SEEGER & SEEGER
[2020] FCCA 137
•7 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SEEGER & SEEGER | [2020] FCCA 137 |
| Catchwords: FAMILY LAW – Property settlement – consideration of ownership of property in Country A and jewellery owned by the parties – contributions – how the court should deal with the husband’s alleged failure to provide full and frank disclosure about his income and financial position. |
| Legislation: Evidence Act 1995 (Cth), s.140 |
| Cases cited: Bevan & Bevan [2013] FamCAFC 116 |
| Applicant: | MS SEEGER |
| Respondent: | MR SEEGER |
| File Number: | MLC 3999 of 2017 |
| Judgment of: | Judge Small |
| Hearing dates: | 2 & 3 May 2019 |
| Date of Last Submission: | 3 May 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 7 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Elleray |
| Solicitors for the Applicant: | Geelong Family Lawyers |
| Advocate for the Respondent: | In person with McKenzie Friend |
| Solicitors for the Respondent: | None |
ORDERS
Within 60 days (“the due date”), the wife shall pay to the husband the sum of $56,529 (“the payment”).
Contemporaneously with the payment, the husband shall do all such acts and things as may be necessary to transfer to the wife, at the expense of the wife, all his right, title and interest in the real property situated at and known as B Street, Town C in the State of Victoria (“the Town C property”) (“the transfer”).
Contemporaneously with the transfer, the wife shall:
(a)refinance the ANZ loan encumbering the Town C property into her own name and shall otherwise be solely liable for and indemnify the husband against all rates, taxes, and outgoings of or with respect to the Town C property of whatsoever nature and kind; and
(b)remove the caveats she has placed on the Town C property and on the property known as and situate at D Street, Town D in the State of Victoria (“the Town D property”) at her own expense.
In the event that the payment or the transfer is not made by the due date:
(a)the wife shall remove the caveat she has placed over the Town C property within seven days of the due date;
(b)the husband shall, within 14 days of the due date, do all such acts and things and sign all such documents as may be necessary to place the Town C property on the market for sale with a real estate agent familiar with property prices in the Town C area (“the sale”), and upon settlement of the sale, the sale proceeds shall be disbursed as follows:
(i) first, to pay all costs and commissions of the sale;
(ii)second, to pay out the ANZ loan secured over the Town C property; and
(iii)third, the balance to be disbursed so that the overall property of the parties is divided in the proportions of:
A.47.5% to the husband; and
B.52.5% to the wife.
Pending the payment or the settlement of the sale, the wife shall have sole use and occupation of the Town C property and she shall pay all instalments due on the ANZ loan, and all rates, taxes and other outgoings of the Town C property, as and when they fall due.
The husband shall otherwise retain for his sole and exclusive use, enjoyment and benefit all other items of property (both real and personal and including choses-in-action and financial resources) in his name, possession and/or control including but not limited to:
(a)the payment, pursuant to order (1) above;
(b)all his right, title and interest in the Town D property;
(c)the motor vehicle E;
(d)monies standing to his credit in any bank account held in his sole name;
(e)furniture and household effects currently in his possession; and
(f)his superannuation contributions and entitlements with Superannuation F and Superannuation G, save for the superannuation split provided in these orders.
The wife shall otherwise retain for her sole and exclusive use, enjoyment and benefit all other items of property (both real and personal and including choses-in-action and financial resources) in her name, possession and/or control including but not limited to:
(a)the Town C property, following the transfer pursuant to order (2) above;
(b)the motor vehicle H;[1]
[1] Registration number (omitted)
(c)monies standing to her credit in any bank account held in her sole name;
(d)furniture and household effects currently in her possession; and
(e)her superannuation contributions and entitlements with Superannuation I including the superannuation split provided in these orders.
That the wife shall be solely liable for and indemnify the husband in relation to all debts and liabilities in her name or attaching to any item of property which she is to retain pursuant to these orders, including but not limited to:
(a)the ANZ loan or any refinance secured over the Town C property;
(b)the ANZ personal loan secured over the motor vehicle H;
(c)the wife’s CBA Mastercard debt;
(d)the wife’s personal loans; and
(e)the wife’s CBA overdraft.
That orders 10 to 12 inclusive are binding on Superannuation F Trustee (“the Trustee”) as Trustee of Superannuation F Fund (“the Fund”).
Pursuant to section 90XT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the husband’s interest in the Fund, the wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount of $68,684 (provided that such base amount shall not exceed the value of the interest determined under section 90XT(2)) and there be a corresponding reduction in the entitlement of the husband to whom the splittable payment would have been made but for these orders.
