SEDGLEY & IRVINE
[2016] FCCA 2902
•11 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SEDGLEY & IRVINE | [2016] FCCA 2902 |
| Catchwords: FAMILY LAW – Parenting proceedings adjourned by consent as parties and children are undergoing family therapy – small property pool – parties in poor financial circumstances. |
| Legislation: Income Tax Assessment Act 1936 (Cth), s.27G(b)(i)(B) Evidence Act 1995 (Cth) Family Law Act 1975 (Cth), ss.4(1), 75(2), 79(1), 79(2), 79(4), 90SB(a), 90SD, 90SM(1), 90SM(3), 90SM(4), 90SF(3) Federal Proceedings (Costs) Act 1981 (Cth), s.10 |
| Cases cited: Amador & Amador (2009) 43 Fam LR 268 Bevan & Bevan [2013] FamCAFC 116 NHC & RCH [2004] FamCA 633 Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 Kennon & Kennon (1997) FLC 92 – 757 S & S [2003] FamCA 905 Scott & Scott [2015] FCCA 2394 Masoud & Masoud [2016] FamCAFC 24 Stanford & Stanford [2012] HCA 52 Watson & Ling (2013) 49 Fam LR 303 Vass & Vass [2015] FamCAFC 51 Townsend & Townsend (1995) FLC 92-569 Kowaliw & Kowaliw (1981) FLC 91-092 C & C [1998] FamCA 143 M & M [1998] FamCA 42 Russell & Russell (1999) FLC 92-877 |
| Applicant: | MS SEDGLEY |
| Respondent: | MR IRVINE |
| File Number: | MLC 1547 of 2014 |
| Judgment of: | Judge Harland |
| Hearing dates: | 29 & 30 September 2015, 16 & 17 November 2015, 10 August 2016 |
| Date of Last Submission: | 27 September 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 11 November 2016 |
REPRESENTATION
| HEARING: 29 & 30 September 2015, 16 & 17 November 2015 Counsel for the Applicant: | Mr Penno |
| Solicitors for the Applicant: | Bevan-Rhys James |
| Counsel for the Respondent: | Ms Harris |
| Solicitors for the Respondent: | Lawcorp Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr O'Connell |
| Solicitors for the Independent Children's Lawyer: HEARINGS: 10 August 2016 Counsel for the Applicant: Solicitors for the Applicant: Solicitor advocate for the Respondent: Solicitors for the Respondent: Counsel for the Independent Children’s Lawyer: Solicitors for the Independent Children’s Lawyer: | Barbayannis Lawyers Mr Penno Bevan-Phys James Mr Bajic Lawcorp Lawyers Ms Glaister Barbayannis Lawyers |
ORDERS
Pursuant to the provisions of section 10 of the Federal Proceedings (Costs) Act1981, the Court CERTIFIES THAT, in the opinion of the Court, it would be appropriate for the Attorney General to authorise a payment under that Act to the wife and husband in respect of such part as the Attorney General considers appropriate of the costs incurred by the wife and husband in relation to their attendance on the third day of the final hearing on 1 October 2015.
The mother have sole parental responsibility for the children X born (omitted) 2004, Y born (omitted) 2008 and Z born (omitted) 2009 (“the children”).
That within 60 days of the date of these orders each party shall do all such things and execute all documents necessary to transfer the property situated at and known as Property B being the whole of the land contained in folio identifier lot (omitted) volume (omitted) (“the property”) to the sole name of the the wife at the cost of the wife; and
Simultaneously with the transfer pursuant to order 3 above the wife shall pay all monies necessary to discharge and remove all mortgages, charges, encumbrances and all other liabilities, whether in law or equity for which the husband bears any actual or contingent liability at the date of these orders.
Simultaneously with the transfer pursuant to order 3 above shall execute all documents and do all acts and things to give effect to the order.
The wife shall indemnify and keep indemnified the husband in respect of all liabilities in relation to the property whenever and however arising.
Pending transfer of the property provided for in order 3 the wife shall be responsible for all mortgage payments, statutory rates and charges, other utilities, insurances, outgoings and expenses in relation to the property incurred prior to the date of transfer and shall make all such payments as and when they fall due and hereby indemnifies the other party in respect of all other liabilities incurred prior to the date of transfer.
In the event the wife is unable to comply with the orders within 90 days of the date of these orders each party shall do all things and execute all documents necessary to cause the property to be sold by private treaty at the earliest possible date and that the proceeds of sale be disbursed as follows and in that priority:
(a)In payment of agents commission, advertising expenses, conveyancing adjustments and legal expenses of the sale;
(b)In payment of costs incurred in relation to the nomination of a real estate agent (if any), in payment of costs incurred in relation to the nomination of a solicitor (if any) and in payment of costs in relation to determination of value or selling price by the President of the Victorian Division of the Australian Property Institute or his/her nominee (if any);
(c)Discharge of all mortgages secured on title;
(d)The net balance to the wife.
That within 60 days from the date of these orders each party shall do all things necessary to:
(a)Transfer to the sole name of the wife of the motor vehicle (omitted) registration number (omitted) at the cost of the wife; and
(b)Simultaneously with the transfer, discharge of all liability of the in relation to this motor vehicle at the cost of the wife;
AND the wife hereby indemnifies and shall keep indemnified the husband in relation to all liabilities in respect of the motor vehicle whenever and however arising.
That pursuant to Section 78 Family Law Act that each of the husband and the wife shall be and hereby are declared to be the sole and absolute owners at law and in equity of:
(a)all items of furniture, furnishings, personalty, chattels and jewellery;
(b)all monies (whether held in cash or in deposit with any financial institution);
(c)any motor vehicle;
(d)all contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent or expectant;
in the possession, custody or control or each or in which either has an interest which are not otherwise dealt with in these orders.
That in the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these Orders then pursuant to Section 106A Family Law Act 1975 (Cth) that the Registrar of the Federal Circuit Court of Australia, Melbourne Registry shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same.
