Sandford & Macy (No 2)
[2023] FedCFamC1F 108
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sandford & Macy (No 2) [2023] FedCFamC1F 108
File number(s): SYC 5112 of 2015 Judgment of: CAMPTON J Date of judgment: 3 March 2023 Catchwords: FAMILY LAW – PROPERTY – Undefended hearing – Applicant’s final relief struck out – Applicant cross examined the respondent and made submissions -Adjustment of property pursuant to s 90SM of the Family Law Act 1975 (Cth) – Where the parties have been separated for longer than the period of their de facto relationship – Longstanding non-compliance with orders and duties of disclosure by the applicant – Where applicant’s failures to disclose impacts on the balance sheet and the contribution findings and adjustments thereto – Where the respondent made significant post-separation contributions, including by way of her primary care and financial support of the parties’ only child – Where the respondent seeks the funds held in the parties’ joint bank account, being their only remaining jointly owned property – Where a just and equitable division of the parties’ property was found to be in the portion of 75 per cent to the respondent and 25 per cent to the applicant. Legislation: Family Law Act1975 (Cth) s 90SF, 90SK, 90SM, 106A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.026.06, 10.22, 10.26, 10.27
Cases cited: Black & Kellner (1992) FLC 92-287
Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14
Horrigan & Horrigan [2020] FamCAFC 25
Sandford & Macy [2022] FedCFamC1F 902
Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52
Weir and Weir (1993) FLC 92-338
Division: Division 1 First Instance Number of paragraphs: 109 Date of hearing: 28 February 2023 Place: Sydney The Applicant: Litigant in person The Respondent: Litigant in person ORDERS
SYC 5112 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SANDFORD
Applicant
AND: MS MACY
Respondent
order made by:
CAMPTON J
DATE OF ORDER:
3 March 2023
THE COURT NOTES THAT:
A.The Initiating Application of the applicant filed on 5 August 2015 was struck out by operation of Order 6(a) made on 22 November 2022.
B.The Proper Officer of B Bank is requested to do all things necessary to facilitate the implementation of Order 1 hereof.
THE COURT ORDERS THAT:
1.Within fourteen (14) days of the date of these orders, the applicant shall do all acts and things so as to transfer and assign to the respondent all his rights, entitlements and interest in the funds held in B Bank account ending …68.
2.The respondent shall serve a sealed copy of these orders on B Bank within seven (7) days of the date of these orders.
3.Save and except as provided for by these orders, the applicant and respondent shall each retain to the exclusion of the other all cash at bank and shareholdings held by them, all real property held by them, all items of furniture and personalty in their respective possession, and any superannuation interest they may hold.
Section 106A
4.In the event the applicant fails or neglects to execute any document to give effect to Order 1 within the time specified by such order, a judicial registrar of the Sydney Registry of the Federal Circuit and Family Court of Australia shall be appointed pursuant to s 106A of the Family Law Act1975 (Cth) to execute any document on behalf of the applicant, upon the judicial registrar being satisfied by affidavit evidence of the said default, with the applicant to meet the respondent’s costs associated with the application for the judicial registrar to execute documents pursuant to this order as assessed by the judicial registrar.
Costs
5.The respondent’s costs of the proceedings are reserved.
6.Should the respondent seek to make an application for costs against the applicant, within 28 days of the date of these orders she shall file and serve:
(a)An Application in a Proceeding specifying with particularity the orders as to costs she seeks; and
(b)An affidavit in support thereof.
Extant applications
7.Save and except as provided for in these orders and as to costs all outstanding applications and responses thereto be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sandford & Macy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
INTRODUCTION
Mr Sandford (“the applicant”) by way of an Initiating Application filed on 5 August 2015 sought orders for the adjustment of property subsequent to the termination of a de facto relationship with Ms Macy (“the respondent”). The respondent filed a Response to that Initiating Application on 19 October 2015, an Amended Response on 14 March 2016 and a Further Amended Response on 19 November 2022. She also seeks orders for the adjustment of property.
The parties began a relationship in 2007. They commenced cohabitation in mid-2007 and separated in 2014.
The parties have one child together, namely X (“X”) who was born in 2013. X was just under one year old at the date of separation. He is now nine years old. Final consent orders were made regulating the parenting of X on 3 November 2020 which provide broadly for X to live with the respondent and spend increasing time with the applicant, such that by his first term of Year 6 (being in 2025), he shall live in a week-about arrangement between the parties.
THE HISTORY OF THE LITIGATION
The failure and neglect of the parties to meaningfully prosecute the financial dispute between them over the past seven and a half years has been wholly unacceptable. The litigation has been characterised by continuing allegations and counter-allegations made by each party against the other as to failures to comply with the obligations of full and frank disclosure of their financial circumstances pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
To date the matter has occupied not less than 40 listing and hearing events, including 22 case management and/or directions hearings, four conferences (including one conciliation conference in December 2016) and two interim defended hearings. At least eight hearing events were conducted by a judge of the Federal Circuit and Family Court of Australia (Division 1) (as it is now known). At almost each and every one of these listings and hearings, the matter has been unprepared and unable to meaningfully progress.
The proceedings were allocated to my docket and first came before me for case management on 25 March 2022. On that date, the parties advised the Court that the respondent had made an offer of settlement to the applicant, which he was considering, and they expressed a desire to resolve their outstanding financial dispute. That compromise has not been achieved.
The proceedings again came before me on 18 July 2022. Orders were made listing the proceedings for trial over two days in the Sydney Rolling List commencing on 6 March 2023. Directions were made for:
(a)The applicant to file an Amended Initiating Application setting out with particularity the final orders he sought and for the respondent to file and serve any Amended Response to the Initiating Application setting out with particularity the final orders she sought;
(b)The parties to file updated Financial Statements, single consolidated trial affidavits and Undertakings as to Disclosure pursuant to the Rules;
(c)The applicant to make additions to a balance sheet filed by the respondent on 29 May 2022, and thereafter for an agreed version of that balance sheet to be filed.
An order was made that except for material filed in compliance with the directions, neither party would be permitted to file or rely on any further or past affidavits at trial without leave of the Court.
