SEGARI and SEGARI
[2017] FCWA 156
•13 NOVEMBER 2017
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: SEGARI and SEGARI [2017] FCWA 156
CORAM: MONCRIEFF J
HEARD: 12 JUNE, 19 OCTOBER & 8 NOVEMBER 2017
DELIVERED : 13 NOVEMBER 2017
FILE NO/S: PTW 3433 of 2016
BETWEEN: MS SEGARI
Applicant
AND
MR SEGARI
Respondent
Catchwords:
PROPERTY SETTLEMENT – Where there has been inadequate disclosure – where there are issues as to the composition of the pool of assets – assessment of contributions – where the husband contends that the wife made no meaningful financial or non-financial contribution – assessment of s 75(2) factors – where the matter turns on its own facts
SPOUSAL MAINTENANCE – Where the husband seeks spousal maintenance – where the evidence in support of such a claim is lacking and where the husband has failed to adequately disclose or explain his financial circumstances – application dismissed
Legislation:
Family Law Act 1975 (Cth)
Category: Not Reportable
Representation:
Counsel:
Applicant: Mr M Beckerling
Respondent: Self Represented Litigant
Solicitors:
Applicant: Here Legal
Respondent: Self Represented Litigant
Case(s) referred to in judgment(s):
Bevan & Bevan (2013) FLC 93-545
Stanford v Stanford (2012) 247 CLR 108
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1[Ms Segari] (“the wife”) and [Mr Segari] (“the husband”) commenced a relationship in 1990. They married and commenced cohabitation [in] 1992.
2Their marriage was to produce two children; [P], now aged 23 and [D], now aged 20.
3The parties separated on 27 June 2014, however they have been unable to resolve financial matters arising between them as a consequence of their separation and failed relationship.
4The wife, who is the applicant in these proceedings, commenced proceedings on 14 June 2016 and sought orders as follows: (Unless otherwise specified, all errors and emphasis in extracts are as in original).
1.Within 30 days of the date of these Orders, the respondent husband shall pay to the applicant wife such sum as to apportion to the wife 40% of overall net assets, or the sum of $700,000.00, whichever is the greater.
2.In the event that the husband is unable to pay out the wife in accordance with Order 1 hereof, then within 60 days of the date of these Orders the parties shall do all such acts and things and sign and execute all such documents as are necessary to list on the market for sale the property situate at and known as [Property A] in the state of Western Australia, , together with improvements, and the net proceeds of sale shall be divided so as to apportion to the wife 40% of overall net assets, or the sum of $700,000.00, whichever is the greater.
3.Except as otherwise set out in these Orders, the parties shall retain all other assets and financial resources in their respective possession, use or control as at the date of these Orders.
4.The parties shall forthwith indemnify and keep each other indemnified in respect of all liabilities in their respective names.
5.The parties shall have liberty to apply with respect to the implementation of these Orders.
5The wife filed an amended minute of final orders sought on 3 February 2017, seeking orders from the Court that would see the former matrimonial home Property A being sold and the proceeds, after payment out of the mortgage balance and sale costs, divided between the parties in equal shares. Further, that the parties otherwise have no claim against the others chattels or superannuation entitlements.
6As can be seen, the wife does not maintain any claim or variation to her claim taking into account the fact that the husband has recently inherited a third of [Property B].
7The husband asserts Property B has a gross value of approximately $3,400,000, from which, allowing for unquantified subdivision expenses, the husband expects to receive a return of approximately $600,000 subject to variations in the market when the subdivided blocks are sold. The husband ultimately asserted he was unaware of the value of his share in Property B, which is currently being redeveloped, expressing “My share, I don’t know, it’s land, it’s going to be developed, and if it’s developed I’ll get $600,000 and if it’s not developed I could get anywhere between $100,000 and $300,000 for it. So, but we don’t know yet because we’re trying to sell the blocks off and until it’s all done, it’s all finished, then I’ll know exactly how much I’ll get. I don’t know how much I’m going to get at the moment”.
8On 18 July 2016, the husband filed his responding material. In contrast to the wife, the husband sought orders that would have the wife pay to him the sum of $570,000 “Within 30 days of the date of [his] Application being filed” and further that the wife pay to the husband “half of her wages each and every week”.
9On 4 April 2017, the husband modified his position to seek final orders as follows, although erroneously identifying himself as the Applicant, it is clear as to what it is that he has sought:
MINUTE OF FINAL ORDERS SOUGHT BY THE APPLICANT
…
1.The parties do all acts and things and sign documents that I received from my ex-partner for $850,000 (Eight Hundred and Fifty Thousand Dollars) due to me for supporting her for 20 years.
2.The parties do all acts and things and sign all documents that [Ms Segari] places half of her weekly wages for the next 20 years into my stipulated account for the next 20 years as I had to give her half my wages for 20 years.
3.She divided half her superannuation and give me half.
4.She sells her mother's house as I know she has a vested interest in the property.
5.That other than as provided in these Orders, the Respondent's right, title and interest (if any) in all property in possession of the Applicant, forthwith vest in the Applicant, including, but not limited to, the following:
a) The Applicant's bank accounts;
b) The Applicant's superannuation entitlement;
c) The Applicant's motor vehicles;
d) The furniture, chattels, jewellery and personal property in the Respondent's possession (unless otherwise agreed between the parties);
e) Any shares registered in the Applicant's name; and
f) Any other monies held in accounts with any banks or financial institutions in the Respondent's name, or in which the Applicant has an interest.
6.That other than as provided in these Orders, the Applicant's right, title and interest (if any) in all property in the possession of the Respondent, forthwith vest in the Respondent, including, but not limited to the following:
a) The Respondent's bank accounts;
b) The Respondent's superannuation entitlement;
c) The Respondent's motor vehicles;
d) The furniture, chattels, jewellery and personal property in the Respondent's possession (unless otherwise agreed between the parties);
e) Any shares registered in the Respondent's name; and
f) Any other monies held in accounts with any banks or financial institutions in the Respondent's name, or in which the Respondent has an interest.
7.Unless otherwise specified in these Orders:
a) Each party shall be solely liable and will indemnify and keep each other indemnified in relation to an and all liabilities presently in the name of each of them respectively;
b) Each party shall be solely entitled to the exclusion of the other party to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders: and
c) Each party shall be solely liable for and indemnify the other party against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
8.The parties have liberty to apply in relation to the implementation of these Orders.
9.The Applicant was born [in] 1969.
10As is clearly implicit in the husband’s position, he holds the view that the wife is not entitled to any asset in which he has an interest and conversely that he has an entitlement to any asset the wife has an interest in or may have in the future.
11In the trial before me there were significant outstanding issues as to the quality of the valuation evidence, to the extent there was any, and significant issues arising from the husband’s failure to comply with his obligations of disclosure, a subject that I refer to later in these reasons.
12The trial proceeded before me as scheduled on 12 June 2017, at the end of which I ordered the proceedings be adjourned to a date to be fixed in order for the parties’ to inspect documents subpoenaed from ANZ Bank.
13On 18 September 2017, the wife filed an application seeking the matter to be relisted.
14The matter came before me again on 19 October 2017. The husband did not appear. At that time I ordered that the wife have leave to rely upon her further affidavit sworn 4 September 2017, and subsequently reserved my decision. The wife also filed in Court an updated schedule of assets and liabilities and an amended minute of final orders sought, as set out below: (annexure omitted)
MINUTE OF FINAL ORDERS SOUGHT BY THE APPLICANT
1.The parties be and are hereby appointed joint trustees for sale of [Property A].
2.The parties forthwith market the property for sale with an agreed agent and at an agreed price and failing such agreement;
a)The Wife notify the Husband of the names of three (3) agents;
b)The Husband forthwith nominate one; and
c)The parties do all things and sign all documents necessary to appoint that agent and to market the property at a price he or she recommends.
3.The parties each do all things and sign all documents necessary to cause the proceeds of the sale of the property to be disbursed in the following order of priority:
a)To the payment of the whole of the principal and interest outstanding on the Mortgage encumbering the property;
b)To the payment of the costs, expenses and commission of the Real Estate Agent or Agents acting on the sale of the property;
c)To the payment of the costs, fees and disbursements for the legal costs of the sale of the property;
d)A sum equal to 50% of the difference between $408,624 and the capital sum of the Mortgage debt at the time of discharge, to the Wife;
e)The balance be divided between the parties to affect an overall equal division, having regard to; the values of assets in the annexed schedule, and, the manner in which the assets are divided between the parties in accordance with these orders.