IT IS NOTED that publication of this judgment under the pseudonym Sedgley & Irvine is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 1547 of 2014
| MS SEDGLEY |
Applicant
And
| MR IRVINE |
Respondent
REASONS FOR JUDGMENT
At the commencement of the hearing on 29 September 2015, the parties agreed that it would not be in the children’s best interests to make final parenting orders at that stage. The family had recently started family therapy. It would take some months for the family to work through that process. It would be necessary to obtain an updated family report. As it turned out the father did not participate in the family therapy. The Independent Children’s Lawyer (“ICL”) was excused from remaining at his request. The property part of the hearing too significantly longer than counsel had initially indicated. In part this is because of the lengthy cross-examination of the wife with respect to family violence and the husband’s financial records. The property aspects of the matter were not able to be completed in the allocated time.
The parties wished to proceed with the final hearing with respect to property issues. The pool is modest and it would add to the stress both parties are under to have the property matters unresolved for another year. The wife seeks an additional adjustment as referred to in Kennon & Kennon (1997) FLC 92 – 757 (“Kennon”).
The matter proceeded on 29 September 2015. The matter was due to continue on 1 October 2015 but was unable to because I was unwell. In those circumstances where the parties attended Court but it was unable to proceed due to no fault of theirs it is appropriate that the Court make an order pursuant to s.10 of the Federal Proceedings (Costs) Act 1981 (Cth).
The hearing continued on 16 and 17 November 2015. The parties’ cross examination was not completed and the matter was adjourned part-heard.
The hearing continued on 10 August 2016. After the completion of the husband’s cross-examination, with the assistance of the ICL the parties resolved most parenting issues on a final basis. The outcome was consistent with the family report and in my view is in the children’s best interests. It is to the credit of both parties that they are able to resolve these issues. The only outstanding issue with respect to the parenting issues is the allocation of parental responsibility.
Background
The parties married in accordance with (omitted) law on (omitted) 2003. For convenience I will refer to the parties as husband and wife. The wife was born on (omitted) 1973. She is 42 years old. The husband was born on (omitted) 1979. He is 36 years old.
The parties have 3 children. X born on (omitted) 2004, aged 12; Y born on (omitted) 2008, aged 8 and Z born on (omitted) 2009, aged 6.
The parties separated for the final time on 11 January 2014. The parties were divorced in accordance with (omitted) law in March 2014.
Judge F Turner made declaratory orders with respect to the parties’ de facto relationship. There is no dispute between the parties that the Court’s jurisdiction with respect to de facto relationships is enlivened.
Family violence
The wife acknowledged in cross-examination that she can speak and read some English. She had the assistance of an interpreter. It is not usual for a litigant to need the assistance of an interpreter in this circumstance.
The husband’s counsel complained that the wife had not particularised her Kennon claim. The wife’s counsel relied on the incidents set out in her affidavit. The wife does describe several instances of violence during the relationship in her affidavit at [11] to [63]. But she gave more detailed evidence in cross-examination in response to open ended questions inviting her to describe the incidents she alleged in detail.
In her affidavit the wife gives evidence that she had to leave the home on three occasions because of the husband’s aggressive, threatening and violent behaviour. She says the first occasion was in (omitted) 2004 when she was pregnant with their first child. She says the husband hit her with a belt over an argument about a telephone bill. The belt was long and he hit her across both thighs. She was sitting on the bed and he was standing in front of her.
The wife says she fled the home and stayed with her mother. She says they separated at that time and she collected single parent payments as the husband did not give her any financial support. She says she attended a family meeting with the husband’s father, his uncle and her uncle to discuss her grievances. The husband promised not to abuse her anymore and they reconciled. The husband denied hitting the wife and said the wife stayed at her mother’s home for cultural reasons.
It was put to the wife that it is traditional in (nationality omitted) culture for the mother to return to the home of her mother upon the birth of a child. She said it is an option but not essential. She denied that she went to her mother’s home because of her cultural beliefs.
The wife says the husband’s behaviour did not stop and in 2006 when the husband abused her again she called police and went and stayed at her mother’s home. She says that the husband’s uncle came to see her and wanted her to return home. She gave detailed answers in cross-examination about this incident. She became emotional as she gave details about the children being present and crying.
In (omitted) 2008 she was pregnant with Y. She says they had an argument over the respondent inviting his extended family to the home. The wife says she told the husband that she was exhausted from working and from the pregnancy. She says the husband pushed her onto the bed removed his belt and hit her with it repeatedly whilst yelling at her saying “you want to expose me in front of my family, I have already invited them”. The wife moved out and stayed at her mother’s home after the family party. She says she rang Centrelink and was told that she was entitled to a parenting payment and has been receiving that since 13 February 2008. She and the children remained living with her mother June 2008 when she moved back into the former matrimonial home.
The wife says she has a scar on her back from that incident. She says she did not go to a doctor. She thought it was normal. She described the scar as a thin two inch scar like a scratch in the middle of her back.
In May 2010 the husband verbally abused and assaulted her. She says he called her “a piece of shit” and hit her with a clenched fist to her head. X saw him and cried out for the husband to stop. She had bruising to her face. She called the police. The husband’s father was upset that the wife called the police and told her to talk with community elders. She did so and said she wanted a divorce. She says the Elder in the (omitted) Community told her not to press charges and not apply for an intervention order so she did not.
The wife was cross-examined about this incident. She disagreed with the proposition that the husband was preparing dinner and she tried to take over. She says she was preparing dinner. She says three police officers attended the home, two males and a female. The female officer spoke to her. The wife says she had a hijab around her head so the police officers could not see her injuries.
The husband’s counsel put to her that if she was really afraid she would have told the police. The wife answered that she could not tell the police because he threatened her and it was bad in her culture and tradition. The wife says she refused to sign a complaint because she thought he would go to gaol. She says the police officer told her that women like her don’t learn.
The husband’s counsel put to her that the police recorded that there were no injuries and that they did not have concerns. The wife said she told them they argued but she was wearing the hijab and the police officer was upset with her when she would not sign the complaint. At one point during cross-examination she said she told the police the husband hit her then a few minutes later she said she did not tell them. This inconsistency does not detract from the general tenor of her evidence with respect to family violence.
She describes talking to her brother and further discussions with community elders who told her not to contact police when there were problems but to contact the elders. They would not grant her a divorce as the husband promised not to hit her again and if he did he would divorce her. She says if she left him she would be considered a sinner and would be ostracised from her family and the (omitted) community.