Neither party complied with any of the above directions. By the time the matter was listed again on 11 November 2022, they had not since 18 July 2022 filed a single document and hence there was no evidence before the Court for the purpose of the trial listed to commence on 6 March 2023. On 11 November 2022 each party was invited to make submissions as to why the Court ought not strike out the Initiating Application and any Response thereto in the circumstances of their chronic failures to comply with the Rules and the orders and directions made by the Court to date. This judgment assumes familiarity with the reasons for judgment delivered on that date, being Sandford & Macy [2022] FedCFamC1F 902, and the accompanying orders then made listing the proceedings on the Court’s own motion for the potential striking out of each party’s substantive applications on 22 November 2022.
Prior to that next listing, on 17 November 2022 the respondent filed a balance sheet, a Genuine Steps Certificate and an Undertaking as to Disclosure pursuant to r 6.06 of the Rules and a Financial Statement. She filed an Amended Response to an Initiating Application on 19 November 2022.
By the hearing on 22 November 2022 the applicant still had not complied with any of the trial directions. The last document he filed in the proceedings was on 12 May 2021. The following orders and notations were made on 22 November 2022:
THE COURT NOTES THAT:
A.For the purposes of the s 90SM trial currently listed to commence in the Sydney Rolling List not before 6 March 2022:
i.The parties agree that the [applicant’s] United Kingdom real property is valued at £100,000, and that the value of the mortgage secured upon the UK property is £45,000 subject to the [applicant] verifying the quantum of that mortgage liability in writing and disclosing it [the respondent];
ii.The [applicant] contends additional costs relating to the UK property will be a liability in the balance sheet identify the property of the parties in the range on £89,000 and it will be a matter for the [applicant] to establish at trial an evidentiary foundation for such liability;
iii.The [applicant] has advised today that he proposes to seek an order by way of property adjustment such that he receive 80 per cent of the approximate $117,000 in the joint frozen bank account and a superannuation splitting order as to 50 per cent of the [respondent’s] superannuation entitlements. The [respondent] seeks a property adjustment order by way of her amended response to final orders filed 19 November 2022 such that she receive all of the monies held in the frozen joint bank account of approximately $117,000 and no other order for financial adjustment as between the parties.
THE COURT ORDERS THAT:
1.The time for the [applicant] to file and serve any amended Initiating Application setting out with particularity the final orders he will seek at trial be extended until close of Court business on 1 December 2022.
2.The time for the [applicant] to file and serve his updating financial statement, any single consolidated trial affidavit relevant to his case, any affidavit of any witness he proposes to rely at trial and an Undertaking as to Disclosure in accordance with r 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth); be extended until close of Court business 1 December 2022.
3.The time for the [respondent] to file any single consolidated trial affidavit relevant to her case and any affidavit of each witness she will seek to rely upon at trial be extended until close of Court business 1 December 2022.
4.All affidavits are to comply with Part 8.3 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
5.Except as already provided for by these orders, the parties will not be permitted to file any further affidavits and may not rely upon any past affidavits at trial without the leave of the Court.
6.In the event either the [applicant] or the [respondent] fail or neglect to comply with the aforementioned orders then:
a.In the event the [applicant] is in default his Application for final orders for property adjustment pursuant to s 90SM of the Family Law Act 1975 (Cth) filed 5 August 2015 is struck out and the [respondent] will be at liberty to proceed to have her amended Response to final orders filed 19 November 2022 to be determined on an undefended basis; and
b.In the event the [respondent] is in default, her amended Response to Final Orders filed 19 November 2022 is struck out and the [applicant] will be at liberty to proceed to have his amended Initiating Application as filed in accordance with these orders determined on an undefended basis.
7.In the event both the [applicant] and the [respondent] fail to comply with the above orders then each of the [applicant’s] Initiating Application for final orders filed 5 August 2015 and [the respondent’s] Amended Response to Final Orders filed 19 November 2022 are struck out and the trial dates commencing not before 6 March 2023 in the Sydney Rolling lists are vacated.
8.The trial directions as made on 18 July 2022 are otherwise confirmed.
9.Each party is to serve upon the other on or before Friday 8 December 2022 an offer of settlement pursuant to s 177C of the Family Law Act 1975 (Cth) and in the event of any failure or neglect to comply with this order the party in default will be required to explain at the commencement of the trial the reasons for non-compliance and otherwise why their substantive relief might not be struck out.
The respondent then filed her trial affidavit (on 30 November 2022) and her Case Outline document (on 2 February 2023) and hence complied with Order 3 made on 22 November 2022 and with the balance of the trial directions made on 18 July 2022.
The applicant has not filed any document as was required of him, including an Amended Initiating Application, a balance sheet, a Financial Statement, an affidavit, or a Case Outline document. He last filed a Financial Statement on 5 August 2015 (seven and a half years ago).
On 24 February 2023, in the shadow of the applicant’s noncompliance with the orders made on 18 July 2022 and 22 November 2022, and noting that by operation of Order 6(a) made on that date his Initiating Application filed on 5 August 2015 had been struck out, the respondent’s Response to an Initiating Application was listed for an undefended hearing on 28 February 2023. A sealed copy of the orders made 24 February 2023 was sent to the address for service of each party on that day.
Irrespective of the operation of Order 6(a) made on 22 November 2022 striking out the Initiating Application filed on 5 August 2015, I would have found in any event that the applicant’s history of participation in the proceedings by way of sporadic (if any) and haphazard compliance with directions, orders and the rules has been such that:
(a)It would have attracted the provisions of r 10.22(1) of the Rules, where the applicant has not taken a step in a proceeding for six months (in this case not filing a single substantive document in the proceedings since 12 May 2021) so that the Court would, on its own initiative, dismiss the applicant’s Initiating Application; and
(b)This is a case to which r 10.26 and 10.27 of the Rules apply, in that the applicant has been in default of orders made in the proceedings, such that his Initiating Application filed 5 August 2015 ought to be dismissed.
THE RELIEF SOUGHT
By her Amended Response to an Initiating Application filed 19 November 2022, the respondent sought that she retain the sum of monies held in the parties’ joint B Bank account ending …68 (“the parties’ joint B Bank account”) or that they be transferred to her, and that each party otherwise retain all other items of property and interests in superannuation in their names, and be solely responsible for any liabilities held in their sole name.