4.For the purposes of paragraphs 1 through 3 above, the parties’ instructions to their sales and settlement agents shall be joint instructions but the parties shall each be at liberty to liaise with and to request and receive all information and material from the sales and settlement agents independently of one another.
5.The Husband maintain insurance over the property to market value of the improvements and indemnify the Wife for any failure to do so.
6.There be liberty to apply with respect to the sale of the property.
7.Other than as provided in these Orders, the Husband’s right, title and interest (if any) in all property in possession of the Applicant, forthwith vest in the Applicant, including, but not limited to, the following:
a)The Wife’s bank accounts;
b)The Wife’s superannuation entitlement;
c)The Wife’s motor vehicles;
d)The furniture, chattels, jewelry and personal property in the Wife’s possession (unless otherwise agreed between the parties);
e)Any shares registered in the Wife’s name; and
f)Any other monies held in accounts with any banks or financial institutions in the Applicant’s name, or in which the Applicant has an interest.
8.Other than as provided in these Orders, the Wife’s right, title and interest (if any) in all property in the possession of the Husband forthwith vest in the Husband including, but not limited to, the following:
a)The Husband’s bank accounts;
b)[Property B];
c)The Husband’s superannuation entitlement;
d)The Husband’s s motor vehicles;
e)The furniture, chattels, jewelry and personal property in the Husband’s possession (unless otherwise agreed between the parties);
f)Any shares registered in the Husband’s name; and
g)Any monies held in accounts with any banks or financial institutions in the Husband’s name, or in which the Respondent has an interest.
9.Unless otherwise specified in these Orders:
a)Each party shall be solely liable and will indemnify and keep each other indemnified in relation to any and all liabilities presently in the name of each of them respectively;
b)Each party shall be solely entitled to the exclusion of the other party to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders; and
c)Each party shall be solely liable for and indemnify the other party against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
10.The parties have liberty to apply in relation to the implementation of these Orders.
15On 6 November 2017, that is to say after I had reserved my judgment, a further form 2 application was filed on behalf of the wife seeking to amend her final orders sought.
16In accordance with the directions I gave for the listing of the matter, particularly given that a date had been set for the delivery of judgment, I directed that an unsealed copy of the application, supporting affidavit and proposed amending minute be served personally upon the husband. Service was effected in accordance with my direction and in response thereto the husband attended at the offices of the wife’s solicitors and provided them with an affidavit and a minute of orders that he would seek, albeit in identical terms to that which I have set out above.
17In the case of the documents served on the wife’s solicitors by the husband and representing his final position. There was no change from that which he had previously sought.
18The wife’s proposed minute, however, did include a significant change in that she now proposes that the husband have the opportunity to retain Property A rather than simply seeking a sale.
19Having regard to the material contained in her affidavit in support of the leave to amend her position and the minute of proposed amended final orders, I was satisfied that there was no prejudice to the wife in permitting the amendment and indeed the balance of prejudice lay favourably with the husband, in that it was now proposed to give him an opportunity that the wife had previously sought not to provide. I accept that the prior minute of final orders, which I have set out above, was filed before the wife had fully considered her position.
20In the circumstances, I therefore proceed on the basis of the parties’ respective minutes of orders sought as follows, as filed pursuant to the leave I gave on 8 November 2017: (schedule omitted)
AMENDED MINUTE OF FINAL ORDERS SOUGHT BY THE APPLICANT
DATED 2 NOVEMBER 2017
1.Within 35 days of the date of these orders and as and by way of property settlement, the husband pay the wife or cause her to be paid, the sum of $600,000.00.
2.Contemporaneously with the husband’s strict compliance with paragraph 1, paragraphs 10 through 13 shall come into effect.
3.If the husband defaults in any way in his obligation arising under paragraph 1 (“husband’s default”) the parties be and are hereby appointed, immediately upon that default, joint trustees for sale of [Property A].
4.In the event of the husband’s default, paragraphs 5 though 16 shall come into immediate effect.
5.Within 48 hours of the husband’s default the parties do all things and sign all documents necessary to market the property for sale with an agreed agent and at an agreed price but if no such agreement is reached within 48 hours;
a)The Wife be at liberty to notify the Husband of the names of at least three (3) proposed sales agents;
b)Within 48 hours thereof the Husband nominate one of the sales agents proposed by the wife; and
c)Within 48 hours thereof, the parties do all things and sign all documents necessary to;
i)appoint that sales agent; and
ii)to market the property,
at a price and upon such other terms of sale, including as to method, as he or she recommends from time to time.
6.Within 21 days of the appointment of the selling agent, the parties each do all things and sign all documents necessary to cause the proceeds of the sale of the property to be disbursed in the following order of priority:
a)To the payment of the whole of the principal and interest outstanding on the Mortgage encumbering the property;
b)To the payment of the costs, expenses and commission of the sales agent and settlement agent acting on the sale of the property;
c)To the payment of the costs, fees and disbursements for the legal costs of the sale of the property;
d)A sum equal to 50% of the difference between $408,624 and the capital sum of the Mortgage debt at the time of discharge, to the Wife.
e)The balance be divided between the parties to affect an overall equal division, having regard to; the values of assets in the annexed schedule;
and, the manner in which the assets are divided between the parties in accordance with these orders.
7.Subject to paragraphs 14 and 15, , the parties’ instructions to their sales and settlement agents shall be joint instructions but the parties shall each be at liberty to liaise with and to request and receive all information and material from the sales and settlement agents independently of one another.
8.The Husband maintain insurance over the property to market value of the improvements and indemnify the Wife for any failure to do so.
9.There be liberty to apply with respect to the sale of the property.
10.Other than as provided in these Orders, the Husband’s right, title and interest (if any) in all property in possession of the Applicant, forthwith vest in the Applicant, including, but not limited to, the following:
a)The Wife’s bank accounts;
b)The Wife’s superannuation entitlement;
c)The Wife’s motor vehicles;
d)The furniture, chattels, jewelry and personal property in the Wife’s possession (unless otherwise agreed between the parties);
e)Any shares registered in the Wife’s name; and
f)Any other monies held in accounts with any banks or financial institutions in the Applicant’s name, or in which the Applicant has an interest.
11.Other than as provided in these Orders, the Wife’s right, title and interest (if any) in all property in the possession of the Husband forthwith vest in the Husband including, but not limited to, the following:
a)The Husband’s bank accounts;
b)[Property B];
c)The Husband’s superannuation entitlement;
d)The Husband’s s motor vehicles;
e)The furniture, chattels, jewelry and personal property in the Husband’s possession (unless otherwise agreed between the parties);
f)Any shares registered in the Husband’s name; and
g)Any monies held in accounts with any banks or financial institutions in the Husband’s name, or in which the Respondent has an interest.
12.Unless otherwise specified in these Orders:
a)Each party shall be solely liable and will indemnify and keep each other indemnified in relation to any and all liabilities presently in the name of each of them respectively;
b)Each party shall be solely entitled to the exclusion of the other party to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders; and
c)Each party shall be solely liable for and indemnify the other party against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
13.The parties each do all things and sign all documents necessary to give meaning and effect to these orders.
14.In the event the husband fails or refuses to comply with any obligation arising under orders 5, 6 and 8, the wife be at liberty to apply at short notice for an order that she be appointed sole trustee for sale of the property and for exclusive occupation.
15.In the event the husband fails or refuses to comply with any obligation arising under these orders requiring that he execute any document, the wife then be at liberty to request that the Principal Registrar do so in his stead.
16.The parties have liberty to apply in relation to the implementation of these Orders.
17.The Husband pay the wife’s costs to be assessed if not agreed.
MINUTE OF FINAL ORDERS SOUGHT BY THE [HUSBAND]
…
1.The parties do all acts and things and sign documents that I received from my ex-partner for $850,000 (Eight Hundred and Fifty Thousand Dollars) due to me for supporting her for 20 years.