That order 10 has effect from the operative time and that the operative time for such order be four (4) business days after the service of a sealed copy of these orders on the Trustee.
That the Trustee of the Fund, in accordance with the obligations set out under the Act and the Regulations, do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of the wife and make payment to the wife in accordance with these orders.
That there be liberty to apply to each party and the Trustee in relation to the implementation of the orders affecting the superannuation interest.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders;
(b)monies standing to the credit of the parties in any joint bank account are to be divided equally between the parties;
(c)insurance policies remain the sole property of the owner named thereon;
(d)each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(e)any joint tenancy of the parties in any real or personal estate is hereby expressly severed; and
(f)each party forgoes any claim they may have to any inheritances to which the other party is entitled to either presently or in the future.
IT IS NOTED that publication of this judgment under the pseudonym Seeger & Seeger is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 3999 of 2017
| MS SEEGER |
Applicant
And
| MR SEEGER |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a property dispute between Ms Seeger (“Ms Seeger” or “the wife”) and Mr Seeger (“Mr Seeger” or “the husband”).
The wife seeks:
A.to retain the property at B Street, Town C (“the Town C property”) currently registered in the name of the husband;
B.to take responsibility for payment of the ANZ loan attached to that property; and
C.to retain her motor vehicle H and the loan attached to it.
Despite the husband having considerably more superannuation than she has, the wife does not seek a superannuation split.
The husband seeks orders for the wife to retain a property in Country A which he claims to own, as well as the property located at D Street, Town D (“the Town D property”) which is also registered in his name. He seeks to retain the Town C property subject to its loan.
The issues to be decided in this case, as in all Family Law property cases, with some related issues attached are:
A.Is it just and equitable to alter the parties’ property interests?
B.If it is just and equitable, what are the property interests of the parties and what is their value?
i.Whether the property at Property J, Country A (“the Country A property”) is ‘owned’ by the husband and ought to be considered as an asset of the parties for the purposes of these proceedings; and
ii.Whether there was a “box of gold jewellery” worth $50,000 in the former family home when the husband left at separation in January 2016 and which seems to have disappeared.
C.What were the parties’ respective contributions to the property?
D.Should there be an adjustment to the contribution-based entitlements of the parties after a consideration of the matters set out in section 75(2) of the Family Law Act 1975 (Cth) (“the Act”)?
E.In light of those findings, what Orders should be made to effect a just and equitable division of property between the parties?
Background
Ms Seeger was born on … 1984 in Country A and was 34 years old at the time of trial. She undertakes home duties and is a student.
Mr Seeger was born … 1962 in Country K and was 57 years old at the time of trial. He is employed as a labourer.
The parties married on … 2003 in Country A. This was an arranged marriage and the parties met two weeks prior to the wedding date. Ms Seeger was 18 years old and Mr Seeger was 40 years old at the time of their marriage.
The parties commenced cohabitation in Australia in September 2004.
Both are now Australian citizens.
There are three children of the marriage, namely:
A.[X] born … 2007;
B.[Y] born … 2010; and
C.[Z] born … 2012 (collectively “the children”).
The children spend time with their father pursuant to final parenting Orders made by consent on 19 December 2018.[2]
[2] On 19 December 2018, Judge Williams made final parenting Orders by consent in chambers.
The parties separated on 27 January 2016.
Ms Seeger filed her initiating application on 27 April 2017.
Mr Seeger filed his response on 13 June 2017.
The trial was initially listed for 10 December 2018 before another judge, but was not reached and was adjourned to 2 May 2019.
The trial commenced on 2 May 2019 and ran for 2 days. The wife was represented by counsel and the husband was self-represented, although he had a McKenzie friend to assist him.
Witnesses at trial were the husband and wife, and the husband’s son Mr A Seeger (“Mr A Seeger”).
Following the conclusion of evidence and submissions, I reserved my decision.
Issues and Evidence
It is not possible to refer to every fact and/or matter raised in the two-day trial of these proceedings, nor is it necessary to do so. The parties should understand that I have had regard to the whole of the evidence, including my notes and the transcript of the trial, and if I have not referred to a particular fact or matter it does not mean that I have not considered it.
For clarification of the law, I note that when a litigant asserts a fact in Family Law court proceedings, it is up to that party to prove that fact on the balance of probabilities: see Evidence Act 1995(Cth) section 140. That is, the party who asserts a fact must prove to the court that the fact is more probably true than false.
The law in relation to how a Court should approach the question of property division between separated married couples is set out in Part VIII of the Act.
Issue A: Is it just and equitable to alter the parties’ property interests?
This question arises from the operation of section 79(2) of the Act, which states that a Court may only make orders adjusting the property interests of married parties if it is just and equitable to do so.