The applicant at the hearing resisted the respondent’s relief sought.
DOCUMENTS RELIED UPON BY THE RESPONDENT
As identified in her Case Outline filed 2 February 2023 (Exhibit 1), the respondent relied on her affidavit filed on 30 November 2022 and annexures thereto (Exhibit 2), her Financial Statement filed on 17 November 2022, her balance sheet filed 16 November 2022, and further documents tendered during the hearing.
The applicant appeared on his own behalf at the undefended hearing on 28 February 2023. He did not make any application to adjourn or vacate the hearing, nor did he make an application to adduce evidence in his case. He was put on notice that as part of the undefended hearing process he would be permitted to cross-examine the respondent, tender documents into evidence, and to make submissions. The applicant cross-examined the respondent for 1.5 hours and made submissions. He did not seek to tender any documents. Much of his cross-examination of the respondent had de minimis relevance to the s 90SM issue at hand, and rather seemed to be directed at airing personal grievances arising from the relationship.
FINDINGS OF FACT
The applicant was born in 1969 and is currently 54 years of age. The respondent was born in 1975 and is currently 47 years of age.
Both parties are Australian citizens. The applicant also has British citizenship.
The parties met in Australia in 2007. At that time, the respondent was working as a manager in the NSW public service. They commenced to live together in a de facto relationship in the United Kingdom (“the UK”) in mid-2007. Shortly after relocating to the UK, the respondent commenced employment in the UK public service also as a manager.
The respondent contributed at the commencement of the de facto relationship:
(a)Savings of approximately $20,000;
(b)Furniture and personal effects; and
(c)Interests in superannuation of approximately $100,000.
The affidavit evidence of the respondent was that the applicant contributed at the commencement of the de facto relationship:
(a)A 25 per cent share in a property at C Street in City F (“the C Street property”), which she asserts had a value of approximately $800,000, and hence the applicant’s share had a value of $200,000. The property was encumbered by way of a mortgage of unknown value.
(b)A 75 per cent share in a property at D Street, Suburb E, City F (“the D Street unit”), which she asserts had a value of approximately $700,000, and hence the applicant’s share was $525,000. The property was encumbered by way of a mortgage of unknown value.
(c)Personal debts of around $100,000.
Just prior to relocating to the UK, the respondent lent the applicant $5,000. She said this amount was never repaid. The applicant did not challenge this evidence in cross-examination. I so find.
It was the respondent’s evidence that as at June 2007:
16.My approximate net worth at the start of cohabitation was around $145,000. To the best of my knowledge [the applicant’s] net worth was $600,000.
This evidence as to the applicant’s direct financial contributions at the commencement of cohabitation was not accurate. It did not take into account the value of the mortgages secured on each of the UK real properties. There was no evidence as to the value of these mortgages at that time.
Upon arriving in the UK, the respondent discovered the applicant was in significant debt owing to various banks. He had defaulted on the mortgage secured on the D Street unit, and his bank account had been “frozen” such that he was unable to withdraw funds from it. The applicant in cross-examination challenged the respondent on her assertion as to his default on the D Street unit mortgage. The respondent maintained her recollection as to the default. In circumstances where there is no documentary evidence to the contrary, nor any evidence of the applicant, and where the respondent remained unshaken in cross-examination, I accept her evidence on this issue. That said I cannot make any finding as to the value of the default, or when the arrears were rectified by the parties.
In mid-2007 the respondent opened an account with G Bank in the UK. The applicant was added to as a joint account holder in late 2007 (“the joint G Bank account”). Shortly after the respondent started working in the UK, she commenced to make repayments on the respondent’s debts from her own income. This finding is supported by various emails sent between the parties in late 2008 to mid-2009 in which they corresponded about the applicant’s financial circumstances (described by the respondent at that time as “precarious”) as well as a number of bank account statements recording loan repayments made by the respondent.
In 2007 the mortgage on the D Street unit was refinanced. There was no evidence as to the value of this refinance.
In mid-2007 the applicant accepted a voluntary redundancy from his then employer, and received a payment of approximately 40,000 GBP. He applied a portion of those funds towards his debts, and a portion towards the costs of a holiday the parties took in late 2007.
Between late 2007 and mid-2008 the parties travelled and did not work. Their travels were in part funded by the applicant’s redundancy payment, in part by the monies obtained by the applicant upon the refinance on the mortgage on the D Street unit, in part by a cash gift from the respondent’s parents of $15,000, in part by a taxation refund of the respondent for the 2007 financial year in the sum of around $8,000, and the balance of in excess of 4,000 GBP was paid from the respondent’s credit cards, which she later repaid. The respondent accepted in cross-examination that the applicant paid a “significant portion” of the costs of the parties’ travel in this period.
The respondent recommenced work shortly after they returned to the UK in mid-2008. The applicant worked for a three month period between late 2008 and early 2009, but was otherwise unemployed after the parties returned to the UK.
The parties separated in mid-2009.
The applicant sold the C Street property in early 2010. He received around 50,000 GBP from the sale. It was the respondent’s uncontested evidence, and I find, that of those proceeds, the applicant purchased some furniture for the D Street unit, paid for the costs of shipping some furniture to Australia later in 2010, paid for flights for himself and the respondent to Australia, and otherwise that the applicant “spent a significant amount on himself including new clothes and other possessions”. About $30,000 of the proceeds of sale were applied to the parties’ joint B Bank account.
The parties reconciled in early 2010 (six months after their initial separation), and moved into the D Street unit. It was the respondent’s uncontested evidence and I find that from the time they commenced living in the property until they left the UK, she paid “all of the household bills and often paid [the applicant’s mortgage]”. She said that she transferred a total of 14,845 GBP into the account from which the bills and mortgage relating to the D Street unit was paid (her evidence seems to relate to the two-year period between late 2008 and late 2010).
The parties moved to Australia in late 2010 and have each remained here since that time, hence the mandatory geographical requirement for the purposes of jurisdiction pursuant to s 90SK of the Family Law Act 1975 (Cth) (“the Act”) is satisfied.
