SAELI & CHANTHARA

[2020] FCCA 3280

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAELI & CHANTHARA [2020] FCCA 3280

Catchwords:
FAMILY LAW – Property dispute – parties in relationship form at least 1995 until 2016 – husband leaving Australia for months in 2012 and matrimonial home transferred to the wife – wife paying the mortgage ever since – husband and wife resuming joint financial enterprises 2013-2016 – husbands café business disastrously unsuccessful – wife’s contribution overall substantially greater – 20% adjustment in favour of the wife in respect of contribution – wife having greater earning capacity but also life-long care of autistic son – further 7% adjustment in respect of future needs – each party to retain superannuation.

Legislation:

Family Law Act 1975 (Cth), ss.66L, 66R, 75

Cases cited:

Collins [1993] FLC 92-343

Stanford v Stanford [2012] HCA 52

Applicant: MR SAELI

Respondent: MS CHANTHARA

File Number: MLC 902 of 2019

Judgment of: Judge Burchardt

Hearing date: 6 November 2020

Date of Last Submission: 6 November 2020

Delivered at: Dandenong

Delivered on: 4 December 2020

REPRESENTATION

Counsel for the Applicant: Ms Teicher

Solicitors for the Applicant: Mirabellas Solicitors

Counsel for the Respondent: Mr Hall

Solicitors for the Respondent: M K Steele and Giammario

ORDERS

1. Within 60 days the wife pay the husband $106,522.

2. That in the event that the whole of the payment has not been made by the date, the real property situated at and known as A Street Suburb B VIC, (“the property”) be forthwith sold altogether out of Court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:

   (a)first to pay all costs, commissions and expenses of (the said trust transfer and) the sale.

   (b)secondly to discharge the mortgage and any other encumbrance affecting the property.

   (c)thirdly so much of the payment as is then outstanding together with interest thereon at the rate prescribed by the Family Law Rules per adjusted monthly from the date to the Husband.

   (d)Fourthly, $53,000 to the wife to be applied to the repayment of the loan to her brother

   (e)fifthly the balance then remaining be divided in the proportion of

   (i)23 per centum thereof to the Husband; and

   (ii)77 per centum thereof to the Wife.

3. That pending the payment or completion of the sale:

   (a)The Wife have the sole right to occupy the real property and during such right of occupation the Wife pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due.

   (b)The parties hold their respective interests in the real property upon trust pursuant to these orders; and

   (c)Neither party encumber the real property without the consent in writing of the other party.

4. That, unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money due under these or any subsequent Orders;

   (a)The Applicant and Respondent each be declared to be the sole legal and beneficial owner of all other items of property presently in the possession, custody or control of each of them respectively including, but not limited to:

   (i)money, motor vehicles, furniture, furnishings, appliances, jewellery, equities, choses-in-action and personal effects;

   (b)Each party hereby forgoes any claim they may have to any Superannuation benefits belonging to or earned by the other;

   (c)All insurance policies to become the sole property of the owner named thereon;

   (d)Monies standing to the credit of either party in any bank account are to become the property of that party;

   (e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and

   (f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 902 of 2019

MR SAELI

Applicant

And

MS CHANTHARA

Respondent

REASONS FOR JUDGMENT

1. This is a property dispute between two persons who were married for about 12 years.  The pool relevantly consists of the former matrimonial home and its related mortgage, a loan asserted by the wife from her brother of $53,500 and superannuation.  The husband (the parties are divorced but the terminology is still convenient) seeks an equalisation of superannuation and a division of the net property pool 60/40 in favour of the wife who it is accepted will have ongoing care of the parties’ autistic adult son Mr A Saeli, born 1998.  The respondent wife has formulated her position in various alternate ways but in substance what she seeks is that she pay the husband $50,000 and retain the rest of the pool, including her superannuation.

2. For the reasons that follow I think the positions of both parties are overstated.  There will be a division of the property pool excluding superannuation of 77 per cent in favour of the wife and 23 per cent to the husband.

Agreed or Uncontested Relevant Matters

1. The husband, who is of Thai ethnicity, was born 1962.  He works in the hospitality industry earning $48,000 per annum.  The wife was born 1962.  Her earnings were the matter of some disagreement.  The parties married 1994, and it is perhaps surprising that the husband not only got the wife’s date of birth wrong in his first affidavit but also the date of the marriage.  The parties met in October 1993.

