBA account no ...63 where details as to what was in the account as of 2017 are unknown.
iv)The applicant describes his current financial position as “broke”, having no money in his bank accounts.
v)The respondent expressed concern that the applicant still has money from the relationship and that it is being held in the brother’s bank account.
vi)However as there is no evidence to support this concern, then this cannot be factored into the property pool.
vii)The respondent had a Bank J account which as at June 2017 had a closing balance of $164.00.
viii)Currently the respondent has little money in her bank account.
ix)As there is no evidence as to any bank accounts of any substance as at the date of separation or as at the date of the final hearing then bank accounts have not been included in the de facto property pool.
h)Household contents.
i)There has never been a formal valuation conducted on the household contents.
ii)In his supporting affidavit to the initiating application the applicant estimated the household contents to be worth $25,000.
iii)The applicant submits that the household contents are worth a substantial amount of money as there was a full house and the items were new when the parties separated.
iv)The respondent in her March 2018 affidavit estimated the household contents value at $15,000.
v)As at the date of the final hearing the respondent now estimates that household contents are worth $5,000.
vi)I find that it is appropriate to adopt a mid-range figure of $10,000 for the value of the household contents based on the estimates provided by the respondent.
i)Superannuation.
i)The applicant states that he has no superannuation and in the absence of any evidence to the contrary, then no superannuation for the applicant is included in the de facto property pool.
ii)The parties agree that the respondent’s superannuation has a value of $40,000 and therefore this is the value reflected in the de facto property pool.
Conclusion on the de facto property pool
I find that the property pool available for distribution is $144,600.
Contributions
Initial contributions
The applicant in his supporting affidavit to his application states that at the commencement of the relationship he had:
a)$145,000 in savings from sale proceeds of a property.
b)A car worth $10,000.
In submissions however the applicant referred to having half a million dollars at the commencement of the relationship.
Neither position is supported by independent evidence.
The respondent believes the only property owned by the applicant at the time of cohabitation was the motor vehicle.
The respondent at the commencement of the relationship had superannuation of over $50,000.
I find that given the respondent’s initial contributions were higher than that of the applicants, then a small adjustment is to be made in favour of the respondent in respect to initial contributions.
Contributions during the relationship
In 2014 the respondent received a work cover payment of $16,000 and withdrew $10,000 from her superannuation fund, with these funds being placed into the applicant’s bank account.
The respondent acknowledges that shortly after cohabitation the applicant received $145,000 from sale proceeds.
In 2014/2015 the applicant received an inheritance of $240,000 which the applicant said was used on household expenses and buying cars and holidays for the respondent’s children.
The respondent further deposes to a television and laptop being purchased for her son from the inheritance proceeds.
In 2016 the respondent received a compensation payout for a workplace injury of $125,000 which was placed in the applicants account.
From the compensation money the parties purchased a car for the respondent for $12,000 and a hot rod for $30,000.
The respondent states in her March 2018 affidavit that “during the course of the relationship, Mr Rufino spent lavishly on some items….included a boat, a K Motor Vehicle, a L motorcycle, a Jet ski as well as going into business with his brother Mr H. Mr Rufino also spent a considerable amount for time and money gambling on the poker machines”.
During submissions the applicant admitted that the parties gambled.
The bank accounts record huge amounts of money being withdrawn on a regular basis with there being some large sums deposited, albeit far less than what was spent.
In 2016 the respondent won the B Motor Vehicle at a car show which was registered in the applicant’s name as the respondent did not have a licence.
I find that the evidence supports that a small adjustment is to be made in favour of the applicant as the financial contributions of the applicant were higher than that provided by the respondent.
Post separation contributions
After separation the applicant moved to Queensland leaving the B Motor Vehicle, the motorcycle, tools and household goods with the respondent.
After separation the respondent withdrew some $8,000 from her superannuation fund to assist in day today living expenses.
I find that there is nothing in the post separation contributions that warrant an adjustment being made in favour of either party.
Conclusion on contributions
Overall I find that after taking into account the contributions that the division of the de facto property pool is 50% to the applicant and 50% to the respondent.
Future needs
The applicant is in poor health having suffered a serious medical episode in 2017.
The respondent has also had health issues in the past with the respondent continuing to be in receipt of workers compensation payments.
Both parties are of similar age and dependent on government payments.
Both parties have the ability to obtain some form of employment but such employment will be low paying.
Conclusion as to future needs
I find that there is nothing in the future needs that warrant an adjustment being made in favour of either party.
The division of the property pool therefore remains at 50% to each party.
Just and equitable
The respondent believes that the applicant has hidden assets and money from the relationship and for this reason she should retain whatever she has in her possession and receive a payment of money in excess of $100,000.
During the final hearing I also conveyed some concerns as the applicant’s behaviour in his actions in dealing with property and monies seemed suspicious.
However upon reviewing all of the evidence before the court there is nothing to support that the applicant has secreted or wasted assets.
The applicant explained “We just went crazy, spending money. We lived a good life… she lived a good life with me”.
The evidence available supports the parties lived an expensive existence in the short time they were together and without the assistance of full disclosure, paper-trails and a forensic assessment of the finances I am only able to make one finding; namely that both parties participated in the dwindling away of the asset pool.
Therefore I find that a 50/50 division is a just and equitable division of the property pool.
Therefore a division of 50% of the de facto property pool in favour of applicant results in the applicant receiving assets totalling $72,300 ($144,600 x 50% = $72,300) that consisting of the following:-
D Motor Vehicle
$7,000
Motor Cycle
$3,000
Tools
$2,000
Remainder of compensation payout
$6,100
Proceeds from the sale of the B Motor Vehicle
$54,200
50% share to applicant
$72,300
A division of 50% of the de facto property pool in favour of respondent results in the respondent receiving $72,300 ($144,600 x 50% = $72,300) that consisting of the following:-
C Motor Vehicle
$11,500
Household contents
$10,000
Superannuation
$40,000
Proceeds from the sale of the B Motor Vehicle
$10,800
50% share to the respondent
$72,300
In the event that the B Motor Vehicle sells for more than the agreed value than anything received above $65,000 is to be divided equally between the parties.
In the event the B Motor Vehicle sells for less than $65,000 then the sale proceeds are to be divided so as to reflect a 50/50% division of the total asset pool.
Otherwise the parties are to retain whatever property and debts are in their possession.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge L. Turner
Date: 31 October 2019
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Remedies
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Fiduciary Duty
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