Upon their arrival in Australia the respondent recommenced employment with the public service as a professional. Her salary was $100,000 annually. The parties were solely reliant on the respondent’s income between late 2010 and early 2011, when the applicant commenced employment with H Company. His salary was $120,000 annually. The applicant resigned from his employment in late 2011 and was unemployed until he commenced employment with J Company in mid-2012. During the five or six months that the applicant was unemployed, the respondent solely met the household costs including rent, bills, groceries, and the costs of engaging a cleaner.
The parties opened their joint B Bank account in January 2011. They each contributed their savings into that account from time to time. It was the respondent’s unchallenged evidence and I find that the bank statements for the parties’ joint B Bank account record that from January 2011 (when the account was opened) to September 2014 (at separation), the respondent deposited a total of $76,250 into the account. In the same period the applicant deposited $42,980 into the account, including $30,000 of the proceeds of sale of the C Street property as recorded earlier in these reasons. They “jointly deposited” $10,700, by way of interest, rental bond refunds and other refunds. From the parties’ joint B Bank account, they continued to make mortgage repayments on the D Street unit, and otherwise paid for joint expenses including $5,000 towards medical treatment, furniture and other living expenses.
In or around mid-2013 the respondent was made redundant. She was about six or seven months pregnant at that time, and did not return to work. She received a redundancy payment of about $35,000 and maternity leave payments of about $30,000. She applied $25,000 of those funds to the parties’ joint B Bank account, $6,000 to her personal savings, and the balance towards meeting her share of the parties’ day-to-day living expenses and towards items such as a cot, pram and change-table in preparation for X’s birth. It was the respondent’s uncontested evidence that the applicant did not contribute towards those costs associated with X’s birth. I so find.
The parties agreed while the respondent was on maternity leave that the applicant would contribute an extra $500 per month to the parties’ joint B Bank account, although the respondent said this did not eventuate. The applicant spent 15 minutes cross-examining the respondent on a “household budget” she created for the parties during her period of maternity leave. The questioning on that matter revealed little relevant evidence not already contained in the respondent’s affidavit. During cross-examination the respondent said that between early 2014 and when she returned to work (being a period of three or four months) she met 40 per cent of the household costs and the applicant met 60 per cent of those costs. I accept that evidence and so find.
The respondent returned to full-time work in mid-2014. She earnt an annual salary of around $130,000.
I accept and find, consistent with the tenor of the respondent’s evidence, that save for periods when the applicant was unemployed, the parties broadly shared their day-to-day costs of living after they moved to Australia. For the most part, I find that they each paid half of their rent and half of their bills, including for the period when the respondent was on maternity leave. These equal contributions included to the ongoing costs associated with the D Street unit, including the mortgage secured on the property, repairs and the installation of a new boiler.
During their relationship, save and except for their joint G Bank account in the UK and joint B Bank account in Australia and other personal effects and furniture of de minimis value, the parties did not jointly own property.
It was the respondent’s untested evidence and I find that from X’s birth the respondent has been and remains primarily responsible for meeting his needs on a day to day basis including for the period of her maternity leave between 2013 and 2014.
The parties separated on 24 September 2014. At separation the respondent moved out of the rental property in which they were living and obtained her own rental property in Suburb K, Sydney.
At separation, the respondent had the following by way of assets and liabilities:
(a)$20,000 in personal savings; and
(b)Superannuation interests of approximately $120,000; and
(c)Her undivided share of the parties’ joint B Bank account.
Exhibit 3, being a bundle of statements for the parties’ joint B Bank account, recorded that the balance of the account at 30 September 2014, six days after separation, was $102,227.53.
The respondent said that because of the applicant’s insufficient disclosure, her knowledge of what he had by way of assets and liabilities from separation is limited, but that she understood the value of his superannuation interest was about $45,000, and that he had some personal credit card debt, together with the D Street unit subject to the mortgage.
The parties divided their personal effects between themselves, albeit that the respondent makes complaint that the applicant delayed or failed to make possessions available to her, such that she was required to furnish her new rental property herself. The respondent said that she spent approximately $10,000 of her cash funds at separation establishing herself and X in new rental accommodation. Shortly after separation, the respondent had completely depleted the personal savings she had accumulated at separation. I so find.
Initially upon the parties’ separation, X lived with the respondent and spent limited time with the applicant. His time with the applicant has slowly increased over the now greater than eight after separation.
The respondent after separation made the decision to reduce her working hours to part-time, so that she was able to care for X. From early 2016, she worked two days per week, earning a salary in the range of $50,000 annually. She additionally received a “part-pension as a single parent” in the range of $25–40 per week or $1,300–2,000 annually. I find that she supported herself and X until mid-2020 on that income, and for the large part of the past eight and a half years, without a great deal of direct financial assistance from the applicant.
On 28 February 2019 when X was five years old, orders were made by consent providing for X to live with the respondent and spend time with the applicant:
(a)From after school each Wednesday to before school on Thursday; and
(b)From March 2019, each alternate weekend from after school on Friday to the commencement school on Monday; and
(c)For half of each school holiday period.
Those orders remained in force for nearly two years, until 3 November 2020, when the final consent parenting orders were made. As recorded, those orders provide for X to live with the respondent and spend gradually increasing time with the applicant such that from Term 1, 2025, when X commences Year 6, he will live with the parties on a week-about basis.
The applicant paid $2,730 towards X’s child care fees in 2017. The respondent met the balance up to $6,630. Save for that period of twelve months, the respondent alone has paid X’s child care fees, school fees, after-school care costs, school uniform costs, costs of extra-curricular activities, costs of dentists and healthcare including counselling sessions, and swimming lessons. She was challenged on this evidence in cross-examination and remained consistent with her affidavit evidence. No document was tendered by the applicant which demonstrated his contributions to X’s costs identified by the respondent. I accept the respondent’s evidence and so find. The applicant’s payment of periodic child support has been insubstantial and sporadic. He began paying child support as assessed in January 2015, initially in the sum of $810 per month, and that those payments reduced to $100 per month when the applicant became redundant in mid-2016 before ceasing all together in 2017. In 2018 the applicant paid child support of $7,194 in total, and then in 2019 paid $458. The applicant tested the respondent in cross-examination as to child-support, and her oral evidence on this matter remained firm and consistent with her affidavit evidence, and I so find.