The wife says that the husband’s behaviour worsened towards her and the children and 2011 and 2012. She says he would be grumpy with the children if they disturbed them and if the boys hugged her he would hit them saying “that is women’s behaviour”.
The wife gave other examples. I will not set out all of her evidence. She was asked about an incident where the husband grabbed her around the neck. She said that he did not pull her but was holding her as she was standing against the kitchen bench and then he pulled her from behind and punched her in the left side of her head. She acted out what she meant in the witness box. She was then asked where she bled and she pointed to the left side of her nose. He hit her with a closed fist. She said he hit her three times. There was a bit of blood and she was crying. She says he stopped hitting her when he saw the blood. She said she was frightened for her life.
The parties are (religion omitted). The wife says that she tried to end the marriage several times after the husband was violent towards her. She approached her brother in this regard. He spoke to members of the husband’s family. The wife says the husband was counselled and the husband promised not to hit her again but he would be violent again. The wife depicts a traditional marriage where the husband discouraged her from working outside the home (she was working in the early years of the marriage) and from studying English. She says he told her that her job was to look after the children.
The wife was cross-examined about her affidavits and why her earlier affidavits did not refer to incidents of violence she disclosed in her trial affidavit. She said her first lawyer did not ask her. She said she has never been to Court before and did not know what should go in an affidavit. She agreed that there were incidents of violence not in her affidavit and said that the more details her lawyer writes the more it costs her and she could not afford it.
The wife’s counsel cross-examined the wife at length about the allegations of violence in her affidavit. She asked for the wife to describe the violence in great detail. She enhanced the evidence in her affidavit. Her oral evidence is consistent with her affidavit but more detailed and vivid. The wife acted out some of the violence in Court. She became emotional as she did so. It was compelling evidence.
The husband’s counsel suggested to the wife that if she was really afraid of the father she would have told the police. That shows a real lack of understanding of the dynamics of family violence and the cultural issues at play for this family. It also disregards the cultural issues at play.
The wife’s counsel put to the husband the wife’s evidence about specific incidents of family violence. The husband denied that any of them happened. He also denied that there was ever any intervention by the elders in their community. The husband denied that he was ever violent.
On 11 January 2014 the husband was staying at a (omitted) hotel in (omitted). The husband says he was staying there because he was planning to leave the relationship. He says he was shocked when the wife turned up at the door. He says she pushed her way through and throughout the room and the bathroom. The wife says she went there because she needed proof of the husband’s infidelity in order to obtain an (religion omitted) divorce. I prefer the wife’s version of events to the husband’s. Even on the husband’s version it is consistent with the wife’s explanation that she would attend and search the room.
The husband was cross-examined about the wife’s brother’s visit to Australia in 2012 and the fact that he gave her brother an iPad. For the first time in cross examination the husband said that the wife’s brother came out to Australia for political reasons, that he was a freedom fighter. He says he bought the wife’s brother an iPad as a gesture of goodwill and thought it would be more useful for him to have an iPad in political meetings instead of a laptop. His explanation lacked credibility. I find it is more likely that he bought an iPad for the wife’s brother to try and keep him on side given the wife had been complaining about her treatment to him and the wife was wanting a divorce.
I reject the written submission made on behalf of the husband in so far as they relate to the family violence and the wife’s credibility.
Maternal grandmother
The maternal grandmother swore an affidavit in support of her daughter’s case and was cross-examined. In her affidavit she says he husband started abusing the wife when she was pregnant with X. She says the wife came to stay with her whilst she was pregnant and went into labour at her home. She says she and her other daughter took the wife to hospital. She denied that the wife was at home and that the husband took her to hospital. She says the wife stayed with her for 5 months.
She says she has seen her daughter with her face swollen, bruises to her eyes and that her daughter also complained about headaches after being hit. She says the husband took the wife to the hospital on one occasion when he had hit her on the head but when the hospital tried to arrange scans he took her home.
In her affidavit she refers to the incident in May 2010. It says the wife called her and said that the husband had hit her very badly. She and her younger daughter drove to the home and when they arrived the wife’s face was swollen. She said the police had been there and had left. She says she told the daughter that she would call the husband’s father and ask for a divorce. She says the husband’s father attended the home and said that he could not ask their son to give her a divorce it was decided that the matter should be discussed with the wife’s elder brother and the elders.
The maternal grandmother says she has seen the husband grab X and forcing him to do things he did not want to do and whenever she complained the husband would say to her “he is not your son he is mine and I can do anything I want”. She referred to an incident where X refused to eat and the father grabbed him and took him to his bedroom and forced him to eat. She says she saw X standing before his father with a mouthful of food crying.
The maternal grandmother says that after the husband left his employment at (employer omitted) he was at home all the time and that the younger children would annoy him. She says the children would stay at her house a lot of the time. She says when she told the husband that he had to be patient with the children he said the children had to be scared of you otherwise they do not learn. She says husband got more aggressive after his eye operation.
The maternal grandmother’s evidence is consistent with the mother’s evidence.
Kennon argument
The wife seeks an adjustment in her favour taking into account the family violence and relies on the Full Court decision of Kennon & Kennon (1997) FLC 92 – 757 (“Kennon”). The Full Court said:
[O]ur view is that where there is a course of violent conduct by one party toward the other during the marriage which is demonstrated to have had a significant adverse impact on that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties respective contributions within s79.
The comments I made in Scott & Scott [2015] FCCA 2394 (“Scott & Scott”) are relevant here. In that case I was satisfied that the wife had been subjected to family violence by the husband but the wife’s evidence did not show her contributions were made more arduous by the husband’s violence.
As I observed in Scott & Scott, the Court is not entitled to assume that the husband’s violence has made her contributions more arduous. This has been made clear by the Full Court. The comments in the Full Court unreported decision of S & S [2003] FamCA 905 are also applicable here:
[40] There is no doubt that domestic violence may be a relevant factor in assessing contribution. The difficulty as presented in this case and many others is that inadequate evidence makes a proper assessment by the trial Judge either very difficult or impossible.
…
[47] An insufficiency of evidence in the present case leaves the Court with a limited ability to deal with allegations in the context of section 79 proceedings. As Kennon has established, it is necessary to provide evidence to establish:
• The incidence of domestic violence;
• The effect of domestic violence; and
• Evidence to enable the court to quantify the effect of that violence upon the parties’ capacity to "contribute" as defined by section 79(4).