2.The parties do all acts and things and sign all documents that [Ms Segari] places half of her weekly wages for the next 20 years into my stipulated account for the next 20 years as I had to give her half my wages for 20 years.
3.She divided half her superannuation and give me half.
4.She sells her mother's house as I know she has a vested interest in the property.
5.That other than as provided in these Orders, the Respondent's right, title and interest (if any) in all property in possession of the Applicant, forthwith vest in the Applicant, including, but not limited to, the following:
a) The Applicant's bank accounts;
b) The Applicant's superannuation entitlement;
c) The Applicant's motor vehicles;
d) The furniture, chattels, jewellery and personal property in the Respondent's possession (unless otherwise agreed between the parties);
e) Any shares registered in the Applicant's name; and
f) Any other monies held in accounts with any banks or financial institutions in the Respondent's name, or in which the Applicant has an interest.
6.That other than as provided in these Orders, the Applicant's right, title and interest (if any) in all property in the possession of the Respondent, forthwith vest in the Respondent, including, but not limited to the following:
a) The Respondent's bank accounts;
b) The Respondent's superannuation entitlement;
c) The Respondent's motor vehicles;
d) The furniture, chattels, jewellery and personal property in the Respondent's possession (unless otherwise agreed between the parties);
e) Any shares registered in the Respondent's name; and
f) Any other monies held in accounts with any banks or financial institutions in the Respondent's name, or in which the Respondent has an interest.
7.Unless otherwise specified in these Orders:
a) Each party shall be solely liable and will indemnify and keep each other indemnified in relation to an and all liabilities presently in the name of each of them respectively;
b) Each party shall be solely entitled to the exclusion of the other party to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders: and
c) Each party shall be solely liable for and indemnify the other party against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
8.The parties have liberty to apply in relation to the implementation of these Orders.
9.The Applicant was born [in] 1969.
The composition of evidence
21For the purposes of trial the wife relied upon the following:
·her trial affidavit sworn 3 February 2017 and filed 6 February 2017;
·her further affidavit sworn 4 September 2017 and filed 5 September 2017;
·her statement of financial circumstances sworn 13 June 2016 and filed 14 June 2016;
·her statement of financial circumstances sworn 3 February 2017 and filed 6 February 2017; and
·her updated statement of financial circumstances sworn and filed 8 June 2017.
22The wife also relied upon the two affidavits and annexed reports of [Mr O], both sworn and filed without leave on 8 June 2017, a licensed valuer who had been instructed to undertake valuations of Property A and Property B, the subject matter of the husband’s inheritance. At the opening of trial I expressed some concern regarding the affidavits of Mr O being filed so late in the proceedings and without leave, however, the husband ultimately accepted the valuation evidence regarding Property A, but retained some ambivalence towards that of Property B, as discussed.
23The husband relied upon his trial affidavit sworn and filed 12 April 2017 and a statement of financial circumstances sworn 29 March 2017 and filed 4 April 2017.
24At trial the wife was represented by Mr Beckerling of counsel and the husband represented himself.
25The wife was cross-examined by the husband. The husband did not seek to cross-examine Mr O.
26The husband was cross-examined by the wife’s counsel.
27I had the opportunity to observe each of the parties whilst giving their evidence and in the case of the husband his demeanour throughout the proceedings, both whilst giving evidence and as a cross-examiner.
28The wife impressed me as a witness who endeavoured to do her very best and to be forthright in her answers. I accept that she was an accurate historian and a witness who was prepared to give credit where credit was due, notwithstanding the bullying and offensive cross-examination that she had to face from the husband.
29The husband was unimpressive. He was aggressive to the Court, Mr Beckerling and the wife. He was argumentative, attempted to be bullying, rude and generally aggressive in his demeanour. It was considered necessary to have a security presence in Court throughout the trial such was the nature of the husband’s aggression towards counsel for the wife and his general presentation.
30The husband had done little to help himself in the presentation of his case. He had failed in his obligation of disclosure and despite the fact that he had attached a list of documents to his trial affidavit, the same was inadequate and contained reference to only two documents, other than public records, that predated the parties’ separation, those two documents being his certificate in [carpentry] and certificate in supervising. Other than reference to certificates of title issued in 1991 and the husband’s trade certifications as discussed, the earliest document contained in his list was September 2015.
31The husband was both strident and adamant in his belief that the wife was entitled to nothing, a view he expressed frequently and forcefully during the course of the trial.
32Notably, when questioned about the wife’s contribution of a non-financial nature the husband’s response was “whatever she did, I did just as much” and as to the suggestion by counsel that there should be recognition of the wife’s contribution to obtaining and maintaining the parties various properties, the answer was “no, no, no – she gave no contributions – I did it all”.
33At the opening of trial I explained to the husband at length the process the proceedings would follow, in particular I cautioned and reminded him of how to conduct himself in Court and of the necessity to question on matters in dispute. Despite this, the husband did not seek to cross-examine Mr O, yet, in his affidavit Mr O deposed as follows:
9.I was previously engaged by [Law Firm A] [the solicitors for the wife] to value [Property A] on 14 September 2016.
10.I contacted [Mr Segari], twice by telephone on 16 September 2016. During the first phone call, I introduced myself and [Mr Segari] hung up the phone on me.
11.I called [Mr Segari] back straight away and he told me words to the effect that he would go to jail rather than let me through the property. He asked me what would happen if he breached the Court Order and I told him that I did not know.
34By way of explanation as to why he had not allowed Mr O on Property A, the husband said “I said to [Mr O] she’s got to pay you the money, because I don’t have any”, she being the wife, and that his “cheque account was cut”.
35The husband was in attendance on 26 July 2016, although initially he denied this, when Magistrate Andrews ordered that “the costs of the valuation be paid equally by the parties with the Respondent having permission to draw one half of the costs from the reverse mortgage secured against [Property A]”. On this same date orders were made restricting the husband’s ability to draw funds from the reverse mortgage on Property A; an order the husband had knowledge of and specifically directed the Court’s attention to during trial.
36The husband received correspondence from the wife’s solicitors on 25 August 2016, 6 and 14 September 2016 attempting to implement the orders of 26 July 2016, to which the husband failed to adequately respond, to which I refer later in these reasons. When pressed further about this correspondence and his lack of response, the husband asserted that during the conciliation conference conducted on 4 October 2016 the wife’s solicitor “came up to me and threatened me. He threatened me with violence”, but was unable to provide any particulars. I reject the husband’s allegations in this regard.
37On 7 June 2017, the date of the Property A valuation, as seen Mr O telephoned the husband in order to gain access to the property. The husband was unable to recall this conversation, stating that recollection was difficult as he receives “500 calls a day”, primarily from his daughter. The husband accepted Mr Beckerling’s proposition that as he was unable to recall this incident the Court should accept Mr O’s evidence.
38Typical of the husband’s presentation, it appears that his position in relation to the valuations was motivated by his firmly held belief that the wife was entitled to nothing and therefore there was no point allowing Mr O through Property A, to put it at its highest and fairest to him. I consider it more likely that the same was just typical of the attitude adopted by the husband towards the wife and the appropriate engagement with the proceedings.
The approach to be adopted
39The approach to matters such as this has been considered by the High Court of Australia and the Full Court of the Family Court of Australia on numerous occasions, but particularly since the decision of the High Court of Australia in Stanford v Stanford (2012) 247 CLR 108.
40The decision of Stanford v Stanford (supra) and the process contemplated thereby was considered by the Full Court of the Family Court in Bevan & Bevan (2013) FLC 93-545 in the joint judgment of Bryant CJ and Thackray J. In particular at paras [73] and [74] of their judgment, and further at para [77], as follows:
73.The High Court in Stanford has laid down three “fundamental propositions” which will provide useful guidance to trial judges in approaching the task under s 79. These were recited above, and could be summarised thus:
1.Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);
2.The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;
3.A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.
74.The first “fundamental proposition”, which requires identification of existing legal and equitable interests in property, is nothing new, since “property” has always been understood as incorporating equitable, as well as legal, interests.