In July 2019, the respondent was assessed to pay child support to the applicant. She currently pays the applicant child support of $355 per month.
The respondent is employed on a full-time basis with the NSW Public Service, earning a weekly gross salary of $2,780 (being about $145,000 annually). She commenced this role in 2020. Her total weekly expenses, including child support paid to the applicant, are $2,489 as disclosed in her Financial Statement. She pays $720 per week in rent for a two bedroom home in Suburb L.
There is no evidence as to the applicant’s current employment status. The respondent said, and I accept, that after separation the applicant continued to work full-time until he was made redundant in mid-2016. The evidence establishes that he received a redundancy payment of $63,000. There is no evidence as to how he expended those funds. Thereafter, it was the respondent’s evidence that she understands the applicant has remained “largely unemployed apart from a brief period between [mid-2017] and [mid-2018] when he had a contract position with an unknown employer”.
The respondent gives evidence that since separation she has continued to increase her assets, including accumulating her current $40,000 in savings, purchasing a car and increasing her superannuation interests. Her affidavit recorded and I accept that since mid-2021 she has made voluntary contributions to her superannuation of $250 per fortnight. Conversely, she contends that the respondent has depleted his assets by making voluntary withdrawals from his superannuation, withdrawing from his M Insurance endowment plan and accumulating personal and credit card loans. The respondent said and I find that the evidence establishes that the applicant:
(a)On 22 April 2020, withdrew $10,000 from his Superannuation Fund 1 (Exhibit 2, being the annexures to the respondent’s affidavit including the applicant’s Superannuation Fund 1 30 June 2020 quarterly statement);
(b)On 1 February 2021, withdrew $10,000 from his Superannuation Fund 1 (Exhibit 6, including a summary of the applicant’s Superannuation Fund 1 benefits as at 23 March 2021);
(c)On March 2016, withdrew $33,000 from his M Insurance endowment plan (Exhibit 2, being the annexures to the respondent’s affidavit including a bank statement for the applicant’s G Bank account for the period 19 February to 18 March 2016 demonstrating transfers in from “[M Insurance] assurance”);.
The respondent said and I accept that the above transactions occurred without her knowledge or consent. I find that the applicant retained these funds for his sole benefit. There is no evidence as to his use and application of these funds.
Drawing from the limited financial documents disclosed to her by the applicant, the respondent said and I find that the applicant had received financial support by way of cash transfers from his mother on at least four occasions between 19 March 2020 and 7 February 2021, totalling 30,600 AUD and 756 GBP.
THE LAW AND CONSIDERATION
In determining claims for alteration of de facto property interests, I am required to:
(a)Make findings as to the identity and value of the property (including superannuation interests), liabilities, and financial resources of the parties, or either of them, at the time of the final hearing, and determine the legal and equitable interests of the parties in such property;
(b)Consider, identify and assess the contributions by the parties to the acquisition, conservation and/or improvement of their property, including financial and non-financial contributions and any contributions to the welfare of the family before, during and after the relationship came to an end; and
(c)After consideration of altering the interests in the property pool on the basis of contributions, to consider whether there should be any further adjustment to either of the parties on account of the matters set out in s 90SM(4)(d)-(g) of the Act, including any relevant considerations under s 90SF(3);
(d)Ensure that any order made is just and equitable.
The balance sheet
The respondent’s balance sheet was filed on 16 November 2022. Doing the best I can, on the material available, I find the known property of the parties as at the date of the hearing to be:
Ownership Description Source of Value Value ($) ASSETS
1
Applicant D Street unit Agreed pursuant to Notation A made on 222 November 2022, being 100,000 GBP, converted on 28 February 2023 at a rate of 1 GBP to 1.79 AUD 179,000 2 Joint B Bank, account number …68 Oral evidence of the respondent, being that she checked the balance in the week commencing 20 February 2023 114,000 5 Applicant N Bank Savings account ending …00 Exhibit 5, being the applicant’s N Bank statement as at 31 January 2021 27,244 6 Applicant G Bank account ending …25 Exhibit 5, being the balance as recorded on the applicant’s G Bank statement as at 18 February 2021, being 56.20 GBP, converted on 28 February 2023 at a rate of 1 GBP to 1.79 AUD 101 7 Applicant G Bank account ending …33 Exhibit 5, being the balance as recorded on the applicant’s G Bank statement as at 18 February 2021, being 1,670.33 GBP, converted on 28 February 2023 at a rate of 1 GBP to 1.79 AUD 2,990 8 Respondent CBA account ending …37 as at 9 December 2020 Respondent’s Financial Statement filed 17 November 2022 40,204 9 Respondent CBA account ending …83 as at 9 Dec 2020 Respondent’s Financial Statement filed 17 November 2022 732 10 Respondent CBA account ending …34 as at 9 December 2020 Respondent’s Financial Statement filed 17 November 2022 3,810 11 Applicant P Group Shares Exhibit 6, P Group Statement as at January 2021, being 2,807 GBP, converted on 28 February 2023 at a rate of 1 GBP to 1.79 AUD 5,025 12 Respondent Motor Vehicle 1 Respondent’s Financial Statement filed 17 November 2022 5,000 Total 378,106 Ownership Description Source of Value Value ($) LIABILITIES 15 Applicant D Street unit mortgage Agreed pursuant to Notation A made on 222 November 2022, being 45,000 GBP, converted on 28 February 2023 at a rate of 1 GBP to 1.79 AUD 28 February 2023 80,550 Total 80,550 SUPERANNUATION Member Name of Fund Source of Value Value ($) 20 Applicant Superannuation Fund 1 Exhibit 6, as at 23 March 2021 36,818 21 Respondent Superannuation Fund 2 Respondent’s Financial Statement filed 17 November 2022 277,856 Total 314,674 Total known non-superannuation assets: $378,106
Total known liabilities: $80,550
Total known superannuation: $314,674
Total known net superannuation and non-superannuation pool: $612,230The D Street unit
As recorded above, the applicant had a 75 per cent interest in the D Street unit at cohabitation. The parties lived in the D Street unit between early 2010 and late 2010 (being nine months total) and otherwise the unit has been tenanted. There is no evidence as to the rental income received by the applicant from the unit.