In Stanford v Stanford (2012) 293 ALR 70 (“Stanford”) at [79] and [80], the High Court states that the first question that must be answered is whether:
it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.
If it is just and equitable to make a property settlement order, then the matter can proceed to a property division, applying the various principles set out in section 79(4) of the Act.
In Stanford, the High Court of Australia further stated, at [42]:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife.
In Bevan & Bevan [2013] FamCAFC 116 at [70], the Full Court of the Family Court of Australia said that the circumstances described in that passage of the Stanford judgment “encapsulates the vast majority of cases”.
Decision: Issue A
There is little in this case to distinguish it from “the vast majority of cases”, and I therefore find that it is just and equitable to alter the parties’ property interests.
Issue B: If it is just and equitable, what are the property interests of the parties and what is their value?
Is the Country A property an asset of the parties for the purposes of these proceedings?
The husband says that the Country A property belongs to him and forms part of the property pool to be divided as a result of these proceedings (“the property pool”). It is his case that the Country A property ought to be retained by the wife in any property division as he has no need of it. He values it for that purpose at $150,000 AUD, although the property has never been the subject of any professional valuation as far as the Court is aware.
The wife says that the Country A property belongs to her mother and does not form part of the property pool.
The husband’s evidence is that he received an inheritance from his father in 2010 in the sum of 121,147 Country K currency.[3]
[3] “Country K curreny” denotes Country K currency. The exchange rate between the Country K Currency and the Australian dollar at the time of trial was 2.9772 Country K Currency to 1 Australian dollar.
He says that he withdrew 50,000 Country K currency of that money after it had been deposited into his account, and in support of that assertion he annexed to his affidavit material a copy of the bank statement from his Country K bank which shows a withdrawal of 50,000 Country K currency on 20 December 2010. I note that the wife also annexes that statement to her Affidavit material.
It was the husband’s evidence at trial that he had withdrawn that money in five separate cheques of 10,000 Country K currency each, those cheques being addressed to himself, the wife, the wife’s brother-in-law, the wife’s mother, and his cousin. He then took the cheques with him and travelled to Country A.
He said that the cheques were given to a broker in L City in Country A who was known to the wife’s brother-in-law, and the broker gave him Country A currency in cash in return. That cash, he says, was put towards the construction of the house at the Country A property, and also towards car hire so that the parties and the wife’s family could travel around Country A.
He deposes that he had previously sent $30,000 AUD to the wife’s mother in Country A to purchase a property as his agent in the village where his father was born as a kind of memorial to honour his father. Mr Seeger is of Country A heritage but was born and grew up in Country K before migrating to Australia.
He deposed in his affidavit affirmed 30 and filed 31 January 2019 at paragraph 30(a), that:
I sent the $30,000AUD that paid for the land by withdrawing it from my Country K bank account via Western Union and transferring it to the Applicant’s mother’s account in Country A. She acted as my agent to settle the purchase of the property. As I was not present at the settlement of the land, the Applicant’s mother registered the land in her name. The Applicant’s mother agreed to transfer ownership registration of land into my name on the next occasion when I visited Country A.
The husband provided no corroborating documentary evidence to support that assertion.
He went on to say that in December 2010, he travelled to Country A via Country K and took with him 50,000 Country K currency that he had withdrawn from his Country K bank account on the 20th of that month. It is his evidence that he then used that money “towards having a house built on my land”.[4]
[4] Paragraph 30(b) of the husband’s affidavit affirmed 30 and filed 31 January 2019.
He further deposed that:
A.the total cost he paid for the house and land was $150,000 AUD, including the $30,000 AUD and the further 50,000 Country K currency as set out above;
B.over the following 18 months from December 2010, he made regular payments of $5,000 and $6,000 for the construction of the house on the property; and
C.those regular payments were
“arranged through the Applicant’s sister, Ms M and her husband, Mr N. They would put money in friend’s account and transferred to the account of the applicant’s mother in Country A. This continued until the building construction on my property in Country A was complete.”[5]
[5] Paragraph 30(d) of the husband’s affidavit affirmed 30 and filed 31 January 2019.
It was his evidence at trial that there was no contract between himself and the wife’s mother because he had trusted her, as the grandmother of his children, to keep to their agreement.
On the first day of trial, when asked about the $30,000 he says he sent to the wife’s mother to purchase the Country A property, Mr Seeger denied sending that money by Western Union. When asked about that matter again on the second day, it was his evidence that that money which, he said, had been saved from his earnings (that is, it was not part of the 50,000 Country K currency he withdrew from his Country K account), had been “transferred via my brother-in-law’s friend to Country A”.