[48] We do not agree that the evidence in this case could properly have led to an adjustment pursuant to section 79. There was no suggestion by counsel of the wife that his Honour did not correctly summarise the evidence in relation to this topic. The particular deficiency apart from those referred to by the trial Judge is the complete absence of evidence as to how the husband’s conduct affected her ability to contribute.
Whilst I am satisfied that the husband engaged in a course of violent conduct. I have no evidence to satisfy the other requirements set out by the Full Court, that being a link between the violent conduct and the wife’s contributions.
I am not entitled to assume that by virtue of there being family violence the wife’s contributions have been made more arduous. It may well be that the principles laid down in Kennon should be revisited but that is a matter for the Full Court or the legislature. The wife’s submissions were silent on this point.
Contributions
The parties met when the wife was an (omitted) student and was working full-time with (employer omitted). She says she earned a salary of $1,200.00 net per fortnight.
The husband was working full-time at (employer omitted).
The wife says that throughout the relationship the husband was secretive about his finances. She says they never had a joint bank account.
The wife took maternity leave on (omitted) 2004 and returned to work with (employer omitted) in early 2005. In 2007 she was transferred to work for (omitted) within the (employer omitted). She says her mother and sister helped look after X whilst she was at work.
In early 2007 the parties purchased their home at Property B for $275,000. They obtained a homeowners grant and according to the wife, they both contributed to the $20,000 deposit. The husband says he solely contributed to the deposit. I am satisfied that both contributed to the purchase of the property. Both had been working and they bought the property well into their relationship. They purchased the home in joint names.
The husband says that in 2009 he refinanced the mortgage into his own name. He says that the wife was not working and expenses were high. He says he had to refinance the mortgage into his own name as the wife was not working. The wife says the husband told her that he was refinancing to get a lower interest rate but did not tell her when she signed the documents that it was also transferring the property into his own name. She says she did not understand the documents that she signed. The husband claims that the wife asked him to take her name off the mortgage as she did not want to be liable for it. I find the wife’s version is more credible than the husband’s. What is much more likely is that he arranged to refinance the property and did not explain the details to the wife. He confirmed in evidence that he kept his finances separate during the relationship.
In March 2008 the wife commenced the second period of maternity leave for six months. She returned to work four days a week at (employer omitted).
On 9 November 2008 the wife was made redundant. She received a redundancy payment of $25,900. She says she used those funds to benefit the family including maintaining and improving the home. The husband says she used this money to support her sister and her sister’s children whilst they were living in Australia for 12 months trying to seek a visa. This was not put the wife when she was cross-examined.
The wife says in 2009 she resumed her studies at (omitted) University and around this time, discovered she was pregnant with their third child. She says the husband did not approve of her studying and she discontinued after their daughter was born.
The wife says that in April 2009 the respondent asked her to sign documents to refinance the home loan at a lower interest rate. One of the documents she signed was the transfer of land, transferring her interests in property to the husband. She says she did not fully understand what was happening. He received a redundancy payment of $54,000.00.
In July 2009 the parties sold the wife’s (vehicle omitted) for $11,000 and bought a (vehicle omitted) as they needed a bigger family car. The husband was able to obtain a significant discount through his employer. The husband also had a (vehicle omitted) on lease from (employer omitted).
The wife contends that the husband was suspended from his employment for two months because of an altercation with his team leader. She says she sold her jewellery received at their wedding for $2700 and used that for mortgage instalments and groceries.
The husband gave his evidence in a flat manner. He was mostly passive.
This husband suffered a serious eye injury. He is permanently blind in his left eye. The husband did not return to work at (employer omitted) and was made redundant in 2012. The husband received income protection payments until he was made redundant.
The wife says she believes the husband has many bank accounts and spreads money around. However she also gave evidence that the husband was having difficulties paying rates and other bills later in the marriage.
Orders made on 16 April 2015 required the husband to provide a written authority to the wife addressed to the bank to allow her access to the mortgage account. The husband avoided answering the question in a straightforward manner but eventually conceded that he did not comply with that order.
The husband’s evidence during cross-examination on this issue is unsatisfactory.
Under cross-examination the husband said he was paying rent of $400 a week for student accommodation in (omitted). He said his family is supporting him financially. He said living with one of his family members did not work out. Prior to that he was living in an apartment in (omitted) and was paying rent of $550 a week.
The husband says that he is blind in one eye and has very limited vision in the other. He annexes medical certificates to his affidavit from the time he received a redundancy payment and payout from his superannuation fund. He annexes a series of text messages including text at page 50 of his affidavit where he says “I have the flu and my eyes are aching. Cannot drive a car. I will see the children next week.” The husband being able to drive and also being able to read bank statements during the course of his cross-examination is not consistent with being almost blind. The medical certificates which appears at page 100 of the husband’s affidavit filed on 29 September 2015 says that the husband is disabled as defined in section 27G(b)(i)(B) the Income Tax Assessment Act1936 (Cth) due to left eye total blindness and headaches and right eye distorted vision because of glaucoma and depression. The medical certificate refers to the requirements under the section of the Act which is that the disability is likely to result in the taxpayer not being able to be employed in the capacity of which the taxpayer is reasonably qualified for by education training or experience. This does not mean that the individual is permanently incapacitated for any of the type of work. The only thing the medical certificates establish is that the husband satisfied the criteria under s.27G(b)(i)(B). It is reasonable to infer that the husband will have some restrictions on the type of work he can do due to his left eye blindness but his own evidence is that he drives with an unrestricted license. He was able to read bank statements; he was cross-examined about and did not need any extra breaks during the hearing.
A second doctor has signed the certificate. It is clear from the pages following that the applicant received the whole of his superannuation entitlement with (employer omitted) employee’s superannuation trust. In addition to this he received payment for a permanent disability benefit pursuant to the insurance attached to his superannuation entitlements.
I am not satisfied that the husband does not have an earning capacity. The husband has not provided any expert evidence about his medical condition and work capacity.
In his affidavit filed 29 September 2015 the husband addresses his expenditures since 2012. He says that on to August 2012 he withdrew the sum of $17,939.70 to pay for maintenance and renovation work on the home and credit card bills. He said he also paid out the balance of the personal loan he had with (omitted) Bank which he took out the year before. He says he continued to pay for household and other expenses.