The balance sheet produced by the respondent contends that the D Street unit at the time of the trial is wholly owned by the applicant. That reflects the representations given by both parties to the Court when the matter came before me on 22 November 2022. It is not clear on the evidence how or when the applicant came to acquire or receive the balance of the 25 per cent interest in the D Street unit. In any event, the parties agreed that for the purpose of these proceedings, the D Street unit could be attributed a value of 100,000 GBP, subject to a mortgage secured upon it of 45,000 GBP. That said in her affidavit, the respondent gave evidence that:
140.I agreed in court on 22 November 2022 to a nominal value of [100,000 GBP] for the [D Street unit] in order to ensure that this matter was able to proceed and because I am not seeking any claim on that property. I do not believe this is an accurate valuation. However it is impossible for me to assess the true value of the property due to [the applicant’s] ongoing lack of disclosure.
The notations made on 22 November 2022 record the applicant’s contention that additional costs associated with the D Street unit, including of renovations and in relation to legal proceedings as to the property, ought be included as a liability in the balance sheet in the range of 89,000 GBP. This matter is controversial. As was noted on 22 November 2022, it was a matter for the applicant to establish the fact of the contended liability at trial on the evidence. No such evidence has been adduced by the applicant, and these asserted costs were not a subject traversed by him in cross-examination of the respondent at the hearing. They shall not be included in the balance sheet.
In her affidavit, the respondent said that in mid-2022 she checked UK property sales listings and learnt that the D Street unit had been listed for sale at nearly 400,000 GBP (being about 700,000 AUD calculated at the conversion rate as at 28 February 2023). The applicant had not disclosed this listing to the respondent. During oral submissions the respondent said that she had undertaken a further internet search shortly before the undefended hearing and found that the D Street unit had been listed for sale, and was now under offer. I make no findings on this subject matter.
It may be that the value of the D Street property is greater than that agreed to by the parties on 22 November 2022. That said, the respondent is bound by the case she has run. There is vacuum of admissible opinion evidence as to any differing value of the D Street property, or of the mortgage secured upon it, save that agreed on 22 November 2022. In those circumstances, it would not be safe to depart from the agreed position of the parties as to its value. The respondent proposes that the applicant would retain his interest in the D Street unit in specie.
Disclosure
The respondent’s Undertaking as to Disclosure was filed on 17 November 2022. The applicant has not filed an Undertaking as to Disclosure at any stage throughout the eight year history of these proceedings in compliance with directions that he do so or with r 6.02 of the Rules.
Beyond the obligations imposed on litigants by way of Chapter 6 of the Rules, specific directions and orders have been made requiring the parties to these proceedings to exchange financial disclosure on at least 10 occasions since these proceedings were commenced (those orders being made on 26 October 2015, 16 August 2016, 19 December 2016, 14 September 2020, 13 October 2020, 3 November 2020, 18 March 2021, 14 December 2020, 18 March 2021, 5 July 2021).
A Conciliation Conference listed on 14 December 2020 could not proceed by reason of the applicant’s “incomplete financial disclosure” and the lack of “valuations for property and pensions/annuities”. When the matter came before the docket registrar on 18 March 2021, the following orders and notations were made:
Notations
2.The [applicant] has not complied with earlier directions made on 14 December 2020 for specific financial disclosure and information to the [respondent], and advised the court that there has been difficulty and delay in obtaining some information and documents from the UK due to the COVID-19 pandemic.
3.The [applicant] advised the court that he holds some documents that were in the list of documents in the 14 December 2020 orders but thought he needed to supply all of them to the [respondent] at the same time. The court advised the [applicant] that he needs to provide the [respondent] with any of the documents as soon as he obtains them.
4.The [respondent] advises the court that she agrees with the UK property valuation from April 2020.
5.The [applicant] was advised by the court that if he does not comply with the directions for full and frank financial disclosure then the matter will be transferred to a judge for final determination.
Orders
1.By no later than 4pm on 25 March 2021 the [applicant] is to provide the [respondent] the financial disclosure documents or information as set out in Order 2 of the orders of 14 December 2020 that he has in his possession, custody or control.
2.The [applicant] is to file by no later than 4pm on 1 April 2021 an affidavit setting out the reasons for the delay in complying with the orders relating to financial disclosure as set out in the orders of 14 December 2021, whether the disclosure sought is from the UK or otherwise AND the affidavit shall set out when the [applicant] is likely to obtain the documents or information requested and the contact details (name, address, email address, phone number) of any organisation or company that the [applicant] has been dealing with that the [applicant] consents to the [respondent] contacting directly.
In her affidavit the respondent deposed to the applicant’s history of deficient or incomplete disclosure on matters relevant to the proceedings, including providing details and particulars as to the various requests she has made of the respondent for such disclosure to which he has either not responded or responded in an incomplete and piece meal manner. It was her evidence, and I find, that the last set of documents provided by the applicant by way of financial disclosure were received by the respondent on 18 March 2021. Hence his disclosed bank balances and superannuation entitlements as recorded in the balance sheet identified earlier in these reasons are antique. During the course of the hearing the respondent tendered into evidence a number of those documents, which became Exhibits 5 and 6. Most of those documents dated to early 2021, being close to two years out of date. They have formed the basis for Items 5–7, 11 and 20 on the balance sheet recorded above. The applicant did not tender any documents to verify the current value of his bank accounts, mortgage or superannuation.
I accept the respondent’s evidence and find that the applicant has failed to disclose to her in a timely fashion, or at all:
(a)His employment since his redundancy from J Company in 2016 and any income received;
(b)The fact or value of any disposals of assets which otherwise would have formed part of the parties’ property pool, including withdrawals from the applicant’s superannuation accounts and M Insurance annuity;
(c)The fact and quantum of any financial support received from his mother;
(d)The current value of any assets or liabilities held in his sole name, including the value of the D Street unit and the mortgage secured upon it and any cash savings account;
(e)The fact of any financial resources from which he benefits.