Under further cross-examination, Mr Seeger said that he had given the $30,000 in cash to the wife’s brother-in-law’s friend. He said it was not taken from any account, but that he “had the money in the house”.
I find it simply unbelievable that a man whose taxable income is said to be less than $40,000 per year could have accumulated $30,000 in cash over a period of eight years or so, while supporting a wife and a growing family and purchasing two properties in Australia, even if, as he said at trial, that the money was in “bits here and there”. I can only infer from his evidence that Mr Seeger might not have declared all his income to the Australian Taxation Office over a long period of time.
It was the husband’s further evidence that when he gave the $30,000 in cash to the wife’s brother-in-law, the brother-in-law took it to the bank and deposited it in the Australian account of his broker’s Country A friend. The broker’s friend, who lives in Country A but has an account in Australia, and who is also a broker, then transferred the money to his account in Country A, before withdrawing it in Country A currency and paying it to the wife’s mother in cash so she could buy the Country A property.
When asked why he had not simply transferred the money from his Country K account directly to his mother-in-law in Country A via Western Union, as he also deposed to in a previous affidavit filed in these proceedings[6], Mr Seeger said that he understood that “Western Union doesn’t take big money”. That does not explain why he deposed on his oath to having done exactly that on two separate occasions in documents filed in these proceedings.
[6] The Affidavit of the husband sworn and filed on 13 June 2017 paragraph 11
Mr Seeger was unable to provide any documentary evidence of:
A.the source of the $30,000;
B.the deposit to the account of the friend of his brother-in-law’s broker; or
C.the cash withdrawal in Country A of the equivalent sum in Country A currency by that person.
Mr Seeger further deposed that monies he claimed to have sent to the wife’s mother in Country A for the construction of the dwelling on the property had been sent in the same way, but in regular, smaller sums of $5,000 or $6,000 each, totalling about $120,000 AUD.
Again, Mr Seeger provided no documentary evidence of those transactions.
He did tender at trial a document from an unknown source which appears to indicate two sums of $200 AUD on 11 October 2011 and $2,000 AUD on 17 April 2013 being sent directly to the wife’s mother. However, the sender of these sums is not identified in that document, and given his evidence that the wife’s mother had been paid in cash and not by transfer, that document does not support his evidence.
The husband says that the wife’s mother always knew that the Country A property, bought as a bare block of land and later built upon, was his, and that there had been an arrangement between them that she would transfer the title to him at a later date.
It is not disputed between the parties that the wife’s parents moved into the partially-constructed house on the land in 2011, and that they continue to live there.
Mr Seeger says he wants the property to be considered as part of the property pool for the purposes of these proceedings, but that he wants the wife to retain it at a value of $180,000. I note again that no valuation evidence in relation to the Country A property was ever put before this Court.
In a tendered letter from the husband to the wife’s lawyers dated 29 April 2019, only days before trial, he states as follows:
[…] I will note here, that I did purchase land in Country A, and had built a house on it (via my ex mother in law) where my now ex mother in law resides. My ex mother in law now claims that the property in question belongs to her which is incorrect. I have communicated with the police in Country A and they have found that she cannot prove ownership of the property or how she got it. I will rely on this policeman’s evidence also and are waiting to receive documents from this policeman via email.
The house that I had erected was funded via an inheritance that came from my father’s deceased estate. My gold jewellery also came from my father and mother based in Country K.
The wife deposed, throughout her affidavit material, that she is unaware of any arrangement between the husband and her family in relation to the Country A property, and that it belongs to her parents, being one of a number of properties they own in Country A.
At trial, the wife tendered a professionally translated copy of the recommendation of an Assistant Inspector-General of Police in the NRA Wing[7] to his superior, the Director-General of Police, NRA and Women’s Wing, in Town O, Country A dated 16 October 2018.
[7] “NRA” means Non-Resident of Country A.
That document states that on 13 September 2018, the husband applied to have the Country A property transferred to him on the basis that he had provided the monies for its purchase in 2010.
The translated document then states:
The enquiry was got conducted through NRA L City. From this enquiry it is found that parents of the applicant Mr Seeger[8] were living in Country K and so he was born in Country K, who afterwards shifted to Australia. Mr Seeger was married to Ms Seeger[9] d/o (omitted) resident of (omitted) L City in the year 2003 and from this wed-lock three children were born. Mr Seeger has leveled allegation of sending (Country A Currency) 50.00 lac to his in-laws family, but during enquiry, he has not produced any proof for sending money to his in-laws family. No amount having been sent to his family of in-laws is proved from the copies of his Bank accounts in foreign banks produced by him. Mr P[10] sold his some land at village Q in the year 2007. In the year 2010, he purchased (omitted) and constructed house thereon in name of (omitted) wife of Mr P(omitted). Due to dispute between applicant Mr Seeger and Ms Seeger in Australia, Ms Seeger has filed case for divorce in foreign court which is pending. The matter relates to money between both parties and the divorce case is pending in court in foreign. So no action is required to be taken by the NRA wing on the application. On the basis of the enquiry conducted by NRA L City, it is recommended to consign application to record.