…
77.Once it is recognised a court has power to alter both legal and equitable interests, it follows that it is necessary first to identify all property in which the parties have either a legal or equitable interest. Since the issue does not arise here, we will not express a concluded view about the post-Stanford controversy concerning the extent to which it is necessary to decide whether – as between the parties – the legal title accurately reflects their respective interests. However, where it is accepted that justice and equity require the making of an order, it would seem unnecessary to complicate proceedings by deciding whether one party has an equitable interest in property held by the other, since the ultimate outcome will not be determined by application of equitable principles but rather by reference to ss 79(4) and 75(2).
41Further, at para [84] their Honours consider the expression “just and equitable” and I set that out in full.
84.Just as the expression “just and equitable” does not admit of exhaustive definition, it is not possible to catalogue the “range of potentially competing considerations” that may be taken into account in determining whether it is just and equitable to make an order altering property interests. However, in our view, it would be a fundamental misunderstanding to read Stanford as suggesting that the matters referred to in s 79(4) should be ignored in coming to that decision. Indeed, such a reading would ignore the plain words of s 79(4), which make clear that in considering “what order (if any)” to make, the court must take into account the matters referred to in that subsection (emphasis added).
42I also have particular regard to the judgment of Finn J in Bevan & Bevan (supra). Whilst she was in agreement with the Chief Justice and Thackray J, she specifically posed how it was that the first step to be taken in resolving any dispute such as this, namely, was to answer the question: “Is it just an equitable for the court to make an order?”. She said, and I quote from para [166] of the judgment:
166.The point in the decision making process at which the question of whether it is just and equitable to alter property interests of either party is to be addressed must depend on the circumstances of each particular case. There can be no hard and fast rule.
43She goes on to say:
167.However, as a general rule, it will, in my view, be useful to identify at a very early point in a judgment what are the existing property interests of the parties and what are the orders that each party is seeking in relation to those interests.
168.As already suggested, where both parties are seeking alterations of interests in one or other’s property, the question as to whether or not it is just and equitable to make any order, will be more easily answered.
169.Findings of fact concerning the parties’ financial history (i.e. their contributions) and their present circumstances and future prospects made in the context of s 79(4) will also assist, but such findings cannot (according to Stanford) be conclusive in determining whether or not it is just and equitable to make an order altering any particular property interest.
44I take into account specifically and emphasise the words of her Honour referring to any particular property interest.
The asset pool
45The wife has defined the asset pool as follows in her papers for the judge filed 7 June 2017:
| Assets & Ownership | |||
| No | Assets | Husband | Wife |
| Assets | |||
| 1 | [Property A] | $1,725,000 | |
| 2 | [Property B] | $300,000 | |
| 3 | Furniture @ [Property A] | $10,000 | |
| 4 | Wife's furniture & effects | $10,000 | |
| 5 | Husband’s [Holden Commodore] (2004) | $3,500 | |
| 6 | Husband’s trailer & tools | $1,000 | |
| 7 | Wife's cash at bank | Omitted | |
| 8 | Husband's cash at bank | omitted | |
| 9 | |||
| 10 | Total Cash Assets | $2,039,500.00 | $10,000 |
| 11 | |||
| 12 | Liabilities | ||
| 13 | |||
| 14 | Home mortgage | $350,000 | |
| 15 | Wife's credit cards | $22,081 | |
| 16 | |||
| 17 | Total Liabilities | $350,000 | $22,081 |
| 18 | |||
| 19 | Total Net Cash Assets | $1,689,500 | -$12,081 |
| 20 | |||
| 21 | Superannuation | ||
| 22 | |||
| 23 | Wife’s Super | $50,052 | |
| 24 | |||
| 25 | Total Super | $0 | $50,052 |
| 26 | |||
| 27 | Total Net Assets | $1,689,500 | $37,971 |
| 28 | Total Combined | $1,733,155 | |
| 29 | |||
| 30 | Disputed Items - Assets | ||
| 31 | |||
| 32 | Wife’s cash at bank | $7,747 | |
| 33 | Husband's cash at bank | $100 | |
| 34 | Husband's reverse mortgage withdrawals (for 75(2)(o) | TBC | |
46The wife amended the defined asset pool on 19 October 2017 as follows:
Schedule of The Final Orders
Assets & Ownership No Assets Husband Wife Assets 1 [Property A] * $1,600,000 2 [Property B] $616,666 3 Furniture @ [Property A] $10,000 4 Wife's furniture & effects $10,000 5 Husband’s [Holden Commodore] (2004) $3,500 6 Husband’s trailer & tools $1,000 7 Wife's cash at bank omitted 8 Husband's cash at bank omitted 9 10 Total Cash Assets $2,231,166.00 $10,000 11 12 Liabilities 13 14 Home mortgage (estimate)* $408,000 15 Wife's credit cards $22,081 16 17 Total Liabilities $408,000 $22,081 18 19 Total Net Cash Assets $1,823,166 -$12,081 20 21 Superannuation 22 23 Wife’s Super $50,052 24 25 Total Super $0 $50,052 26 27 Total Net Assets $1,823,166 $37,971 28 Total Combined $1,861,137 29 * The values of these items will be determined at settlement. 47The husband had defined the same in his trial affidavit as follows:
Assets
Estimated Value (S)
[Property A]
$E1,725,000.00
Household Furniture
$E20,000.00
[Mr Segari’s] 1/3 share in [Property B]
$E300,000.00
[Property C] (Mother’s house)
$E450,000.00
[Mr Segari’s Holden Commodore]
$1,000.00
Trailer and tools
$E1,000.00
Undisclosed
[Ms Segari’s] Accounts
$E6,069.00
[Business A] Account
$E306.00
[Mr Segari’s] Account
$100.00
[Ms Segari’s] Superannuation
$E46,241.00
[Mr Segari’s] Superannuation
Undisclosed
Assets Sub-Total
$E2,549,716
Liabilities
Loan secured against [Property A]
$400,000
[Ms Segari’s] Credit Cards
$E12,586.00
[Mr Segari’s] Credit Card
Undisclosed
Liabilities Sub-Total
$E412,586.00
48In each case the title is reflected in the column in which the same is included in the wife’s schedule of assets and liabilities. In each case, the parties’ schedules were prepared prior to the presentation of the valuation evidence.
49The husband has sought to include one “[Property C] (Mother’s House)” in his schedule, which is presumed to be the wife’s mother’s home in [Suburb A]. There was no evidentiary basis for its inclusion, other than comments made by the husband in argument against any reference to his inherited property, that the wife’s mother’s property should be included as the wife will inherit the property, accompanied by demands that I call the wife’s mother as a witness. I note that in his responding material filed 18 July 2016 the husband had sought as an interim order the “current market valuations of the houses belonging to the respondent wife’s mothr and sister”.
50The wife’s mother was seated in the public gallery of the Court and identified by the husband. She appeared to be very much alive and there was no suggestion that she did not have the capacity to make a will or that any property held by her had vested in the wife or would necessarily or irrevocably do so.
51I exclude the same from consideration in the pool.
52Property A was valued by Mr O at $1,600,000. The same was valued on a “drive by” basis as the husband refused Mr O entry into the property for the purposes of the proper completion of the valuation.
53Whilst in their papers the parties agreed the value of Property A was $1,725,000, as I propose to order the sale of Property A the market will ultimately set its value.
54Property B was valued by Mr O at $1,850,000.
55The registered owner of Property B is presently [Company A], although it appears, despite the husband’s protestations to the contrary, that the same was transferred to this corporate entity in order to undertake subdivision of the land. The husband’s protestations seemed to be based upon his lack of understanding regarding trusts and property held on trust.
56The husband did not dispute that Property B had been previously expressed to have a gross value of $3,400,000 and that the same was presently being subdivided. The husband asserted that some residual issues remain with subdivision of the property, apparently, particularly with the relevant shire. Some subdivided blocks have already been the subject of contracts for sale, although the same have not yet settled as the relevant certificates of title have not been issued.
57The husband’s expectation was that $1,800,000 fairly represented what might be returned after the costs of subdivision of Property B and that his entitlement would be one third thereof.
58Whilst I accept that the husband is in effect conceding a value, arguably against his interests, his cause was not assisted by the absence of any disclosure relating to the inheritance of the land, its transfer to Company A, the subdivision proposals, the state of approvals and any estimate of the costs of subdivision and the realisation costs of the subdivided properties. Indeed the only evidence pertaining to Property B was that presented by the wife.