I find that the applicant was alert to his ongoing duty of disclosure, at least by reason of the orders made throughout these proceedings as recorded, and that he has persistently failed to fulfil that duty of disclosure. The Full Court has long recognised that the process of determining a just and equitable division of the property of parties to a de facto relationship is heavily dependent on the parties fully meeting their disclosure obligations (see, for example, Weir and Weir (1993) FLC 92-338). The material non-disclosure of the applicant in these proceedings has denied both the respondent and the Court the opportunity to:
(a)Ascertain the current identity and value of all of the superannuation and non-superannuation property of the applicant available for adjustment; and hence to
(b)Achieve diligence in the assessment of the contributions by each party and any adjustments to contribution findings to be made.
In the circumstances, I am satisfied that a robust approach may be taken to inferring findings of fact in favour of the respondent (see Black & Kellner (1992) FLC 92-287).
Is it just and equitable to adjust property?
In Stanford & Stanford (2012) 247 CLR 108 the High Court observed that it is necessary for me to be satisfied that justice and equity will be achieved as part of the adjustment process pursuant to s 79 (or here, s 90SM) of the Act. The requirements identified in the High Court are readily satisfied in this matter having regard to:
(a)The period of the relationship of the parties and the myriad of contributions made over that period;
(b)The parties’ relationship having broken down and them now living apart;
(c)The funds currently held in their joint B Bank savings account are “frozen” by the bank since separation such that an order is required so as to break the inability of the parties to continue to jointly own that property.
The applicant submitted that it would be appropriate for the superannuation and non-superannuation property of the parties to be considered in a single pool for the purpose of the s 90SM exercise. The respondent said she was unsure as to her position on this topic. I am satisfied that it is appropriate to deal with superannuation and non-superannuation in a single pool of property available for adjustment in circumstances where neither party seeks a superannuation splitting order, when regard is had to the findings made earlier in these reasons as to the use made of superannuation entitlements, including by way of contributions and unilateral withdrawals of value, and when regard is had to the fact of and impact of disclosure failures of the applicant.
Contributions
I broadly find the applicant’s direct initial financial contributions to the non-superannuation pool at the commencement of cohabitation were superior to those of the respondent. A part of those initial direct financial contributions now appear on the balance sheet at Items 1 and 15, being the D Street unit and its mortgage, having a net value in the range of $98,450. The respondent’s superannuation contributions at cohabitation were substantially superior to those of the applicant. They produced the seed for the current value of her superannuation entitlement supplemented by her post-separation superannuation contributions.
Throughout the course of their relationship I find that each party contributed within their respective spheres in their relationship dynamic to the extent of their respective capacities. As recorded, they equally met all household costs (including rental payments and bills), save for:
(a)The periods when the parties were in a relationship and the applicant was unemployed, during which time the respondent met all household costs herself, being between:
(i)mid-2008 and late 2008;
(ii)early 2009 and mid-2009;
(iii)early 2010 and early 2011; and
(iv)late 2011 and mid-2012.
(b)The three or four month period between early and mid-2014 when the respondent was on maternity leave, and the parties shared their expenses in the portion of 40 per cent by the respondent and 60 per cent by the applicant as recorded at [41] above.
The respondent in her affidavit said, and I find, that while the parties lived together, she was primarily responsible as between them for the homemaking responsibilities, including “cooking, cleaning, shopping, budgeting bills and managing social activities”. This was not materially challenged by the applicant in cross-examination. The respondent accepted the applicant’s proposition that for a period from mid-2011 she was required to work long hours and was often away from the home. She said and I accept that she paid for a cleaner during this period.
As recorded at [45] above, the respondent undertook more of the parenting responsibilities in the period after X’s birth and before separation. She was on maternity leave during that time.
I accept consistent with the respondent’s evidence that she contributed close to 70 per cent of the funds currently held in the parties’ joint B Bank account. In cross-examination the applicant put to the respondent that he too had made “substantial” contributions to the account. He did not quantify those contributions.
The respondent submitted, and I find that, in circumstances where the parties have now been separated for a longer period than the period of their relationship, their respective post-separation contributions, which significantly favour the respondent, attract weight.
As recorded in these reasons, the respondent has shouldered the vast bulk, at least since separation, of the financial support of herself and X. I accept and find that she has been primarily responsible for the majority of his non-periodic costs. She has also met the majority of X’s periodic costs cast against the light of the applicant’s inconsistent child support payments and the fact of she now paying child support as assessed to the applicant. I accept the respondent’s evidence and find that she has been primarily responsible for the costs of maintaining X since 2014.
Since separation the respondent has accumulated property from her own efforts, including the whole of the value of her current savings being Items 8–10 on the balance sheet in excess of $40,000. The value of her superannuation interests has increased in the range of $157,000 since separation, including by way of additional voluntary contributions as recorded in [59] above.
Conversely the applicant has depleted the parties’ assets by way of withdrawals from his superannuation and his M Insurance endowment as recorded at [59] above. In circumstances of the applicant’s non-disclosure I infer these funds were used for his sole benefit.
The respondent’s post separation parenting contributions, including by way of reducing her hours worked to care for X and X having now lived primarily with her for some eight years, significantly dwarf those of the applicant.
The respondent submitted that it is difficult for her to quantify what she contends a contribution finding up to the hearing expressed as a percentage of the current property of the parties due to the applicant’s disclosure failures with part of that current pool of the property being unknown. I accept that submission. The applicant made no submission as to what contribution finding ought be made by the Court.
The Full Court as recently as Horrigan & Horrigan [2020] FamCAFC 25 emphasised and reinforced that the proper approach to the assessment of contributions is:
35.…well established that an assessment of contributions is not a mathematical exercise, but rather involves the identification and assessment of all of the parties respective contributions, in a holistic way across the course of the relationship and in the post-separation period to the point of assessment
Taking into account in a holistic way all of the matters as to contributions identified in this judgment made by the parties at the commencement of the relationship, during the relationship and post separation, I conclude that contributions to a single pool of superannuation and non-superannuation property ought be assessed favouring the respondent as to 65 per cent and the applicant as to 35 per cent. This will be a disparity of 30 per cent between the parties. In dollar terms (on the known non-superannuation and superannuation pool) this equates to $183,669.