2. Although the wife had been to Australia previously, the parties migrated together to Australia in February 1995 and their first son Mr B Saeli was born 1996.  Mr A Saeli, as earlier indicated, followed 1998.

3. Thereafter the parties bought and sold a number of properties, by no means always profitably.  Importantly, for these purposes they bought the former matrimonial home in 1998.  In 2012 the husband went overseas for some months and at about that time it was agreed that the matrimonial home be transferred into the wife’s name solely.  That remains the case.

4. The wife obtained a redundancy payment of $60,000 in 2013 which it appears she applied to general household expenses (her affidavit assertions to this effect were not challenged).  In April 2013 the parties bought a business known as Company C for $75,000 which was unprofitable and ceased to operate in 2016 with substantial debts.

5. The parties separated finally in October 2016 when the husband, once again, left Australia for a period of time.  The wife has deposed to taking out an interest free loan from her brother to help her meet the associated debts that were then consolidated in the sum of $70,000 of which it is said that 53,500 is still owing.  Although it took some time to do so, the wife was ultimately able to refinance her debts into the mortgage on the matrimonial home which presently amounts to $333,359.  Despite some earlier controversy, it appears that it is now accepted that the matrimonial home has a value of $850,000.

6. It should be noted that there has been a certain amount of disputation about the health of Mr A Saeli.  His treating paediatrician, Dr D, has filed an affidavit and he was not required for cross-examination.  I note that Mr A Saeli has been described in 2015 as having an intellectual disability and moderate to severe autism.  More recently he was assessed at a severity of Level 2 and requiring substantial support.

The Parties’ Affidavits

1. I do not propose to traverse the parties’ affidavits in detail.  What is relevant within them is essentially denoted in the matters set out above.  I note that the wife’s first affidavit filed 20 March 2019 corrected her date of birth and the date of the marriage.  It also detailed the history whereby the parties rolled their then extant superannuation into a self‑managed superannuation fund in December 2012.  All of that was later split up. 

2. I note that the wife’s superannuation in her financial statement dated 19 October 2009 with AssetLink is $112,159 and I note that the wife has deposed in her affidavit of the same date as to the family assistance provided to the parties for substantial periods of the relationship by her own relatives.  She also deposed that the husband had resisted the sale of Compnay C, asking an unrealistic price.  I note that in December 2017 her thyroid gland was removed and the uncertain sequelae to that medical condition.  I note that she has also deposed commencing work for the Department of Health and Human Services in January 2018 and that Mr B Saeli moved out of the matrimonial home in May 2018.  The wife has also deposed to an application made by Mr B Saeli to VCAT for parental responsibility for Mr A Saeli, but it appears – this is a matter that I may return to when I deal with the evidence – that in substance that has transmogrified over time into applications that Mr A Saeli spend regular time with his brother and father. 

3. I note that Mr B Saeli filed an affidavit on 22 October 2020 which is generally supportive of the father.  I further note that in his last affidavit filed 22 October 2020 the father deposed to going overseas in October 2017 and travelling for seven months visiting family members.  His most recent financial statement filed also on 22 October 2020 denotes an estimate of superannuation of $55,900.

4. It should be noted in passing that the wife’s application for adult child maintenance in the sum of $350 has now been changed to an application for a $50,000 lump sum, to be subtracted from the $100,000 she proposes to pay to the husband, leaving the total of $50,000.

The Submissions Made and Evidence Given at Court

1. What follows is taken from my notes.

2. Counsel for the husband opened her case and described the pool as consisting of the matrimonial home worth $850,000 with a mortgage of $333,359 and the disputed loan to the brother in the outstanding amount of $53,500.  The wife has superannuation of $112,159 and the husband $57,522 as at 30 June 2020.  The husband seeks a 60/40 division in favour of the wife owing to her care of the child which includes adult child maintenance.  The husband seeks an equalisation of superannuation.  His income is less than that of the wife.  In 2018 to 2019 the wife earned $83,239 whereas the husband was slightly over $40,000.  The child lives with the wife and the husband says he has only restricted time.  VCAT proceedings launched by Mr B Saeli are not concluded.  Mr A Saeli spends time with his father on his iPad.