59The values advanced by the husband for his household furniture, motor vehicle, trailer and tools were not challenged, nor were the figures in the wife’s accounts or her superannuation balance. As noted in the husband’s schedule contained in his trial affidavit his superannuation was “undisclosed”, as were his credit cards. Although I record that in the husband’s statement of financial circumstances he listed his superannuation interest as “NIL”. He also told the Court he would be “totally reliant on [Property A] for superannuation”.
60Each of the parties in their respective statements of financial circumstances suggested that they had household furnishings and effects of equal value, respectively $10,000 each.
61Despite the husband’s stated position insofar as the wife’s entitlement to any interest in Property A, the husband had deposed in his statement of financial circumstances that his $450,000 interest in the property represented “50 per cent” thereof. In the same document he represented his interest in Property B at $100,000, a position somewhat at odds with his trial affidavit filed five days later wherein he sets out the assets and liabilities schedule as I have included above, wherein his interest in Property B had increased three fold in value to $300,000.
62The mortgage balance on Property A was uncertain as despite a subpoena being returnable from the ANZ Bank at the commencement of the trial, the same had not been produced.
63The difficulty arises as the husband continues to draw against the mortgage, as if the same were a “reverse mortgage”, for his own purposes, which was later subject to the restrictions placed upon him by virtue of previous order, to which I refer later in these reasons.
64The husband did not produce a current mortgage statement despite its obvious relevance to the proceedings, prior orders requiring disclosure of the same and repeated requests from the wife’s solicitors. Adding further to this uncertainty was the husband’s statement of financial circumstances having listed the mortgage at $370,000, but as $400,000 in his trial affidavit a mere eight days later.
65As discussed, at the conclusion of the trial I adjourned the matter to enable compliance with the subpoena directed to the ANZ Bank and to rectify this lacuna in the evidence. I granted the parties permission to inspect and copy the documents produced and gave counsel for the wife and the husband an opportunity to be heard with respect to any documents produced by the ANZ Bank should they choose.
66As foreshadowed, the subpoena was ultimately complied with and the wife submitted further evidence regarding the mortgage over Property A.
67Property A is registered in the husband’s sole name, as is the mortgage – one ANZ Equity Manager account number ending in [XXXXX ] (“the Equity Manager account”). The relevant statements show the line of credit on the Equity Manager account increased from $277,218.68 on 25 June 2014 (two days before the parties separated), to $408,624.58 on 15 June 2017, three days after the trial commenced. Thus the equity line of credit has increased by $131,405.90.
68The wife asserted that the increase in the Equity Manager account is attributable to “regular withdrawals and payments to grocery store, liquor stores, hardware and purchases and accumulated interest”. Analysis of the ANZ Bank documents supports the wife’s observations. As such, the wife seeks that “the Court attribute the increase of $131,405.90, in that debt, to the Respondent Husband”. I note that order 3(d) of the wife’s minute of proposed orders sought filed 19 October 2017 and 6(d) of her minute filed 8 November 2017 seek that “A sum equal to 50% of the difference between $408,624 and the capital sum of the Mortgage debt at the time of discharge, to the Wife”, thus she seeks only that the husband pay her 50 per cent of the increase in the mortgage during the period from trial to its current figure.
69By reference to the parties’ schedules, statements of financial circumstances and the valuation evidence I conclude the relevant pool of assets to be as set out below.
70In setting the same out below, legal ownership is reflected in the column in which the asset or liability is placed.
| Assets & Ownership | |||
| No | Assets | Husband | Wife |
| Assets | |||
| 1 | [Property A] | $1,600,000 | |
| 2 | [Property B] | $600,000 | |
| 3 | Husband’s furniture | $10,000 | |
| 4 | Wife's furniture | $10,000 | |
| 5 | Husband’s [Holden Commodore] (2004) | $1,000 | |
| 6 | Husband’s trailer & tools | $1,000 | |
| 7 | Wife's bank accounts including [Business A] | $7,747 | |
| 8 | Husband's bank balance | Not known | |
| 9 | |||
| 10 | Total Assets | $2,212,000 | $17,747 |
| 11 | |||
| 12 | Liabilities | ||
| 13 | |||
| 14 | Home mortgage | $408,624.58 | |
| 15 | Wife's credit cards | $22,081 | |
| 16 | Husband’s credit cards | Not known | |
| 17 | Total Liabilities | $408,624 | $22,081 |
| 18 | |||
| 19 | Total Net Cash Assets | $1,803,376 | -$4,334 |
| 20 | |||
| 21 | Superannuation | ||
| 22 | |||
| 23 | Wife’s Super | $50,052 | |
| 24 | |||
| 25 | Total Super | $0 | $50,052 |
| 26 | |||
| 27 | Total Net Assets | $1,803,376 | $45,718 |
| 28 | Total Combined | $1,849,094 | |
71The husband is the sole registered proprietor of Property A and it was not disputed that he has a one third beneficial interest in Property B.
72The wife by her application seeks to vary the husband’s interests in Property A to the extent of 50 per cent. In his closing submissions, Mr Beckerling of counsel for the wife submitted that after hearing the evidence a 45/55 adjustment in favour of the husband would be “about the limit”.
73Any presumptions as to the use and benefit of Property A that may have subsisted during the course of the parties’ marriage have now been lost consequent upon the parties’ separation.
74As I have particularised further below, the wife’s contribution to the properties acquired during the parties’ relationship has been largely non-financial, other than a very specific payment in reduction of the Property A mortgage made by her upon the sale of another property to which I have referred below.
75Having regard to the matters referred to by the Full Court of the Family Court in Bevan & Bevan (supra), I am satisfied that in the circumstances it is just and equitable to make an order for the variation of property.
76In determining what orders are to be made the Court is to have regard to the matters prescribed in s 79(4) of the Family Law Act 1975 (Cth) (“the Act”) as follows:
(4)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.
The parties’ respective contributions
77As can be seen from the above extract of the Act, no weighting is given to one contribution over the other, in other words non-financial contribution or contribution as a homemaker and parent is not subservient or lesser to contribution of a direct or indirect financial nature.
78The wife recounts the history of the relationship and the parties’ respective contributions as I have set out hereunder.
79At the commencement of the relationship the wife had cash of approximately $10,000 arising from a personal injury claim and a motor vehicle. She was employed as a [receptionist] with an income of approximately $25,000 per annum and did not have any significant liabilities.
80The husband had an interest in a unit in [Suburb B] which appeared to be a part of a development that the husband had undertaken in the course of his trade as a [carpenter]. The equity in the husband’s unit developed but was not defined by the husband, although the husband claimed that he had “2 houses and 1 unit” to an approximate value of $1,400,000 at the commencement of the relationship. During the trial Mr Beckerling questioned the husband further regarding the totality of properties he owned at the commencement of the parties relationship:
BECKERLING, MR: Now, you’ve said in your material that at the commencement of the relationship…you had two houses and a unit, that’s what you said.
[SEGARI], MR: That’s right, 98’, I had another one there too, which I can’t remember it was 98’, I still had that one.
BECKERLING, MR: Your portfolio just grows by the minute.
[SEGARI], MR: Yeah, bloody oath mate, I’m a [qualified tradesman].
81The husband also suggested that he had held a property on trust for his father, a property he was “looking after”.
82The husband referred to certificates of title annexed to his trial affidavit, of which there are two pertaining to two units in Suburb B, both of which appear to have been subject to mortgage security in favour of the Commonwealth Bank of Australia and one of which, at least, was transferred on 22 April 1991. The relevant schedule of dealings is not attached to the second certificate of title.
83There is no evidence as to the value of these properties nor is there any evidence as to the extent of the debt secured by the units. Further, as seen, evidence provided by the husband in this regard was lacking.
84The wife deposed to having been employed in a full-time capacity until she became pregnant with P in 1993, at which time she became too ill with the pregnancy to continue working. She says it was a joint decision that she would cease employment at that point.