After the husband was made redundant he started studying a (course omitted) with (omitted) School. He says he completed some modules but was unable to complete the course because of his vision. The husband denied receiving an email from (omitted) offering him employment in November 2013. He says the first time he saw that email was when it was annexed to the wife’s affidavit. He suggested that the wife or someone else visiting the home constructed it.
The husband says he has paid $41,000 in legal fees.
At [54] of the husband’s trial affidavit, he says on 13 January 2014 after he moved out of the home he transferred the sum of $230,000 from his (omitted) Bank home loan account in his (omitted) Bank account. A bundle of those statements were tendered and marked as Exhibit B. His account of how he expended that sum at [54] lacks specificity and is all in round figures. The husband was cross-examined at length about his expenditure. The original source of funds was his superannuation and TPD payout. Both accounts were in his sole name. He could have left the funds in the mortgage account to reduce the interest and they could have been withdrawn as needed.
The husband withdrew the sum of $16,680 on 17 January 2014. He said this was the lump sum rent in advance. He says that was a condition of the rent and that if he left earlier than he in fact did then he would have received some of it back. The husband does not provide any documents with respect to that that and it seems a very odd arrangement.
He says that he withdrew $50,000 on 27 February 2014 and placed this in his solicitor’s trust account for legal fees. He says he only spent $41,000 of that on legal fees. He then said that the total amount that he has placed in the solicitors trust account is $91,000. Again, it is highly unusual to pay such a significant sum into the solicitor’s trust account at the beginning of a matter. He then said he got some of the back for living and other expenses. He says the $30,000 he was required to pay to the wife is an interim payment came from that source.
There are frequent cash withdrawals of $1,000. His explanation was generalised and vague. He said he had living expenses of gas, electricity and water, expenses for the children and repayment of debts to family members.
He withdrew the sum of $14,560 and 25 August 2017 and claims that that was a lump sum payment for rent.
When asked to agree with the proposition that the wife has an interest in the former matrimonial home, the husband’s initial reply was “well, subtlety yes”, he then said yes, because she was the mother of his children. It was evidence that he saw his TPD payment as being solely his. He said it was to last for a period of time. However it appears from his expenditure that he had little regard for that. That is if the Court accepts that he has expended the funds in the manner he has said it he has. He conceded that he did not consult with the wife about his expenditure of these funds.
The husband claims that he paid $1000 to his brother to pay his car registration. In November 2014 he says he paid $3000 to his sister as she had been supporting his mother overseas and that he in fact owed his sister a bit more than that. The closing balance on 2 June 2015 was $24.30.
His other bank accounts were also tendered. He regularly shifted money between accounts. The (omitted) Bank home loan account shows he received $57,000 for his redundancy, $172,000 for TPD and $52,000 payout from his super.
The husband says he has spent all of the money he received. He claims he paid $5,000 to a friend he owed money to.
He claims he owed another $2,000 to family members, $2,000 for fines and $4,500 for rates which he said built up.
The husband took a holiday on his own to Queensland in December 2013. He says he was stressed because of his injury. He says he wanted to get away to think and make a decision about moving out. His bank records show that he spent more than $5700 on that trip.
The husband claims he paid $25,000 to Mr A for the repayment of the debt he owed him. I am not satisfied that this debt exists. The husband provides no detail about it. He did not call Mr A as a witness. In cross examination he said Mr A was a friend and work colleague. He said he borrowed the money when he was struggling to meet mortgage and living expenses and repairs on house when he was working from (employer omitted). He said his friend lent the money to him in 2012 and in his culture it is an issue of trust. There was no independent verification. He did not produce the bank statements showing the money being paid to his friend. He said that the withdrawal of $35,000 on 1 April 2014 was for the $25,000 repayment to his friend and $10,000 to (omitted) to pay the balloon payment on his car. The statement shows withdrawal of $20,000 from (omitted) and $15,000 from (omitted) on the same day it appears that they were over-the-counter withdrawals. It is extraordinary that he would withdraw such large sums of cash to pay these amounts particularly with respect to (omitted).
The husband claims that he paid $19,000 in mortgage repayments up to April 2015. He made no attempts in his affidavit to show how he arrives at that figure. He says he paid $5000 in fines for the motor vehicles for himself and the wife. He says he paid $4500 in legal fees for the coronial inquest into his brother’s death. He claims he has paid $40,000 in rent since he left the home. He paid $34,000 for living expenses for himself and the wife’s child support and then he makes no attempt to break down this figure. He again claimed that he has been paying child support from 2009 until the wife asked that he stop paying after she receiving the $30,000. I do not accept the husband’s evidence.
He claims that he needed the personal loan to repay family debts dating back to 2008 and that his expenses for the home including improvements on the home was more than that which is why he borrowed money from his friend. It is suspicious that the figures he provides are in round figures given the types of payments is referring to including registration and insurance not all of those figures would be rounded up in that way if he had documentation to verify. It is all the more suspicious when he was on notice for many months and a court order had been made which he simply did not comply with with respect to the financial dealings with the lump sums.
I found the husband’s evidence about his financial dealings to be lacking in credibility.
The husband said he moved the money around his accounts because the mortgage was a joint account. That clearly is not correct as he refinanced the mortgage. He then said he is always moved money around and said it was just a habit.
The husband gave evidence that the TPD payment was payment to him for compensation for lost income because of his injury not money that they generated as a couple. Given his clear understanding that the money was for lost income it seems extraordinary on his version of events that he could have spent the whole amount even allowing for legal expenses in such a short period of time. I found the husband’s evidence about his expenditure highly unsatisfactory. The husband did not call any supporting witnesses with respect to his alleged loans from a friend and family members. It is particularly significant that he did not call any family member to give evidence despite his claim that he is reliant on the assistance of his family having completely exhausted his funds. The husband regularly withdrew large sums of cash. I am not satisfied that he has in fact spent all of his cash although I cannot quantify it.
The wife was a more credible witness than the husband. Throughout his evidence the husband spoke in a very flat manner and avoided eye contact with anyone.