3. The husband was called and adopted his affidavits and his financial statement as true and correct.  He works in the hospitality industry.

4. It was put to the husband in cross-examination that the debts of Compnay C were $80,000.  He said they were at least $70,000.  He agreed that the wife dealt with the debts of Compnay C and the debts attaching to the then owned properties.  It was put that the wife borrowed $70,000 from her brother and that documents had been provided, with a payment of $70,000 in August 2016.  The husband said he had no recollection.  He had seen a bank letter about $70,000.  He conceded the wife made regular $500 payments to her brother.  He conceded that a table produced showed $16,500 paid off between September 2016 and May 2019 and the husband accepted the total still owed was $53,500.  He had seen a letter from the brother dated 10 August 2020 saying that $54,000 was still owing, but, if I understood the matter, he ultimately accepted that this was a loan, not a gift, and that the sum of $53,500 remained payable.

5. The husband conceded that the wife’s mother had lived with them between 2000 and 2001.  He conceded that this enabled the wife to return to the workforce.  He conceded that the maternal grandmother lived with them from 2007 to 2017.  She went to another brother in Sydney in 2012 but then returned to Melbourne.  He conceded that a cousin, known as Aunt E, provided care also and lived with the family from 2001 to 2007.  He conceded this enabled the wife to work.  She just helped them to look after the children.

6. The husband agreed that in 2012 he transferred properties to the wife.  They were both mortgaged.  He went overseas for a while, about three months, but was back in December 2012.  He accepted that the wife refinanced ANZ loans on the Suburb B and Suburb F properties from joint names into her sole name with debts of $243,000 owed on Suburb B and about $375,000 on Suburb F.  He did not know the values at the time and could not remember the shortfall when the Suburb F property was sold.  He did not know that the matrimonial home was worth $480,000 on 30 June 2012.  He had not seen a rates notice.  He accepted that the rates notice for the Suburb F property was $292,000. 

7. In 2012 he went to visit his family and spent time overseas.  It was put to him that he had not said any specific return time to the wife and the husband said he had to come back to work.  It was put that the wife did not know if he was going to return.  He said he did not know.  He had not told her he was not coming back.  He transferred the properties into her name.  She was doing administrative work.  It was easier for her to manage and he trusted her.  She was not taking responsibility for the debts.  He was still taking half responsibility.  She was the sole earner.  He was still paying.  He came back to work.

8. He was asked about a joint account number …34 with the ANZ but said he did not know.  He made no payments into the joint account after 2012. 

9. He agreed that Compnay C was bought for $75,000, all borrowed.  He accepted the wife had the redundancy payment of $65,000.  He has accepted that some of this was spent propping up Compnay C.  It went into her account.  The business was closed with an $85,000 loss.

10. He agreed that he went overseas for seven months.  He understood she had refinanced and paid off the bank.  She was more into doing administrative work.  He went overseas to look for work but could not find any so he was unable to pay towards the debt.  He accepted that his income in the 2012 tax year was $18,000 and zero in 2014 and 2015.  He did not earn money.  The business was not going good.  He could not even have a salary.  He had not contributed from 2016 onwards. 

11. He denied that he acted on the basis that the wife was solely responsible for their debt from 2012 and denied that he had failed to contribute in respect of the children.  He said he is still paying.  He said every money he got he was still paying.  Every money he got he put into the joint account.  After 2016 he did not earn any money.  He tried to find work overseas but did not get any.  He agreed that his income was $10,000 in 2016, $35,000 in 2018, $49,000 in 2019, and $50,000 in 2020.

12. The husband accepted that Mr A Saeli had always lived with the mother and that Mr A Saeli had only spent one night with him since separation.  He offered Mr A Saeli to stay with him.  After he was back from overseas he still loved after his son as normal.  He finished work at 12 and was back home by 1 pm.  He prepared food as normal.  After he started Compnay C he was more flexible.  He looked after Mr A Saeli every day.  He closed Compnay C at 2.30 pm and brought Mr A Saeli home.  Then he went back to Compnay C, by which time the wife was home.  He disagreed that the mother had been responsible for Mr A Saeli’s financial needs since 2012.  He took responsibility with his sons.  Every morning he sent the son to school.  He could not continue to support Mr A Saeli financially after 2016 as he did not have money.  He was not able to offer money at the moment.  He was working full time.  He makes $25 an hour before tax and works 38 hours a week.  He earns $950 a week.  He agreed that Mr A Saeli was at (omitted) for three short days a week, being the morning till 3 pm. 