[8] It was explained to the Court that Mr Seeger’s given name is spelled with a “B” when used in English in Country A, and that he is known as “(omitted)” rather than “(omitted)”.
[9] The wife.
[10] The wife’s father.
In other words, Mr Seeger’s complaint was dismissed following a police investigation because he had been unable to prove that he owned the Country A property. There is no evidence that his complaint was ever the subject of proceedings in any court in Country A.
Further translated documents evidencing the sale of the property by “(name omitted)” to the wife’s mother, Ms S on 19 July 2010 were also tendered.
It was Mr Seeger’s evidence at trial that he believed that the whole of the wife’s family had conspired with the Country A police to prevent him from obtaining any rights to the Country A property. He provided no evidence to support that assertion.
He said that he travelled to Country A in March 2018 in order to claim the Country A property as his own. He said that he went to the property but there was no one home, even after his ex-brother-in-law assured him that the wife’s mother and sister would be returning the next day.
It was his evidence that about a week before coming back to Australia, a relative had taken him to the NRA wing of the police where he lodged a claim to the property and nominated his cousin as a person to act on his behalf in Country A.
It was his understanding that after he had returned to Australia the NRA police had called the wife’s mother in for questioning about how she had bought the Country A property, and he conceded that the document set out in paragraph 57 hereof was the result of those enquiries. I note that that document contradicts the claim set out in the husband’s letter to the wife’s solicitors dated 29 April 2019. It is not the wife’s mother, but the husband himself, who is said to have been unable to prove ownership of the property.
The husband said that court proceedings would be the next step in his claim but he did not believe that he would be successful. He said that the wife and her family had stolen his money, “cheated” him, and his “property is lost to (him)”.
In the course of cross-examination from the wife’s counsel, Mr Seeger said that all the documents in support of his case were located in a filing cabinet in the Town C property at the date of separation, and he has not seen them since then.
His son, Mr A Seeger and some friends attended at the Town C property on 24 March 2016 under police supervision to retrieve Mr A Seeger’s personal effects and chattels, but there is no evidence that any documents belonging to the husband were taken from the house by Mr A Seeger.
It is the wife’s evidence that she does not have the husband’s documents. It was her evidence at trial that any documents she has provided in these proceedings in relation to the husband’s affairs (the bank statement evidencing the 50,000 Country K currency withdrawal, for instance) were found among her own papers.
Mr A Seeger gave evidence at trial in support of his father, despite not having filed any affidavit material.
It was Mr A Seeger’s evidence that when he went to the Town C property on 24 March 2016, he and his friends collected his personal belongings but nothing else. He said as far as he was aware, neither he nor any of his friends entered the house at all on that day, as his belongings were in the garage, which had been used by him as a bedroom when he was living there. It was his evidence that he was at the Town C property for no more than 15 minutes on that day, but his friends were still there when he had to leave, and they were still removing his possessions from the garage when he left.
In other words, he could not definitively say whether there was a filing cabinet in the house at the Town C property on that day, and thus could not corroborate his father’s evidence in that regard.
I note that the reason Mr A Seeger had to leave the Town C property on 24 March 2016 was as a result of an Intervention Order taken out against him by the police on behalf of the wife. The police officers needed to leave after a short time, and he would have been in breach of that Order, which was later extended more than once, if he had stayed without the police being present.
In relation to the Country A property, Mr A Seeger supported his father’s case, but it was clear that any and all information he had about that issue had come from his father, and he had no personal or independent knowledge about the ownership of that property. In those circumstances, I give his evidence in relation to this issue little weight.
Decision: Issue B(i)
As I have already stated, it is for the person who asserts a fact to prove that fact on the balance of probabilities.
I found the husband’s evidence in relation to this issue to be convoluted and sometimes contradictory, and where that evidence conflicts with the evidence of the wife, I prefer the evidence of the wife.
There is no evidence other than the husband’s assertions that he purchased the Country A property and I found his evidence about the payments most unsatisfactory.
His son’s evidence did not assist his case, as it was clear that Mr A Seeger only knew what his father told him about the Country A property.