85In 1993 she sold her motor vehicle and utilised her savings, together with the proceeds of the sale of the vehicle, to discharge a taxation debt of the husband’s in the sum of $18,000. When questioned about this debt the husband initially stated “I’ve had that many tax debts I can’t remember man”, however when asked whether the wife had paid this liability out vehemently denied such a proposition.
86The husband recounted the circumstances as:
13.[Ms Segari] worked in a [retail business] and was the Manager. After 3years of marriage she quit her job and decided not to return due to her not getting on with her workers. To my dismay she had no intention of returning to work.
87It was not disputed by the wife that she took several years off paid employment coinciding with the birth of the parties’ children. She says, and her evidence was not effectively challenged, that the husband expected her to look after the family and the domestic aspects of the household.
88She says that during this period she received family payments and benefits which she used, together with an allowance from the husband of $150 a week during periods when he was working, to meet expenses of the household.
89The wife returned to part-time paid employment between 2002 and 2005 as a [receptionist] and thereafter worked in various part-time positions primarily as [an administrator], ultimately starting her own business “Business A” in 2008. The husband agreed that the wife worked part-time during this period, “but that money barely covered her expenses. She didn’t give me one cent at all”.
90The wife stated that she was financially responsible for expenses including living expenses, food, car registration (for her vehicle), contents insurance, council rates, electricity and gas bills, the children’s school books and uniforms and she also purchased furniture, whitegoods and other household items.
91In June 2003 the wife was able to secure the purchase of an investment property [Property D] in her sole name for the sum of $127,000. The contract, a copy of which is annexed to her trial affidavit, shows that the same was subject to her securing finance in the sum of $116,750, which I observe she would not have been likely to obtain had she not been in paid employment.
92The wife held Property D until 2009, at which time it was sold. The wife was able to save $50,000 of the proceeds of sale. The wife asserted that she used these funds to pay off credit cards or other outstanding debts she or the parties jointly had. In or around March 2011, she transferred $45,000 from her savings to reduce the mortgage on Property A, deposing that at that time the parties “were in financial hardship”. The husband asserted that the sum transferred was $40,000.
93The husband claims to have repaid the sum to the wife, however she denies that and the husband proffered no evidence in support of this contention.
94The wife stated that the balance of the proceeds of sale were utilised within the household and to buy a car for the parties’ son, P.
95Notwithstanding the husband’s repeated insistence during the course of the proceedings that the only contribution of relevance was financial, on his own case his financial contribution was significantly variable as he was subject to the whims of the economy in terms of obtaining employment in his trade as a [carpenter]. At times the family was dependent upon social security benefits and on other occasions the husband had an income in excess of $100,000.
96The husband deposed:
19.I was primarily financially responsible for the payment of the mortgage, the upkeep of tools and vehicles, mobile phones and all household bills and my family expenses. [Ms Segari] only paid for the water bills during the last 3 years of the relationship. I gave her an allowance of $350 per week. …
97The wife does not dispute that the husband was primarily responsible for the accounts as he suggests, although she deposed that the husband “only paid for the water bills during the last 3 years of the relationship”. The husband accepted the wife was responsible for the accounts during the last three years of the relationship, but further asserted that:
52/ The only reason my ex-partner payed power bills in the last 3 years of our marriage is because she wanted to keep the air-conditioner on all night long
53/The only reason she payed the gas and water bills in the last 3 years of our marriage is because she would take half our showers.
54/The only reason she payed content insurance in the last 3 years of our marriage is because she had expensive computers.
55/The last 3 years of our marriage she would go to the shop and spend 400 dollars on shopping when the fright was still full and I would have to throw food out.
98Again, as is evident, the husband sought to diminish any contribution made by the wife.
99The husband has not worked since 2010. He deposed to having received $150,000 from his father which he says he “used to retire with”, although it is unclear from the evidence as to when the payment was received.
100Since 2010 the wife has continued to be in employment and in the three years prior to separation earned incomes ranging from $22,841 to $38,801.
101The husband has failed to disclose any of his taxation returns. Further, arising in the course of an angry retort by the husband when being cross-examined about his failure to produce financial records, the husband sought to shift blame for this upon the wife, claiming that “She did all my books and that, she’s got all my tax returns”.
102The husband has steadfastly refused to acknowledge that the wife’s income earned during the course of the relationship in any way assisted the household, despite his agreement that the wife was responsible for the accounts towards the end of the marriage, rather he would suggest that the wife retained any benefit received by her for her sole use absolutely.
103During the course of the parties’ relationship they actively purchased and sold properties and utilising the husband’s trade skill were able to renovate and/or subdivide the properties. They resided in some of the properties during the process and others were purely for investment.
104It is the wife’s case that she was actively engaged in assisting the husband through sourcing materials, liaising with relevant administrative authorities and in one case undertaking proceedings in the State Administrative Tribunal.
105Upon the wife’s resumption of employment in 2002 her unchallenged evidence was that she worked not less than four days per week. Recognition by the husband of this contribution by the wife was sought immediately to be recanted by the husband through his attempt at minimising the wife’s efforts and the hours of time that it took. The base proposition, however, remained and is consistent with the husband’s sustained representations that the wife contributed nothing. He also sought to claim responsibility for the wife’s [administrative] skills, claiming “I taught her how to be [an administrator]. I taught her all the [relevant] laws. I taught her how to do everything”, despite previously putting to the wife that he had supported her whilst she completed a “[business administration]” course.
106On the wife’s case the parties were in a partnership in the fullest sense and whilst there is no doubt that the husband’s trade presented the family with opportunities to develop properties and provide a source of income, he was fully supported in this endeavour by the wife. Further, at times the wife became the primary income earner in the relationship during periods of downturn in [his] industry or when the husband was otherwise unable to obtain employment contracts.
107Property A was purchased in 2004 in the husband’s sole name. It was not disputed that the husband worked on the [renovation] of the property on weekends and weekdays if he was not otherwise employed.
108In 2009 the husband’s mother passed away. The husband and his two siblings received Property B pursuant to the terms of her will. As seen, the property is currently in the process of being subdivided.
109It is the wife’s case that by way of non-financial contributions she undertook the majority of the day to day parenting of the parties’ two children, was involved in their schooling and assisted with their homework. Further, she undertook the majority of household and domestic duties and house maintenance in addition to working part-time and undertaking the accounts for the business. The wife asserted that these responsibilities were carried out in the context of the husband having “some mental health issues and I supported him to get better. The Respondent Husband had difficulty retaining jobs because of his attitude – he constantly quit jobs. I tried to support him and encourage him to keep working and not give up”. The husband did not address these assertions, however no supporting medical evidence was provided by the wife in this regard.
110I also accept the wife’s evidence that she was actively involved in the acquisition of properties for improvement and subsequent resale.
111In addition to failing to recognise any financial contribution made by the wife (with the seemingly accidental acknowledgment of her [administration skills]), as touched upon the husband fails to recognise any non-financial contribution or contribution made by the wife as having any value and frequently attempted to minimise the same. The following exchange between the husband and counsel for the wife encapsulates his perspective on contribution:
[SEGARI], MR: I said to you before, you can wash all the floors you want, clean all the windows you want, mow all the lawns you want, unless you’ve got money, especially when you’ve got kids, the only thing you’ll be cleaning is the boot of your car.
BECKERLING, MR: Is what why you say that [Ms Segari’s] contribution was not as valuable as yours sir?
[SEGARI], MR: Of course not. Of course it wasn’t. If I rang up the bank manager and said I can’t pay the mortgages for the month, you know what he’d say to me? Sell your house, they’ve done it before.
112Consistent with the husband’s refusal to acknowledge any contribution made by the wife as having any value, the husband in his trial affidavit, which appears largely to be a replication of the wife’s but with positive attributes that she has advanced for her case substituted by the husband for his advance, deposed as to non-financial contributions as follows:
NON-FINANCIAL CONTRIBUTIONS
24.When me and my ex-partner married she never done any cooking or domestic duties. I predominantly did most of the cooking and domestic duties for the first five years of our marriage. I taught her how to cook and do most domestic duties. After that we shared most of the duties she did internal duties and I did external duties. Also, she cooked meals I would wash up and I repaired the cars, taught the kids how to swim, how to ride bikes, took my son football training and daughter to dancing lessons, pick-ups and drop off to and from school. I would do a barbeque 3 times a week, I would sit by my children's hospital beds after work and sleep overnight at the hospital, I also taught my kids how to walk.