13. It was put that Mr A Saeli required supervision.  The husband said that Mr A Saeli can live by himself at home.  He can eat food.  He does not need anyone to be with him unless he is going out.  He can dress himself and can reheat food.  He said that he could look after Mr A Saeli as well as the mother can.  He did not know whether the mother’s 30 hours per week was the maximum she could do.  He agreed that Mr A Saeli had always lived in the matrimonial home.  He did not accept however that Mr A Saeli does not adjust well to changes.

14. The husband confirmed that he gets paid fortnightly and receives $1600 per fortnight net.  When he was asked about the sum of $40 denoted for holidays in his financial statement he said this was for a holiday in Australia.  He agreed that his 2013 passport showed lots of overseas travel.  There has been three trips since 2013, which, as I understood it, arose because of the death of his brother and mother.  He has a sister in Country G who paid for him to visit her.  About three months before Compnay C closed he got work as a driver and he kept that money as he had to go overseas to see his family.

15. He was asked about $150,000 earlier indicated as being superannuation on his part in Superannuation H.  He said he never had this.  He remembers $50,000.  He has not withdrawn money from superannuation.  He did put funds into the self-managed funds but withdrew that to buy Suburb F.  He agreed he had a surplus $190 per week of income over expenditure.

16. In re-examination the father confirmed that he is earning at the moment and wants to look after Mr A Saeli at weekends.  He can support the expenses for Mr A Saeli.  His last holiday in Australia was about three months ago.

The Opening and Evidence of the Wife

1. Counsel indicated that the husband had paid about $11,000 in legal fees over the last two years.  The wife had legal costs of $38,000.

2. The wife was called and adopted her trial affidavit and recent financial statement as true and correct.

3. Under cross-examination the wife confirmed that there was some double‑counting in relation to the heating cost disclosed in her financial statement.  When questioned about how she gets to work she sometimes travels by public transport but generally travels by car.  The car is to her place of work or training or places she has to go.  Often parking is provided but sometimes not.  She pays once or twice a month.  $15 a week is fair.  She brings her son to medical appointments.

4. She was cross-examined about the $150 for entertainment and hobbies.  This is when she brings her son out.  They eat outside once or twice a week and she has all the receipts.  Her budget for $80 a week for holidays is for travel within Australia and overseas.  It is once a year at the most.  She said her most recent was a holiday to Country I for a reunion with her siblings.  She has receipts for the chemist and pharmaceuticals.  She has a gardener for mowing who comes once a month and costs at least $100.  He mows the front and back yards.

5. It was put that the fees for (omitted) and health matters were covered by the NDIS.  The mother confirmed this was so but there are out of pocket which covers transport and community fees when Mr A Saeli attends sports.  She is paying $500 a month at least when he is going five days a week and on Saturdays.  The NDIS only pays for the transport of the carers.  The wife was cross-examined about the level of funding supports for December 2019 till December 2020 in the sum of $100,000.  She readily accepted that this was the funding.  She receives $135 per fortnight as a carer.

6. It was put that she was assisted by her brother.  She said he expects to be repaid but is not seeking interest.  He needs it repaid because he is paying a mortgage and has a family to support. 

7. It was put that the father was not being permitted time with Mr A Saeli.  The wife said that was what he was saying.  She had no problem with time.  She always tell him she wants Mr A Saeli safe.  When he came back in 2017 he did not ask for regular time.  He had told her, “As long as you look after him I won’t bother you”.  She confirmed that the $10,426 disclosed at item 56 in her financial statement is held for Mr A Saeli.  She confirmed that she earned $73,000 in the 2019 to 2020 year and $83,249 in 2018 to 2019.  The first year was a transition for her office and she worked for Employer J.  It was privatised.  She was given an incentive to move to private.  They gave her $7,500.  She also had family help and could get some additional hours.

1. I interpolate and say it is clear from the obviously truthful evidence the wife gave that she will continue to earn at least $73,000.