Written submissions of the parties
The husband’s written submissions erroneously referred to section 140(2) of the Evidence Act 2008 (Vic). The Commonwealth Evidence Act applies.[1] This subsection is the same. The husband’s submissions correctly identified that the dislike the parties have for each other is palpable and goes on to say that the wife makes “horrendous allegations” which would ordinarily lead to criminal charges. The thrust of the argument is that the Court should not make findings of such serious allegations of family violence lightly. I certainly accept the proposition that allegations such as these need to be properly tested and the findings should not be lightly made.
[1] Evidence Act 1995 (Cth).
I do not accept the proposition that the allegations the wife makes would ordinarily lead to criminal charges. That misunderstands the nature of family violence, the common under reporting of such violence to authorities and the higher barriers for people of non-English speaking background to making those reports. It is well established that parties who allege family violence do not need to have corroborating evidence for family violence to be established. As the Full Court of the Family Court said in Amador & Amador (2009) 43 Fam LR 268 at [79] and [80]:
Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission.
The victims of domestic violence do not have to complain to the authorities or subject themselves to medical examinations, which may provide corroborative evidence of some fact, to have their evidence of assault accepted.
The husband refers to [17] of the family report and the report writer’s observation that the mother was not able to provide details or context to her assertions as to family violence. The evidence of the family report writer was not tested due to the parenting matters (except for the issue of parental responsibility) being resolved.
The husband submits that the wife raised new allegations during cross-examination that were not her affidavit material. Whilst this is true it is also the case that the husband’s counsel tried this to ask a series of detailed open ended questions drawing out that evidence from the wife rather than asking closed questions. Having made that forensic decision the husband cannot complain that the wife provided that evidence. There was a detailed lacking in both parties’ affidavits.
The husband also points to the wife’s evidence as to her attendance at the hotel on (omitted) 2014 to confront the husband’s visit this evidence “entirely inconsistent with conduct expected of a victim of domestic violence.” Again this submission shows a lack of understanding about family violence. It expects a person to behave in a particular way at all at all times. It is expecting the wife in effect to always be on her best behaviour. It is also implicit from that submission that victims of family violence act in a particular way. That again does not reflect reality.
The husband is also critical of the wife with respect to her receipt of Centrelink benefits in circumstances where the husband says she was not entitled to it, failing to provide all of her income to the tax with respect to her (omitted) business and failing to produce a text message which was the subject of a call for production during cross-examination. Certainly failing to produce the text which the wife says she had from the husband telling her to throw the degree in the bin in answer to the call to produce does not assist the wife but nothing turns on that particular issue.
With respect to the Centrelink benefits. It was not clear to me as to whether the wife was talking about family tax benefits which people are entitled to or whether or not they are in an intact relationship subject to the means test or single parenting payments. The husband’s own evidence is inconsistent about when the parties were in a relationship and when they were not. The family report writer records the husband telling her that they were separated under one roof since 2009. In the husband’s affidavit filed on 6 March 2014 he says at [2] that they separated in late 2008 the continued living together until early January 2014. In his second affidavit filed on 15 April 2014 at [2] he says he wishes to clarify that they discussed separating in late 2008 and officially separated on or about March 2009. In his affidavit filed on 29 September 2015 he does not refer to separating in 2009. At paragraph 49 he says that the day they separated he previously talk to Ms Sedgley about moving out says he arranged to stay the hotel which the wife turned up to.
It is clear that as at separation the husband had sole control of the sum of $230,000 and that that some is referable to contribution by the husband referable to his injury and compensation payment. The injury occurred late in the relationship whilst the wife may be able to claim a small contribution to this payment with respect to caring for the husband it would be minor. The wife’s submissions do not recognise this.
The husband submits that his contributions as at separation was 70%. Contributions would have reduced by 10% and that the wife should receive an adjustment pursuant to s.90SF of the Family Law Act 1975 (Cth) (“Family Law Act”) such that her overall percentage adjustment should be 55% in her favour.
The wife submits that the compensation payment of $172,000, the redundancy payment of $54,000 and the superannuation payment of $59,000 were all matrimonial funds. They were received in 2012. Some were used for living expenses prior to separation. By the time of separation approximately $230,000 was left.
I accept the submission that these funds relate to the marriage and thus are relevant to the property division.
Parental responsibility
The only parenting issue I am asked to determine is the allocation of parental responsibility. The husband submits that concerns have been expressed by the family consultants in this case that the mother has not demonstrated the capacity to facilitate and promote the relationship between husband and the children. In those circumstances the husband says it would not be in the children’s best interests for the mother to exercise sole parental responsibility and whilst acknowledging that the communication is poor, they have been able to communicate effectively by text message to organise time between the father and the children.
The mother submits that the father has only made sporadic attempts to spend time with the two youngest children over the past several months and the oldest child continues to refuse to see his father. It is the mother’s case that the children, particularly their oldest child X were also subjected to family violence.
The father’s complains about the mother failing to facilitate the relationship cannot be sustained in circumstances where the father failed to attend family therapy and has resolved the spend time with arrangements.
The parenting orders the parties have consented to only provide for the father to spend the daytime periods with the younger two children and time in accordance with X’s wishes. The father acknowledged to the family report writer that he had not seen the younger two children for some months and did not appear to understand the impact that this would have on the children. The father told the family report writer that he wanted to participate in decisions with respect to the children’s schooling, he acknowledged that he has had little involvement in the children’s schooling in the past. The family consultant also recorded that the parties have shown little capacity and willingness to work together and that communication has been limited to arrangements for the children to spend time with the father.
The ICL submitted that the wife should have sole parental responsibility for the children and should be required to advise the father of any serious illness or injury to the children and keep the father advised of any significant educational matters. The father should be permitted to attend all school events the parents are normally invited to.
I am satisfied that the presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility has been rebutted due to the significant family violence. I do not think that an order for equal shared parental responsibility would be workable with these parents. The father has had little active role in these decisions previously and is only having spent time arrangements with the children. These factors combined with the family violence lead me to conclude that it would not be in the best interests of the children for their parents to share equal parental responsibility.
Section 90SF(3)
The parties are of similar ages. They are in good health apart from the husband’s eye injury.
The wife is working casually part time and is also in receipt of Centrelink benefits. There is no evidence to support that she can earn significantly more than she does now although she may be able to increase her hours, particularly as the children get older. I find the husband is likely to have some capacity for work. The wife will have the overwhelming responsibility for the children. The husband will only have day time contact with the children.