In those circumstances, I cannot be satisfied that it is more probable than not that the husband owns the Country A property. There is no corroborative evidence for his assertions of that fact save for two amounts of money being sent to the wife’s mother in Country A in 2011 and 2013 from an unidentified source, and even that evidence contradicts his evidence at trial about how the wife’s mother was allegedly paid.
I do not propose, therefore, to include the Country A property in the pool of assets to be divided in these proceedings.
(ii) Whether there was a “box of gold jewellery” worth $50,000 in the former family home when the husband left at separation in January 2016
It is the husband’s case that at the date of separation, there was jewellery worth about $50,000 AUD in the main bedroom, and that his personal papers were in a filing cabinet in the Town C property. He alleged that the wife has possession of both the jewellery and the papers, and he says that the jewellery ought to be included in the property pool and considered as an asset retained by her.
In his affidavit affirmed 30 and filed 31 January 2019, the husband deposes at paragraph 45, that the personal property he left behind at the date of separation included:
[…] all my clothes, footwear, personal jewellery of high-quality, financial records and other documents. The applicant still has possession of my personal property. In particular she has possession of all my gold jewellery which had belonged to my father. This jewellery is worth at least $50,000.
This was the first time this issue was raised, despite the husband having filed two previous affidavits. It is his case that the wife should return his jewellery to him or reimburse him for the cost of replacements. He does not particularise the jewellery alleged to have remained in the Town C property at the time of separation in any way.
The husband was asked under cross-examination at trial why he had made no mention of the jewellery until the filing of his trial affidavit. At first, he said that it was because the wife had told Court R during the Intervention Order proceedings that Mr A Seeger had stolen the jewellery. Then he said it was because he had made enquiries and had not been able to find the jewellery in a pawnshop.
Mr Seeger then said that he knew the jewellery was still at the Town C property, that he had not believed that “my ex would be so low to take my jewellery away from me”, and he thought the wife would return the jewellery to him because it belonged to him. I am somewhat sceptical about that evidence, as the wife’s position in relation to the jewellery was made clear at the time of filing his previous affidavits.
It was his evidence that he had not attended at the Town C property to retrieve his papers and jewellery on 24 March 2016, when Mr A Seeger attended to retrieve his belongings, because he “was not in a state of mind” and there was an Intervention Order in place. Given the police were present when Mr A Seeger attended, the husband would have been protected from any allegation of breach in relation to his Intervention Order.
Mr A Seeger’s evidence in relation to this issue was that as far as he was aware, his parents kept their jewellery in the wardrobe in their bedroom. He knew that there was a filing cabinet at the Town C property but he was unaware of what was kept in it.
He said that the only jewellery he had seen his father wear was a heart-shaped ring and some gold chains.
Apart from the evidence about the nature of the jewellery he had seen his father wear, I found Mr A Seeger’s evidence of little assistance to his father’s case on this issue.
Decision: Issue B(ii)
It is not disputed by either party that they owned jewellery.
However, there is no evidence, save for that of the husband’s son Mr A Seeger, to explain the type of jewellery owned by the parties or, more particularly, what it was worth.
The husband’s failure to even mention jewellery until he filed his trial affidavit on 31 January 2019, does not give the court confidence that his evidence in relation to it is true. I find it more likely than not that he owned and wore jewellery during the marriage, but there is no evidence before the court upon which I could make a decision about the quantum of the jewellery or its value.
In those circumstances, I cannot consider the jewellery as part of the property pool.
However, I believe it to be more likely than not that the husband did leave jewellery of some unspecified quantum and value at the Town C property, and I will refer to that matter again when considering Issue D in this judgment.
Decision: Issue B
The property interests of the parties as at the date of trial are set out as follows:
Assets
Owner
Value
B Street, Town C
Husband
$580,000.00
D Street, Town D
Husband
$350,000.00
NAB Account
Husband
$50.00
Country K account
Husband
$6,000.00
motor vehicle E
Husband
$1,000.00
Jewellery
Husband
Unknown
motor vehicle H
Wife
$14,000.00
Furniture and chattels
Wife
$5,000.00
Furniture and chattels
Husband
$2,000.00
Total Assets
$958,050.00
Liabilities
ANZ loan Account
Joint
($52,000.00)
ANZ car loan
Wife
($14,000.00)
CBA overdraft
Wife
($1,508.00)
Personal loans
Wife
(E$6,340.00)
CBA Mastercard
Wife
($2,000.00)
Total Liabilities
($75,848.00)
Net Assets
$882,202.00
Superannuation
Superannuation F
Husband
$109,428.00
Superannuation G
Husband
$28,587.00
Superannuation I
Wife
$647.00
Total superannuation entitlements
$138,662.00
Total property
$1,020,864.00
Issue C: What were the parties’ contributions to their property?