2. The wife confirmed that Mr A Saeli has respite funding but it is given in kind.  It is one overnight per week and has been suspended during the COVID emergency.  She has now no respite.  She is using her friend to help her look after Mr A Saeli.  She had invited the father to an NDIS meeting for him to be familiarised with the NDIS.  The father thinks that she gets lots of money from the NDIS.  He had given no concrete commitment to spend time with Mr A Saeli.

3. It was put that the VCAT application was made because he wants to spend time.  The wife said that FaceTime more likely is five to 10 minutes and the most is 20 minutes two times per week.  Mr A Saeli does not want to live with his father but just wants to see him.  She wants Mr A Saeli safe.  She had reminded the father in the video at VCAT of incidents in the past.  She does not put limitation on the time between Mr A Saeli and his father.  The father returns him earlier than they agreed.  She was still at work.

4. It was put that she thought that the lack of success of Compnay C business was the husband’s fault between 2012 and 2016.  The wife agreed with this.  He had made decisions and he should be responsible.  She was not in charge of their finances.  In every project they signed she asked him if he understood.  He had an equal understanding of what they were getting into.  She can use the computer.  The husband refuses to be accountable.  She did the bookkeeping.  After 12 months she was insisting to sell the business.  They sought financial counselling and agreed to sell.  The problem was his price which put off some of the buyers.  She regretted she could not be in the business.  She had a job.  She had to work to pay the mortgages.  He was running the business.  She also assisted the business. 

5. She was taking care of her mother and the husband was asking if he could go overseas.  She said, “How can I manage the kids, the mortgage and the bills?”  He said he did not know if he was coming back nor when.  His brothers died before 2012.  His mother died in late 2017.  All he wanted was for her to sell the house.  He said he wanted to get out of this country.  She wanted him to get a job in Australia.  He insisted he was going away with no promise of coming back.

The Material Tendered to the Court

1. Exhibit R1 are rates notices from the Shire Council K.  They show a capital improved value for the matrimonial home of $480,000 as at 13 August 2012 and a capital improved value for the Suburb F property of $292,000 as at September 2012.

2. Exhibit R2 shows the husband’s tax returns for 2017 to 2018 and 2018 to 2019 and 2019 to 2020 which are consistent with the figures earlier described.

3. Exhibit R3 are extracts from the husband’s passport showing multiple overseas journeys.

4. Exhibit R4 are calculations of the costs of children provided by the Child Support Agency.

5. Exhibit R5 is a historical title record for the former matrimonial home. 

6. Exhibit R6 is a trust account statement for the husband in respect of his legal fees of which $11,215 had been paid.

7. Exhibit R7 is the husband’s current pay records, consistent with his evidence.

8. Exhibit A1 is the NDIS plan approved for Mr A Saeli on 5 December 2019.  Consistently with such plans more generally, it shows significant financial support to Mr A Saeli but none of this provides any cash for the wife.

Final Submissions by Counsel for the Wife

1. Counsel submitted that the relationship commenced in the mid-1990s and that until 2000 the parties’ contributions were equal.  From 2000 onwards through till separation the wife’s family through one person or another provided considerable assistance until 2017.  There was the assistance of Aunt E from 2001 to 2007 and also that of the maternal grandmother, which helped the wife to work.  From 2007 until 2012 the grandmother lived with the parties.

2. From August until October 2012 final separation came to pass.  After separation the husband made no contributions.  2012 showed the parties’ perception of their roles.  It was agreed to transfer the properties to the wife and they acted as though their financial ties were severed thereafter.  He went overseas and then came back.  There was then Compnay C.  Responsibility for the children went to the wife.  The rates notices give the values at transfer.  In 2012 the matrimonial home was valued at $480,000.  The Suburb F property was sold in 2015 with a loss of $102,000.

3. Exhibit R4 showed the costs of children over 13.  Mr B Saeli was 18 in 2014.  A settlement based on 2012 values was just and equitable.  The wife had raised the children on her own.  The child support figures gave an equal value to the $120,000 net equity following the separation in 2012.  The husband has spent $11,000 in legals in the last two years and can pay adult child maintenance of $100 per week and still have a surplus of $150.  Counsel referred to authority of Collins [1993] FLC 92-343 in support of the proposition that there should be a lump sum payment in respect of child support.