25.I also worked at their school fixing reticulation, mowing lawns and cleaning the grounds, whatever needed doing to save the school money so the money could be used in other areas such as sports.
26.My ex-partner had some medical problems mainly due to her inactivity. I tried many times to encourage her to exercise to improve her health but this was to no avail, she would smoke constantly and would take many, many different drugs which is why she suffered from depression.
…
[MS SEGARI]
28.I would come home from working a 12 our day and find the house a mess, the kids had not been showered or fed and she would be on the phone for hours talking to her mother and sisters. So, I would spend my evenings making sure the kids were clean and fed, cooking meals, washing the dishes. I paid for a cleaner two days a week to do most of the housework because [Ms Segari] was lazy.
CONTRIBUTION TO THE WELFARE OF THE FAMILY INCLUDING CONTRIBUTION AS A HOMEMAKER AND PARENT
29.I would play with the kids down the park.
30.I would put them to bed and read to them.
31.I would coach the local football team where my son played football and teach him to play football on Sundays.
32.I would take them to and pick them up from school.
33.I would attend school outings with my kids as parent volunteer.
34.I would take the children to Church with me on a Sunday.
35.I would also buy books, clothes and toys for them.
113The wife does not dispute that the husband contributed in non-financial ways and to the parenting of the children, however, there is a logical inconsistency with the extent of his claims. For example, he claimed to have been working twelve hour days, but also having provided the majority of care for the children, denying the wife acted in this capacity. In short, he simply refuses to give the wife credit for anything.
114The wife’s evidence, as I have observed, is more logically consistent and I prefer her evidence where it conflicts with that of the husband.
115Post-separation the husband has continued to reside in Property A and on his own case has increased the mortgage debt to meet his expenses, albeit that his ability to draw against the Property A mortgage has been restricted to $500 per week pursuant to orders made on 26 July 2016 by Magistrate Andrews.
116In his trial affidavit, the husband stated he is “currently earning $13,000 a year and on Centrelink” and in his financial statement lists his average weekly income as $300. Annexed to the husband’s trial affidavit are statements for a Hero Transaction Bankwest account ending [XXXX] for the periods 29 October 2015 to 27 January 2017. These statements show the husband receiving fortnightly Centrelink Newstart Allowance payments of approximately $500, approximately $13,000 per annum. The husband asserted at trial that he continued to receive Centrelink payments. I also note the husband received the following payments during this period:
·2 November 2015, “[Mr D Segari] rent upto 12 nov”, $650.67;
·2 February 2016, “[Mr D Segari] rent feb 16”, $341.55;
·1 June 2016, “[Mr D Segari] 2 June rent”, $479.34;
·1 July 2016, “[Mr D Segari] rent June”, $386.10;
·3 August 2016, “[Mr D Segari] rent july”, $617.25;
·In or around September 2016, “[Mr D Segari] sept rent”, $921.97;
·4 October 2016, “[Mr D Segari] rent to 6 oct”, $524.25; and
·5 December 2016, “[Mr D Segari] rent”, $782.76.
117These payments total $4,703.89 and across this roughly year long period, $45 per fortnight. Unfortunately the husband did not clearly explain these transactions or provide updated bank statements, though I note he deposed to having received “some rent from an inheritance”. The husband also did not provide any further evidence regarding his Centrelink entitlements, as in line with his overall failure to properly disclose.
118On my calculations, the husband potentially had $1,545 per fortnight at his disposal (including the $500 he was able to draw down on the Property A mortgage), however, the Court does not have before it enough clear evidence to make an assessment in relation to the husband’s financial position, other than to acknowledge that the husband receives some level of modest income, whether that be in the form of benefits or otherwise.
119Since separation the wife has resided in rental properties and currently pays $430 in rent; both P and D reside with her and do not contribute to the household expenses.
120Prior to 9 May 2017 the wife was employed as [an administrator] earning an income of approximately $75,000 per annum. In her trial affidavit she expressed concern regarding the permanency of this role and at trial confirmed her employment had been terminated. The wife expected to commence in a new role on 19 June 2017 in contracting work two days per week, for $250 per day before tax.
121Overall I am satisfied that the relationship between the parties was in essence a true partnership and that each of the parties contributed fully, albeit that the husband’s contribution was primarily financial and the wife’s not only financial but also non-financial and in that regard significantly greater than that of the husband’s.
122Notwithstanding the claimed asset position of the husband at the commencement of the parties’ relationship, about which there is little helpful evidence such that I could determine that his initial contribution outweighed that of the wife, I am satisfied that the parties have contributed equally and that on a contribution basis there should be a finding of equality save and except as to Property B.
123The wife accepted that she has made no contribution to the acquisition or development of Property B and seeks orders only as against Property A as seen from her minute.
124The same is, however, relevant to the factors prescribed pursuant to s 75(2) of the Act and as to what appears to be (at its highest) a spousal maintenance claim by the husband.
Section 75(2) factors
125Section 75(2) of the Act is incorporated by reference in s 79(4) and prescribes a list of matters that the Court should consider, where relevant, in determining whether any adjustment should be made to a contribution based assessment of the parties’ entitlements such as to achieve a just and equitable outcome.
126Not all of the factors prescribed in s 75(2) are relevant to each case.
127I set out s 75(2) below:
(2)The matters to be so taken into account are:
(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.
128I turn now to consider the factors that are relevant to this particular matter in the context of the parties’ proceedings by way of settlement of property, as I deal with the husband’s spousal maintenance claim separately below.
(a) The age and state of health of each of the parties
129The wife is 49 years of age. She deposed to having some health concerns. These conditions cause her fatigue but “do not presently affect her earning capacity”. Her evidence in this regard was not challenged.
130The husband is 57 years of age and deposed to seeking employment with lighter duties as a consequence of having been a carpenter for 40 years. He claims the same has taken a toll upon his health as may be expected. He gives no objective evidence of his current state of health.
(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
131As seen the husband has qualification as a carpenter, however he is actively seeking lighter work. The husband asserted he was looking for another job but that this search was not going well. When pressed further he stated he was completing a [further education] course in order to improve his employment prospects, but despite being a qualified supervisor had not applied for any such jobs. He does not suggest that since 2010 he has not undertaken some carpentry work, however his overall financial circumstances are not rendered capable of assessment given his absence of disclosure.
132The wife is qualified as an administrator and has been employed in that capacity. As discussed, she was employed in a full-time position with an income of $75,000 per annum, however that position recently came to an end and the wife anticipates only being employed at lower levels of income acknowledging that she was overpaid for her qualifications in her prior employment.
133She does not dispute that she has an earning capacity.
134The husband’s financial resources are significantly greater than that of the wife by virtue of his interest in Property B and the expectation that the same will return to him a sum in the order of $600,000. Again, in the absence of disclosure by the husband it is difficult to make a detailed or fully informed assessment of the likely benefit that the husband will reap from the property.
135As discussed, the husband is presently in receipt of Centrelink benefits, although he has not disclosed any documentation relevant to his Centrelink entitlements.
136There is no evidence that either of the parties have commitments to support any other person, although I accept that the wife contributed and continues to contribute towards the accommodation costs of the parties’ adult children and their day to day expenses although she has no legal obligation to do so.
(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
137The wife has superannuation entitlements as set out in the schedule of assets and liabilities.
138The husband has not disclosed any superannuation entitlements, but asserted Property A represented his retirement fund. The wife accepted that the husband “has not put any money into superannuation and, upon his retirement will be solely reliant on his assets and any Government pension that to which he may be entitled”.
(g) Where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable
139Since the parties’ separation the husband has continued to enjoy the standard of living provided by his ability to occupy Property A and enjoy the income that he has been able to earn and otherwise draw as against the mortgage. He has not had the ongoing commitments that the wife has had in terms of rent.
(o) Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
140As seen, the husband’s failure to properly comply with his obligations of disclosure has been an issue.
141On 26 July 2016, Magistrate Andrews made the following orders:
1Until further order of the Court, the Respondent, [MR SEGARI], be restrained and an injunction is hereby granted restraining him from selling, or encumbering [Property A] without the Applicant’s, [MS SEGARI], written consent.