The wife is not receiving child support. It is uncertain as to whether or not the wife will receive child support in the future.
The property pool is very modest.
I am satisfied that the s.90SF(3) factors favour the wife.
Legal Principles with respect to property
There is no dispute between the parties that they were in a de facto relationship of more than two years duration. Section 90SB(a) of the Family Law Act is satisfied. Section 90SD being the geographical requirement is also satisfied.
Part VIIIA of the Family Law Act is the part of the Act dealing with property, spousal maintenance and maintenance agreement. The major provisions relating to marital property division are contained in sections 90SM(1); 90SM(3), 90SM(4); and 90SF(3) of the Family Law Act.
Pursuant to section 90SM(1) the Court is authorised to make such orders as it considers appropriate in order to alter the interest of the parties to a marriage in relevant property.
The expression “property” is defined in section 4(1) of the Family Law Act in relation to the parties to a marriage or either of them as meaning “…property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.”
Pursuant to section 90SM(3) the Court is actively prevented from making such an order unless it is satisfied that it is just and equitable to do so in all of the circumstances prevailing. This follows from the use of the prohibitory words “shall not” in the relevant section.
Section 90SM(4) provides the mechanics of how a Court is to make an order altering marital property interests.
Paragraphs (a), (b) and (c) categorise contributions made by marital partners, which are relevant. Paragraph (d) directs the Court to take into account any order regarding the earning capacity of either party to the marriage concerned.
Paragraph (e) directs the Court to consider a list of matters contained in section 90SF(3), which are germane to spousal maintenance or the prospective positions of the parties concerned by reference to their respective financial resources, means and needs. Finally, paragraphs (f) and (g) apply to child support and previously made parenting orders, as relevant. There is some overlap between these various provisions and not all will be applicable in every case.
The written submissions for the husband contend that the husband is now almost totally blind and will not be able to work again. That submission is not supported by the evidence.
The wife says that the husband studied a (omitted) course in 2012. She says that he was offered employment on (omitted) 2013 with (employer omitted) at (omitted) as a (position omitted). She annexes a copy of the offer of employment to her affidavit filed on 21 September 2015.
Since April 2015 the wife has been paying the mortgage as the husband stopped paying it. She remains living in the home with the children. She wants the opportunity to keep the home. She says her mother and sister are prepared to help her. She is reliant on Centrelink benefits and a small income from part time work. She says she cannot work more because of her parenting responsibilities. As a result of the parenting orders the wife will have the vast majority of the care of the children even if the husband takes up all the opportunities to spend time with the children as provided for in the orders. He has not done so in the past. She said she has obtained approval to refinance the mortgage up to $300,000.
It was put to the husband that he is putting off seeking employment until the case is finished and that he is capable of obtaining some work. The husband denied this but I find it likely that he does have some capacity to work given that he is able to drive and has a driver’s licence without any conditions and given he had no apparent difficulty reading bank statements when he has been cross-examined on them. Whilst he received the TPD payments and there are medical certificates in support of that there is no further medical evidence or assessment of his capacity to work. There is also the fact that he undertook some study and there is the email referring to an offer of employment. I reject the husband’s suggestion that the wife fabricated that email.
The husband has failed to comply with orders. He failed to comply with the orders made on 16 April 2015 which required him to give the bank a written authority authorising the bank to communicate with the wife. This is necessary because the title and mortgage is in the husband’s sole name yet the wife is paying the mortgage. The husband says he called the bank and instructed his solicitors to write to the bank. That is not compliance with the orders. The bank is unlikely to act on a letter from a solicitor without written authority from the client. It would have been a simple thing for him to comply. It does him no credit that he did not. He also did not comply with order 2 of the orders. He has been on notice for months that the mother was not satisfied with his explanations for how he utilised the lump sum he received totalling $230,000. The husband’s counsel tried to rectify this by seeking to leave to file an affidavit addressing that issue. She did not seek to do this at the first day of the hearing but when the hearing resumed some 6 weeks later. It was far too late. There will be issues with respect to the father’s failure to adequately explain what he did with those funds. He has been on notice that this was an issue for several months. It would be utterly unfair to the wife to let the husband rely on an affidavit so late. I did not allow the husband to rely on the affidavit.
Until the decision of Stanford& Stanford [2012] HCA 52 (“Stanford & Stanford”), the position in respect of the process to be applied to the resolution of matrimonial property cases was said to be well settled with a preferred approach as set out by the Full Court in Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 at 78,386 [39].
The High Court of Australia (“High Court”) considered the operation of section 79 (which is almost identical terms to s.90SM) in the matter of Stanford & Stanford.In the case, the majority stated at [35]-[36] that:
It will be recalled that s 79(2) provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order". Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
The expression "just and equitable" is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.” [Footnotes omitted]
The High Court found three fundamental propositions with respect to the application of section 79, which can be summarised as follows:
a)Firstly, in order to ascertain whether it is just and equitable to make a property settlement order, it is necessary to identify the existing legal and equitable interests of the parties in the property. The High Court emphasised the word existing;
b)Secondly, although section 79 gives the Court a broad power to make property settlement orders it may not be exercised in an unprincipled fashion. There must be no assumption that the parties’ interests are or should be different to their existing interests; and
c)Thirdly, when considering whether making a property settlement order is just and equitable the Court must not assume that one or the other party has the right to a property adjustment order. The Court must give separate consideration to section 79(2) in addition the matters referred to section 79(4).
In Stanford & Stanford the High Court indicated that, in the vast majority of matrimonial property cases, the requirements of section 79(2) will be readily satisfied, largely as a result of a consideration of the circumstances of the parties concerned, particularly the nature of their separation. I am satisfied that it is just and equitable to make orders adjusting the parties property interests in this case.
The High Court also pointed out that what is just and equitable is different in every case.
The principles referred to in Stanford & Stanford are equally applicable to de facto property matters: see Watson & Ling (2013) 49 Fam LR 303.
Addbacks
The available property to the parties is modest. The parties agree that the value of the former matrimonial home is $375,000. The parties obtained a valuation in September 2015. Neither party has sought to update that valuation. The mortgage secured over the former matrimonial home is $262,581.65. This is based on mortgage statements as at June 2016. This leaves equity in the property of the $112,418.35.