4. It is important to work out the capacity to pay child support first but then a lump sum can be ordered.  The husband has no equitable interest in the property.  He has to convince the Court that an adjustment is appropriate.  The contributions up till 2016 favoured the wife.  There was the wife’s family’s assistance and the husband’s absence.  Copmany C failed and he had made no financial contributions since 2012.  The contributions were weighted at least 10 per cent in favour of the wife until separation and five to 10 per cent thereafter.

5. In respect of the 75(2) matters it was submitted that the report of Dr D was clear. The wife is the carer of the child and this will be lifelong. This was worth another 10 to 20 per cent in favour of the wife. There should be a net payment of $100,000 to the husband, less $50,000 child support. An amount needed to be earmarked in respect to child support pursuant to section 66R of the Act.

Final Submissions on Behalf of the Husband

1. Counsel submitted there was no financial separation in 2012.  The wife has deposed to the self-managed super fund being set up in January 2013 and a trustee company was also set up.  Counsel referred to paragraphs 36 to 43 of the wife’s trial affidavit in this regard.  The husband ran the business for the parties but was not successful.  This did give him flexibility in his working life and he was able to take Mr A Saeli to school and collect him.  The wife’s family had lived with them but they had paid no board or rent.  The husband’s application was modest.  He sought a 60/40 split.  This takes account of the father’s future position with Mr A Saeli.  He has no capacity to pay child support.  That the wife should retain her superannuation of $120,000 plus the home is not just and equitable.  Neither party had much income.  The wife has her superannuation but the husband has only $57,000 in superannuation. 

2. Counsel referred the Court to section 66L of the Family Law Act 1975 (Cth) (“Act”). Although a disability is agreed, adult child support must be necessary. The husband has no capacity to pay.

Very Brief Remarks about the Witnesses

1. It should be noted that a number of the matters the parties were giving evidence about go back a long way.  2012 even is well outside the standard limitation period.  I formed the very clear impression that both these witnesses were honest and doing their best to recall events that, as I indicate, in some instances were a long time ago.  The wife, I have already observed, was palpably honest and direct in her answers, but the husband generally was also.  She struck me as the better historian and appeared to have a clearer and more precise memory of most of the matters than the husband did.

Findings about the Facts

1. In truth, there is little dispute in this case.  The parties met in 1993 and married in 1994.  They came to Australia in 1995 at which time they possessed nothing of any value. 

2. Despite the relatively early on in the piece parenthood that came their way, both of the parties were able to continue work because of the assistance of the wife’s family.  Having said this, however, it seems clear that these family members did not contribute in terms of board or rent.  This, therefore, does not perhaps lead to the major adjustments in the wife’s favour for which she contends.  It is a matter to be borne in mind in the balancing of the parties’ contributions.

3. By 2008 the parties had built the matrimonial home and by 2012 their investments meant that they had an equity, as I accept, overall, including the matrimonial home, of approximately $120,000.  They decided to transfer the properties into the wife’s name.  Thereafter she has always paid the mortgage, although the extent of the husband’s contributions will require assessment.  I accept that the husband went overseas for some months and it would seem reasonably clear that he was uncertain as to whether he would return or not.

4. Nonetheless, the assertion that the parties came to a final financial separation in 2013 is not borne out, if only because of the wife’s evidence.  They set up a comingled self-managed superannuation fund at about the same time and put their then extant superannuation into it.  For all the uncertainties, the husband did return and the parties resumed cohabitation.  They started a business together and the wife undoubtedly propped this up at the very least with part of her $60,000 redundancy payment.  I accept that the husband’s work became somewhat more flexible and he may have been able to do somewhat more with Mr A Saeli during this period, although it seems clear beyond doubt that the wife was always the primary carer for both of the children.

5. Endeavours by the wife through counsel to abstract some sort of lineal dollar for dollar assessment of the wife’s financial contribution in respect of the children is, in my view, misconceived.  It is, of course, clear that the husband’s business was unsuccessful from the start and he must have been contributing very little in financial terms in the years 2013 to 2016.  Even at this stage the wife’s family was still providing some measure of assistance. 

6. I also accept the wife’s evidence that the husband’s insistence on a high asking price for the sale put buyers off, but given that the business was unable to be sold at any price it is not clear just how damaging an effect this might have had.