2Until further order of the Court, the Respondent be restrained by injunction from drawing funds from the reverse mortgage secured against [Property A] without the written consent of the Applicant, save and except to meet his reasonable living expenses, limited to the sum of $500.00 per week.
3Leave be given to the Applicant to serve a copy of this order on the mortgagee in relation to the mortgage secured against [Property A].
4In the event the parties are unable to reach agreement as to the value of [Property A], then each party do all things necessary to obtain a joint valuation thereof with such valuation to be carried out within 30 days from the date of these orders.
5In the event the parties are unable to agree on the valuer to value [Property A] the Applicant, through her solicitor, shall nominate a panel of 3 valuers to the Respondent and the Respondent shall within 7 days of receipt of said panel select 1 valuer. In the event the Respondent fails to make such election the Applicant shall be at liberty to choose a valuer.
6Until further order of the Court, the costs of the valuation be paid equally by the parties with the Respondent having permission to draw one half of the costs from the reverse mortgage secured against [Property A].
7Within 14 days of these orders, the Respondent provide copies of the following documents to the Applicant’s solicitors:
(a)3 most recent taxation returns and assessments;
(b)bank statements for the past 12 months in relation to the reverse mortgage held over [Property A] by ANZ or any other financial institution;
(c)bank statements for the past 12 months in relation to all bank accounts held in the Respondent’s name;
(d)statements of all credit cards held over the last 12 months in the Respondent’s name;
(e)a current market appraisal for [Property B] in the State of Western Australia;
(f)any entitlements held in trust on the Respondent’s behalf;
(g)the Respondent’s superannuation entitlements, including overseas superannuation entitlements;
(h)all documentation relating to any income and/or expense paid to/by the Respondent to/by Centrelink; and
(i)details of the Respondent’s entitlements pursuant to any inheritance including, but not limited to copies of any relevant will.
8By no later than close of Registry on 1 September 2016, the Applicant and Respondent provide to the other party:
(a)3 most recent taxation returns and assessments;
(b)a completed superannuation information form or in the case of an accumulation fund the 2 most recent member statements;
(c)if a self-managed fund, the 3 most recent financial statements and a copy of the Trust Deed;
(d)the financial statements for the 3 most recent financial years for any relevant superannuation, partnership and trust including partnership agreements and Trust Deeds;
(e)BAS statements for the last 12 months; and
(f)appraisal of any item of property the value of which is not agreed.
9By no later than close of Registry on 1 September 2016, each party provide to the other party copies of documents concerning:
(a)financial matters contained in the party’s Form 13 Financial Statement and Conciliation Conference Document;
(b)any financial contributions made at commencement of cohabitation;
(c)any inheritances, gifts or compensation payments received after commencement of cohabitation;
(d)any purchase and disposal of assets after separation;
(e)any disposal of property since 12 months prior to the date of separation;
(f)any increase or reduction of liabilities after separation; and
(g)the value of any superannuation interests including the basis upon which such value has been calculated.
10The parties and lawyers attend a Conciliation Conference on 4 October 2016 at 9:15am, in relation to financial issues.
11By no later than close of Registry on 27 September 2016, each party provide a Conciliation Conference Document to the other party and to the Court.
12No later than 28 days prior to the date allocated for the Conciliation Conference and subject to any subsequent costs order made by the Court, waiver or exemption, the Applicant shall pay the Conciliation Conference listing fee.
13The said proceedings otherwise be transferred to the Family Court of Western Australia.
142At the time the orders were made the husband was representing himself and present in Court. He has not complied with the orders insofar as they require him to make disclosure of documents.
143Attempts by the wife’s solicitors to engage with the husband regarding the valuation of property and disclosure of documents have been met by unhelpful and threatening correspondence from the husband. In particular, on 14 September 2016 the wife’s solicitors wrote to the husband in an attempt to arrange a valuation of Property A. The response from the husband received 22 September 2016 was as follows:
I [MR SEGARI] WILL BE TAKING A RITE AGAINST YOUR LAW FIRM FOR FALSIFYING COURT DOCUMENTS, AND FOR CONTRAVENING MY CIVIL AND CONSTITUTIONAL RIGHTS, AND FOR PSYCHOLOGICAL AND MENTAL STRESS UNLESS ALL ACTION IS DROPED
144And a further response received 28 November 2016:
TO WHOM IT MAY CONCERN.
I AM WRITING IN REGARDS TO OUR RECENT COURT CASE. UNLESS ALL ORDERS ARE REMOVED IMMEDIATELY, I Will Be WRITING A LETTERS TO THE TAX DEPARTMENT. INFORMING THEM THAT MY EXPARTNER COOKED THE BOOKS AT SEVERAL [BUSINESSES]. THAT SHE WORKED AT AND RECEIVED CASH PAYMENTS, AND FALLSIFIYED TAX RETURNS. ALSO THAT SHE USED CONFIDENTIAL IMFORMATION OF MINE IN COURT. THAT SHE EXAGGERATED VALUATIONS TO EXTORT MONEY FROM ME.ALSO I Will Be WritiNG TO THE TRIPLE CCC AND LEGAL SERVICES BOARD TO HAVE YOUR LICENCE REVOKED DUE TO YOUR CONDECENDING, PATRONIZING BULLYING BEHAVIOR IN COURT, ALSO FOR FALLSIFYING VALUATIONS, USEING CONFIDENTIAL IMFORMATION AGAINST ME IN COURT. I Will Be SeekiNG IML IN COMPESATION FOR PSYCHOLOGICAL, MENTAL ABUSE. AND ALSO A JAIL TERM OF APPROX 10 YEARS WHEN YOU GET OUT OF JAIL, YOURS A HOLES WIlL BE SO BIG THEY WILL BE ABLE TO DRIVE A MAC TRUCK THRU IT
145Again, shortly prior to trial, the wife’s solicitors attempted to engage with the husband regarding a valuation and specified documents that were required to be provided by way of disclosure prior to trial, a request that was supported by a notice to produce albeit only filed on 1 June 2017. All the documents sought were relevant but were not produced by the husband.
146Since at least July 2016 the husband has been on notice of his obligation to provide relevant financial material. He has failed to do so and has responded to reasonable requests in an offensive and unhelpful manner.
Conclusion
147A consideration of the factors prescribed under s 75(2) to the extent they are relevant to these proceedings prevail in favour of the wife, however, notwithstanding those factors the wife has limited her claim as against Property A to essentially one half of the net proceeds of sale. She will however retain a greater superannuation benefit than has been disclosed by the husband and whilst it may have been open to the wife to argue, successfully, that her entitlement should be greater, I am satisfied given the limitation she has placed in her claim that the retention of the wife’s superannuation benefits without adjustment in favour of the husband is appropriately ordered, the more particularly given the future benefit the husband will receive upon the completion of the sales of the subdivided blocks of Property A.
148In the circumstances I am satisfied that the orders sought by the wife are not only reasonable but conservative and I propose to order as she has sought.
The husband’s claim for spousal maintenance
149The husband’s claim, such as it is, is not properly particularised nor properly supported.
150Before a court can make an order for spousal maintenance it must be satisfied of the requirements prescribed in s 72 of the Act which provides as follows:
72Right of spouse to maintenance
(1)A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c)for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
(2)The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.
151There is no credible evidence that would support a finding that the husband was incapacitated to work and unable to support himself. He has no obligations otherwise to support another person, nor is there evidence of any other circumstance that would prevail for the Court to make an order for spousal maintenance.
152Indeed, the husband’s own evidence was that he is actively looking for work, albeit lighter than carpentry, and there is no suggestion made by him that he does not have the capacity to undertake such work.
153I am not satisfied that the threshold requirements for making a spousal maintenance order are satisfied, nor could I be satisfied given the want of disclosure by the husband as to what his financial circumstances are in the context of any assessment of an entitlement to spousal maintenance.
154Accordingly his application will be dismissed.
Orders
155I propose therefore to make orders in terms of the minute of orders as sought by the wife and filed with my leave on 8 November 2017.
I certify that the preceding [155] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable CourtAssociate
13 November 2017
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