Adjustment to the contributions findings
The respondent is 47. She is in good health. The applicant is 54. There is no evidence to suggest he suffers from poor physical health.
The respondent alluded to the applicant suffering from anxiety from time to time which throughout the relationship impacting on his capacity to maintain gainful employment. During the course of the hearing, the applicant denied suffering mental health challenges. There is no evidence to support a finding as to the applicant’s current mental health status or his capacity for work. During cross-examination the applicant put to respondent the proposition that she lived with mental health challenges which might impact on her capacity to earn an income in the future. She forcefully denied that. I find that the parties’ respective health positions is neutral in my assessment of any adjustment to the contribution findings.
As recorded earlier in these reasons, the respondent earns an annual gross salary of $145,000. There is no evidence as to the applicant’s current income (if any). He said in oral submissions that he has previously “[commanded] a good six-figure salary” but that given his age and presentation there was some uncertainty as to whether he would be able to attain that salary in the future. Again, there is no evidence to support either of those contentions. I find that the applicant is not currently incapacitated from work. I am unable to make a reliable finding as to the applicant’s likely future income in circumstances of his disclosure failures, in light of which I take a robust assessment of his future earning capacity. Notwithstanding same, I find that at least in the immediate future the respondent is likely to have a superior income and income earning capacity when compared to the applicant.
The respondent shall continue to have the primary care of X in accordance with the final parenting orders until Term 1, 2025, when a week-about arrangement will commence. This factor weighs slightly in favour of the respondent.
The respondent has repartnered. In cross-examination she said that she has discussed moving in with her new partner, but that she had not made any firm plans to do so. She said and I accept that she does not intend on moving in with her new partner this year. I further accept that the respondent’s new partner does not contribute to the costs of her rent, or of maintaining X. This factor does not weigh in favour of an adjustment to either party.
The applicant paid sporadic child support to the respondent after separation. The respondent has paid child support as assessed by the Child Support Agency since July 2019. She has complied with her child support obligations since that time, and I accept that she will continue to do so.
The applicant submitted that he has adequate resources to support X. There is no evidence contrary to that submission.
The respondent by way of the contribution findings will receive a greater portion of the property of the parties than the applicant. That said, the identity and quantum of the parties’ assets, liabilities, financial resources (if any) and interests in superannuation was uncertain as at the hearing arising from the respondent’s significant disclosure failures as recorded in these reasons. It may be that the D Street unit is valued or will shortly be sold at a value greater than that agreed by the parties and reflected in the balance sheet. In the circumstances of the applicant’s disclosure failures I do not give the apparent difference in the parties’ respective financial circumstances considerable weight.
After consideration of the matters contained in s 90SM(4)(d)–(g) of the Act, taking into account all relevant matters and acknowledging that a robust approach should be taken to the applicant’s disclosure failures, I find a consideration holistically of these factors warrants an adjustment from the contribution findings in favour of the respondent of 10 per cent.
By way of cross-check the value of this adjustment in money terms is $61,223, a differential of $122,446.
Justice and equity
Accordingly, the respondent has an overall entitlement to 75 per cent of the pool of non-superannuation assets and superannuation identified in the balance sheet. This equates to $459,172.50. The applicant will receive 25 per cent of the pool of non-superannuation assets and superannuation identified in the balance sheet equating to $153,057.50.
Not accounting for her interest in the parties’ joint B Bank account, the respondent currently has Items 8–10 (her bank accounts), 12 (her car), and 21 (her superannuation) on the balance sheet, with a total value of $327,602. If she were to retain all of the funds currently in the B Bank account, she would receive non-superannuation assets and superannuation to the value of $441,602.
In order to achieve 75 per cent of the single pool, the respondent would require an additional $17,570.50. However, in circumstances where she has consistently prosecuted the relief contained in her Amended Response to an Initiating Application since it was filed on 19 November 2022, and the manner in which the final hearing of this matter proceeded, I am not satisfied it would be just and equitable to make an order greater than that sought to which the applicant had notice.
Accordingly, I shall order that the applicant do all things as are necessary of him to transfer his rights, entitlements and interests in the parties’ joint B Bank account to the respondent within 14 days of this judgment. I am otherwise satisfied that it is just and equitable for no further order for the adjustment of property to be made.
Section 106A relief
During the course of submissions I raised with the parties the making of an order for a registrar of the Court to execute any B Bank document on either of their behalf in the event of a failure to comply with the order adjusting that joint account balance between them. The respondent sought such an order. The applicant opposed such an order, submitting that neither party had an interest in not complying with any orders or directions of the Court, rendering the proposal unnecessary. The applicant’s chronic non-compliance with orders throughout the seven and a half years of these proceedings gives me no confidence that he will comply with the final orders made in a timely manner. I shall make an order pursuant to s 106A of the Act.
Costs
The respondent in her affidavit said that she has made consistent offers to the applicant to settle financial dispute throughout the proceedings, including in the immediate shadow of their separation in 2015. She said that her most recent offer was sent to the applicant on 9 November 2022. It was further her evidence, which was not tested and I accept, that the applicant has not made a counter-offer to settle the financial dispute since 2016.
The parties have appeared as unrepresented litigants on each occasion since the proceedings first came before me in July 2022. They have previously retained lawyers and paid those lawyers’ costs for prior court events and to undertake work throughout the proceedings. I note that there is no definition of costs in the Act. Rule 1.05 of the Rules confines costs as monies paid to a lawyer, or liabilities incurred by retaining a lawyer, for professional legal services. Self-represented parties are therefore unable to recover costs for their time spent in preparing and conducting their own case (see Cachia v Hanes (1994) 179 CLR 403). Some expenses, not being fees paid to lawyers but to third-parties may be recoverable under the Rules.
I shall reserve to the respondent a capacity to make an application for costs if she is so minded or advised. In that event she shall be required to file an affidavit as to the costs she has accrued throughout these proceedings and to give such evidence as she considers appropriate as identified in s 117(2A) of the Act.
CONCLUSION
For all of the above reasons, I shall make orders adjusting the known property of the parties as set out at the forefront of this judgment.
I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 3 March 2023
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