7. The husband then finally left and went overseas for some seven or so months in late 2016.  He says he was looking for work overseas and I am inclined to accept the wife’s assertion that it was in absolutely no way clear whether he would return at all.  Although he did return and has been able to obtain remunerative employment thereafter, it is clear that from 2016 onwards the wife’s contributions in particular for Mr A Saeli have been far, far greater than those of the husband.  The husband has only had Mr A Saeli to stay overnight once and has seen him very little, although I accept he is endeavouring to see him more.  That is what the VCAT proceeding is about.  Although the wife professed little concern about the husband seeing Mr A Saeli her position seems to me to be more nuanced.  That is not because she is resisting in VCAT, which is entirely understandable, but the impression I got from her evidence is that she is not one particularly to foment the relationship between Mr A Saeli and his father.

8. Against this narrative I come to the Court’s first task as described by the Full Court in Stanford v Stanford [2012] HCA 52 (“Stanford”).

Stanford v Stanford [2012] HCA 52

1. The Court’s first task is to ascertain the legal and equitable interests of the parties and determine whether a property settlement is just and equitable.  In this instance legal ownership of the matrimonial home reposes entirely in the wife.  The loan to her brother, which is an accepted part of the pool given the evidence given, is $53,500.  The mortgage is some $333,000.  There is nothing else apart from the parties’ superannuation.

2. There is, of course, also to be considered the wife’s application for capitalised adult child maintenance.  This is, of course, not part of the parties’ legal or equitable interest, but it does operate on the matter more generally as it is both pressed and resisted in the proceeding.

3. Notwithstanding these matters, it is implicit even in the wife’s case that there should be a property adjustment.  Despite suggesting that there is no legal or equitable interest in the matrimonial home in the husband she seeks a property adjustment in his favour of some $100,000, offset by $50,000 for child support.  It is plainly appropriate in these circumstances that there be a property adjustment.

The Pool

1. As indicated, the pool consists of the matrimonial home with a value of $850,000, together with a mortgage of $333,359. 

2. There is also a loan to the brother of $53,500 that requires to be repaid.

3. A personal loan referred to in the financial statement of the wife has received no attention in this proceeding and I presume it to be, therefore, a post separation liability.  There is nothing else of any moment.

Contributions

1. It is perhaps implicit in the way I have proceeded that I am not minded to adopt the methodology for which the wife contended in final submissions.  I was handed a document described as calculation of equity at mid-2012 showing the asserted equity overall of $120,000.  It was implicit in the wife’s submissions that the Court should, as it were, approach the whole question of contribution in a discrete way, with 2012 as a marker or at the very least 2016.

2. To the extent that I correctly understand the submission, I would reject it.  I accept that the transfer of the properties to the wife in 2012 reflected the, at the very least, very uncertain nature of the husband’s future commitment to the relationship at that time.  The fact is, however, that he did return and then parties thereafter acted as a family unit.  They set up the self‑managed superannuation fund and the like.  They also clearly invested in Compnay C business as a joint venture.  The wife was clear that all their business dealings were understood by both of them.  She propped that business up with her redundancy payment.

3. In considering the parties’ contributions I bear in mind that the husband was absent for quite an extensive period of time in 2012 to 2013, but I do not regard this as giving rise to two separate periods for calibration.

4. It is put by the wife that there should be a 10 per cent assessment in favour of the wife until separation and a further 5 to 10 per cent thereafter.  The husband’s submissions did not really calibrate the matter in terms.

5. In a case like this one with its various fumbles and interruptions, I would assess the overall contributions as from the date of the commencement of the relationship until now as being 70 per cent in favour of the wife and 30 per cent in favour of the husband.  This adjustment reflects the considerable (albeit qualified as I have indicated) assistance provided by the wife’s family from time to time thus enabling the wife to work to the benefit of the parties. 

6. This benefit was all the more accentuated in the period from 2013 onwards, during which the husband effectively contributed nothing.  He has continued to contribute nothing since separation in 2016 and it is only through the wife’s very considerable endeavours that the property has been able to be maintained and the mortgage kept under some sort of control and the debt to her brother reduced.  While the debt to her brother is arguably only that of the wife, by the same token without this loan it seems that the property would have likely been sold.  The husband has had an indirect benefit from it.  It plainly forms part of the wife’s overall contribution.