This question arises from the requirements of section 79(4) of the Act which states as follows:
In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Initial contributions
It is not disputed between the parties that at the time of their marriage, the husband owned the Town C and Town D properties.
The husband’s evidence is that the Town D property was unencumbered at that time, and that there was an outstanding mortgage loan of about $90,000 against the Town C property.
The wife came to Australia to begin her married life with the husband with no real property, a disputed dowry and her personal possessions.
The parties lived in rental accommodation for the first year they lived together as the Town C property, which had been the family home of Mr Seeger and his previous partner, was tenanted.
In those circumstances, it is clear that the husband made almost all of the initial contributions to the parties’ property.
Contributions during the marriage
The parties were both engaged in activities which supported the family throughout the marriage: the husband by deriving an income and looking after the garden, and the wife either by working or looking after the home and the children.
During that time, they were able to pay off the mortgage held over the Town C property, although they later took out an ANZ loan which was secured against that property.
Marriage is a partnership, and the partners usually contribute everything they have to that partnership. In those circumstances, unless there was a contribution to the parties’ property from outside that partnership, contributions of the parties are generally considered to be equal, even if one party has earned more than the other during the marriage.
The Court does not calculate each and every financial and non-financial contribution made by the parties, but rather takes a more “broad brush” approach.
In this case, there was one contribution from outside the relationship in the form of a redundancy payment received by Mr Seeger, although there does not seem to be any cogent evidence about how that payment was applied.
I therefore find that the contributions of the parties during the marriage fall slightly, but only slightly, in favour of the husband.
Post-separation contributions
The parties separated at a time when they owed about $50,000 on the ANZ loan attached to the Town C property.
That loan had originally been obtained to assist the wife’s sister and her husband obtain residence in Australia, but the evidence about how it was actually spent is somewhat opaque.
It appears that at least some of that money was used for overseas travel, and the husband believes that the wife’s sister was paying her back in increments, but that the wife was not making payments on the loan.
In any event, the husband made some payments on that loan after separation, as well as paying for the Town C property utilities and other outgoings, although at trial it became clear that the balance owing on the ANZ loan had risen to more than $52,000. The wife tendered a bank receipt evidencing that she had made a payment of $1,200 about three weeks prior to trial, and the Court was told that she would be making regular payments from then on.
I therefore find that the parties’ post-separation contributions were approximately equal.
Decision: Issue C
On the basis of the above findings, I find that the overall contributions of the parties to their property fall 67.5% to the husband and 32.5% to the wife.
Issue D: Should there be an adjustment to the contribution-based entitlements of the parties after a consideration of the matters set out in section 75(2) of the Family Law Act 1975 (Cth) (“the Act”)?
Section 75(2) of the Act sets out the factors the Court must take into consideration when making orders for the maintenance of a party to a marriage.
The inclusion of this exercise in property proceedings is required by section 79(4)(e).
Section 75(2) states that the court must consider the following matters:
(a) the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party’s role as a parent; and
(m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
In this case, the husband is in his late fifties and is engaged in full time employment. He is in good health.
He owns two properties with a net worth about $878,000, and has superannuation entitlements totalling $138,015.
He spends time with the three children of the marriage, although his declared income is such that he is not assessed to pay child support for them.
The wife is in her mid-thirties and works part time. She is also in good health.
She has the primary care of the three children of the marriage, the youngest of whom is almost eight years old. She will have the primary care of the children for the foreseeable future.
She owns no real property, although she is jointly liable for the ANZ loan attached to the Town C property, and has minimal superannuation entitlements of $647.
I also consider the following matters under section 75(2)(o):
A.the wife has had the benefit of an unquantified and unvalued amount of jewellery which the husband left at the Town C property at the date of separation;
B.the husband’s level of discovery provided to the wife’s solicitors during these proceedings was less than required by the Federal Circuit Court Rules 2001 (Cth); and
C.I have some doubts as to the husband’s honesty about his taxable income as there are some inferences to be taken from the evidence that he may not have declared all his income to the Australian Taxation Office.
Decision: Issue D
In all of those circumstances, I find it appropriate to make an adjustment of 20% in the wife’s favour to the parties’ contributions to their property.
That is, the wife should receive an overall settlement of 52.5% of the parties’ property and the husband 47.5%.
Issue E: In light of those findings, what Orders should be made to effect a just and equitable division of property between the parties?
The wife is currently living in the Town C property and the Court assumes that she is making regular payments towards the ANZ loan encumbering that property.
The husband is living in the Town D property, which is said to be rundown, and which is unencumbered.
As stated, the above findings result in a property settlement of 52.5% to the wife and 47.5% to the husband.