The wife has possession of the (vehicle omitted) and she continues to drive it. It has a $700 debt on it. The husband has possession of the (vehicle omitted) and continues to drive it. Neither party has provided valuation evidence with respect the cars.
I will order that each party keep the car in their possession. The wife will be responsible for the debt on the (vehicle omitted).
The parties have a modest amount of superannuation. The husband received most of his superannuation in a lump sum payment at the same time he received his TPD payment. He has superannuation of $1,005. The wife has superannuation with (employer omitted) of $10,460. Each party will retain their superannuation entitlements as well as any funds in their bank accounts. Both parties claim to have debts to family members. Those respective debts will remain the parties’ respective responsibilities.
The property available to be divided between the parties, before the consideration of any addbacks is the equity in the family home.
Order 3 of the consent orders made on 2 October 2014 provided for the husband to pay the wife the sum of $30,000 with such sum to be characterised at trial. In the husband’s case outline he characterises this payment as being for the wife’s legal fees and characterises the sum of $41,000 being the husband’s legal fees and that these amounts should be added back to the pool. Paid legal fees from the parties’ resources during the marriage is clearly a category that is well recognised as being an appropriate addback: see NHC and RCH [2004] FamCA 633. The difficulty here is that I do not have evidence as to the wife’s paid legal fees and I am not satisfied that this sum was wholly used for that purpose. Given that this sum was to be characterised at trial or in circumstances where the wife has not received child-support from the husband and has been solely responsible for the mortgage since April 2015 whilst having the primary care of the children or satisfied that this amount should be added back.
The wife seeks that the sum of $230,000 be notionally added back to the property pool. She seeks to retains the home. The wife seeks a division of property of 80% in her favour. As this would require the husband to make payment to the wife even after she retains the equity in the home, the wife seeks an order that the husband make weekly payments to her until she is paid her entitlement. Even if I were to accept the wife’s argument with respect to her percentage entitlement and the addback it would not be open to me on the evidence to make an order for the husband to make weekly payments to her as currently the husband is unemployed. As illustrated one of the difficulties in adding back notional property which no longer exists particularly when the pool of actual property is so small. Whilst I am not satisfied that the husband has explained how he expended the $230,000, I do not know that I can safely assume the husband has a lump sum available to him. More importantly in the circumstances of this case the wife’s submissions completely ignore the fact that the lump sum was a significant contribution by the husband.
In Bevan & Bevan [2013] FamCAFC 116 the Full Court made the following obiter comment about addbacks at [79]:
We observe that “notional property”, which is sometimes “added back” to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute “property of the parties to the marriage or either of them”, and thus is not amenable to alteration under s 79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of them forms part of the history of the marriage – and potentially an important part. As the question does not arise here, we need say nothing more on this topic, save to note that s 79(4) and in particular s 75(2)(o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property.
Any written submissions wife refers to the decisions of Masoud & Masoud [2016] FamCAFC 24 and Vass & Vass [2015] FamCAFC 51 (“Vass”).
In Vass the Full Court stated at [138] and [139]:
There is no error committed per se in adjusting the parties’ actual property interests by a calculation involving notionally adding back into the pool sums which have been dissipated by the parties. We reject any suggestion that the decision of Bevan & Bevan (2013) FLC 93-545 – or, more particularly, the decision of the High Court in Stanford & Stanford (2012) 247 CLR 108 - is authority for any necessary contrary solution. Some statements made by the High Court may lead to the conclusion that references to “notional property” as have been referred to in decisions of this court and at first instance may need to be reconsidered.
The decisions referred to seek to remind the Court that, however the exercise of discretion might seek to deal with property that is said to be the subject of “add back”, proper consideration must be given to existing interests in property, and the question posed by s 79(2) as a separate inquiry from any adjustment to property interests by reference to s 79(4) if a consideration of s 79(2) reveals that it is just and equitable to alter existing interests in property.
As the Full Court makes clear in Masoud whether or not to add back notional property or take it into account pursuant to section 75(2)(o) (the equivalent for de facto relationships is section 90SF(3)(r)) is a discretionary matter for the trial judge. Following that line of reasoning, in an appropriate case the trial judge may adopt a hybrid approach of adding back some amounts and taking into account some amounts pursuant to section 90SF(3)(r). If I had reliable figures as to the parties paid legal fees and the source of funds would be minded to add back those amounts. The caution in any hybrid approach would be to ensure that there was no inadvertent double counting.
I am satisfied that the husband used part of the $230,000 for reasonable living expenses. It would be inappropriate to addback such sums.[2]
[2] See C & C [1998] Fam CA 143 at [44-46]; M & M [1998] FamCA 42 at [2.11].
Whilst the husband needed some funds to live on, spending the whole sum within 2 years is not reasonable. It amounts to a premature distribution of assets.[3]
[3] See Townsend & Townsend (1995) FLC 92-569; Kowaliw & Kowaliw (1981) FLC 91-092.
Conclusion
I am satisfied that it is just and equitable to make an order for property division in the case. Both parties seek property adjustment orders. In Russell & Russell (1999) FLC 92-877 the Full Court said at [80].
… it must be remembered in this regard that under s79(2) of the Act, the Court is required to be satisfied that it is the order to be made which is just and equitable, not just the underlying percentage division of the net value of the parties’ assets.
[emphasis in the original]
In this case applying percentages is not helpful because of the dissipation of the $230,000. It is not possible to accurately assess what was reasonable expenditure. It would be unjust to addback the whole sum and somewhat arbitrary to addback some. It is significant to note that the $230,000 sum is almost double the equity in the home.
In all the circumstances of this case I find that it is just and equitable that the wife retain whole of the equity in the home. She wishes to retain the house. The order provides her with that opportunity. If she is not able to refinance the mortgage the house will be sold and she will retain the equity. That may be a little more or a little less than the current equity depending on the selling price and associated costs.
The wife will retain the (vehicle omitted). She will need to discharge the debt. The husband will retain his car. The parties will otherwise retain what is in their respective possession.
For the reasons I have given I make the orders which appear at the beginning of these reasons.
I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of Judge Harland.
Date: 11 November 2016
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