7. Having said this, however, it is also important to remember that it is well established that in a marriage, particularly a relatively long one, the parties must take the good with the bad.  The fact that the husband’s business was unsuccessful is most unfortunate but does not, as it were, stand as a factor that should give rise to any kind of dollar for dollar accounting against him.  The more pertinent aspect of the failure of that business was the fact that as a matter of practical politics the husband’s direct financial contribution following 2013 was effectively nil, even though there may have been some slight adjustment to his contribution to the running of the household as a result of his more flexible working hours.

8. I repeat, calibrating all these matters, there should be a 20 per cent adjustment in favour of the wife.

Future Needs

1. Both these parties are now getting on somewhat in years.  To put this matter in context, I would point out that by 2022 they should both be able to access their superannuation, should they so wish.  Their children are now adults, but the wife will have the care of Mr A Saeli for the rest of her life.  It is a heavy burden.  It should be noted that while Mr A Saeli is in receipt of very substantial NDIS funding this does not pay any of the mother’s actual bills.  At best it gives her one night of respite a week which, while doubtless very welcome, is not actual cash that she can spend.

2. I accept that the husband wants to spend more time with Mr A Saeli than he presently does, and I note that Mr B Saeli’s application before VCAT is still extant.  It seems, however, far more probable than otherwise to me that Mr A Saeli will continue to live with the mother.

3. The mother’s health appears to have some elements of concern, and that of the husband does not appear to be particularly exceptional.  Nonetheless, it is equally clear that the husband will continue to earn far less than the wife going forward.  Her earnings are likely to be approximately 50 per cent greater than his.  This is perhaps further illustrated by the significant disparity in their superannuation.  In the circumstances, a further adjustment of seven per cent to the wife under this heading is, in my view, an appropriate one, particularly bearing in mind her continuing care of Mr A Saeli.

Adult Child Maintenance

1. It is common cause that the Court cannot make an order for adult child maintenance unless it is satisfied that the provision of maintenance is necessary because of a mental or physical disability of the child.

2. In this case it is conceded that Mr A Saeli has a mental disability. Whether maintenance is necessary was left open to question.  In a sense, that is because the application for child maintenance has, indeed, been rolled by the wife into her application for property division more generally.  Even on the husband’s updated financial statement, it is apparent that he has a surplus of income over expenditure of in excess of $100 per week.  This is so notwithstanding $460 worth of rent, a figure which if applied to a mortgage at current rates together with a reasonable lump sum might well be sufficient to enable him to purchase his own property.

3. Having said this however, the figures in the financial statement are so vague as to be of but little assistance.  The wife’s claim for a lump sum payment of $50,000 would equate to $100 per week for approximately 10 years by which stage it is reasonable to suppose that the husband will have retired and his income will presumably be very substantially reduced.  Even at the rate of $350 a week, which would be an extraordinarily high amount given the husband’s net earnings of some $800 a week, it would still be a payment for some three or four years, after which, once again, the husband’s future employment must be open to question given his age. 

4. In the end, I am simply not persuaded that the husband has sufficient capacity to pay adult child maintenance to be prepared to make any order.

Conclusion – Just and Equitable

1. Taking a step back and looking at this matter overall, I think that the result I have proposed of a payment of some 77 per cent of the net property pool to the wife is just and equitable.  It was a relatively lengthy relationship of about 20 years, and I accept the submission by the husband that a payment of $50,000 to him as the sole outcome to these proceedings would not be just and equitable. 

1. Having said this, in my view it would seem more probable to me than otherwise that a very substantial proportion of the wife’s superannuation has been earned by her in circumstances where the husband was providing no material support to the relationship.  That was the case from 2012 onwards.  I think the disparity in the parties’ superannuation reflects this.  It is just and equitable that each party retain their superannuation.

2. The overarching resolution, with a 77/23 division and the parties each retaining their superannuation is in my view just and equitable. It will be noted that in the orders prepared, I have ordered the repayment via the wife, of the $53,000 still owed on the loan from her brother. While this loan was taken out shortly before separation, it clearly benefited both parties (the home would have been lost without it) and it is appropriate that both contribute to its repayment

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 4 December 2020