I have found that the asset pool of the marriage totals about $1,020,864. 52.5% of $1,020,864 is $535,954 and 47.5% of $1,020,864 is $484,910.
Therefore, the wife should retain assets and superannuation worth $535,954 and the husband should retain assets and superannuation worth $484,910.
The wife is living in the Town C property, which is worth $580,000, and she wishes to retain that property.
If she were to retain that property subject to its loan of $52,000, along with her car worth $14,000, furniture and chattels worth $5,000, superannuation worth $647, and debts of $23,848, she would have property worth $523,799.
There would therefore need to be an adjustment in her favour of $12,155[11].
[11] $535,954 - $523,799 = $12,155.
The husband has the Town D property worth $350,000, his car worth $1000, his Country K bank account worth $6,000, furniture and chattels worth $2,000, a bank balance of $50, and superannuation entitlements of $138,015, with no debt save for the ANZ loan that I have apportioned to the wife as she wishes to retain the Town C property. The husband’s total property under this scenario is worth $497,065.
He would therefore need to transfer property worth $12,155[12] to the wife.
[12] $484,910 - $497,065 = -$12,155.
However, much of Mr Seeger’s assets are in the form of superannuation entitlements, to which he will not have access for some years. I do not find it just and equitable for him to have to wait for much of his settlement while the wife obtains hers now.
I will therefore make a superannuation splitting order to equalise the parties’ entitlements, which will mean that entitlements worth $68,684[13] are transferred from Mr Seeger’s superannuation account to Ms Seeger. That will allow the husband some capital with which to get on with his life, while ensuring that Ms Seeger receives her full entitlements under this settlement.
[13] $138,015 (husband’s current entitlements) + $647 (wife’s current entitlements) = $138,662 / 2 = $69,331. Ms Seeger already has entitlements worth $647 so $69,331 - $647 = $68,684.
The effect of that will be to add $68,684 in cash to the settlement Mr Seeger would otherwise have received, but he will lose that amount in superannuation entitlements. However, Ms Seeger will need to subtract from that $68,684 the $12,155 she should receive based on the above calculations.
In other words, Ms Seeger will get a $68,684 addition to her superannuation entitlements, but she will have to find an extra $68,684 (minus the $12,155 she is already entitled to as part of the settlement) to pay Mr Seeger in cash.
That will mean she will need to pay Mr Seeger $56,529[14], and refinance the Town C property if she wishes to retain that property in this settlement. She will therefore need to obtain a mortgage loan of around $110,000 in order to retain the Town C property.
[14] $68,684 - $12,155 = $56,529.
If she is unable to refinance the Town C property and make the payment to Mr Seeger by the date 60 days after the date of these Orders, then the Town C property will be sold, and its sale proceeds distributed so that Ms Seeger retains 52.5% of the parties’ property overall, and Mr Seeger receives 47.5%.
Decision: Issue E
In order to effect orders that are just and equitable in all the circumstances, and which provide for a 52.5/47.5% division of the parties’ property, I will make the following orders:
A.The wife retain:
i.The Town C property $580,000
ii.Motor vehicle H $14,000
iii.Her furniture and chattels $5,000
iv.Superannuation entitlements $69,331
v.Total assets retained $668,331
Minus
vi.Payment to the husband ($56,529)
vii.Refinance for the Town C encumbrance ($52,000)
viii.ANZ Car loan ($14,000)
ix.Personal loans ($6,340)
x.CBA overdraft ($1,508)
xi.CBA Mastercard ($2,000)
Total debts retained ($132,377)
Total property retained by the wife $535,954[15]
[15] $668,331 (total assets retained by the wife) - $132,377 (total liabilities retained by the wife) = $535,954.
B.The husband retain:
i.The Town D property $350,000
ii.Payment from the wife $56,529
iii.motor vehicle E $1,000
iv.His furniture and chattels $2,000
v.His Country K bank account $6,000
vi.His Australian bank account $50
vii.Superannuation entitlements $69,331
Total property retained by the husband $484,910
Conclusion
This was a 13 year marriage into which the husband brought two properties which still exist. The parties managed to pay off both of those properties during the marriage, but then borrowed further monies to assist the wife’s family members.
There are three children of the marriage who live with the wife and spend regular time with the husband.
The husband’s contributions to the parties’ joint assets were significantly greater than the wife’s, but the wife’s current and future financial needs are significantly greater than the husband’s.
I have found that the appropriate settlement therefore, is that there should be a division of their property in the proportions of 52.5% to the wife and 47.5% to the husband.
I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of Judge Small
Associate:
Date: 7 February 2020
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Remedies
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Jurisdiction
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Costs
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