SHAHIDI & BEIRANVAND
[2019] FCCA 455
•16 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHAHIDI & BEIRANVAND | [2019] FCCA 455 |
| Catchwords: FAMILY LAW – Property – strike out Application for parenting orders – self-represented litigant – introduction of funds. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60I, 69ZW, 75(2), 78, 79(4) Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 |
| Cases cited: National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 Mee & Ferguson [1986] FamCA 3 Hatton v Commonwealth Attorney-General & Ors (2000) 26 Fam LR 570 |
| Applicant: | MR SHAHIDI |
| Respondent: | MS BEIRANVAND |
| File Number: | PAC 3756 of 2018 |
| Judgment of: | Judge Harman |
| Hearing date: | 16 January 2019 |
| Date of Last Submission: | 16 January 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 16 January 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Ms Druitt |
| Solicitors for the Respondent: | Amg Law Firm |
ORDERS
Strike out any Application purportedly before the Court with respect to parenting, noting that:
(a)No leave has been sought from the Court to add additional issues to the proceedings from the time that hearing dates were fixed;
(b)The requirements of section 60I of the Family Law Act 1975 have not been met.
THE COURT NOTES that the striking out of the parenting aspect of the proceedings is not a merits determination of those Applications but a reflection that they are not properly before the Court such that each party is at liberty should they consider it necessary to make such Application (subject to compliance with section 60I of the Family Law Act 1975) as they consider necessary or desirable.
Pursuant to section 78 of the Family Law Act 1975 declare that each party shall be and is hereby as against the other the sole and absolute owner at law and in equity of all property in their respective possession, custody or control including but not limited to:
(a)Any interest in real estate;
(b)All funds held by them whether in cash or on deposit with financial institution;
(c)Any motor vehicle;
(d)All items of furniture, contents and personalty in their respective possession, custody or control
Each party shall indemnify the other and hold the other indemnified forever as regards any liability in their sole name including but not limited to any mortgage encumbering property to which that party is the registered proprietor, any personal loan, tax liability of credit card debt.
Otherwise, dismiss the Application for property adjustment Orders.
Dismiss the Application for spousal maintenance.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena or pursuant to section 69ZW of the Family Law Act 1975 be returned to the person or organisation who produced same or securely destroyed.
IT IS NOTED that publication of this judgment under the pseudonym Shahidi & Beiranvand is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3756 of 2018
| MR SHAHIDI |
Applicant
And
| MS BEIRANVAND |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to issues of property adjustment and spouse maintenance under part VIII of the Family Law Act 1975.
The parties to the proceedings are a husband and wife: Mr Shahidi is the applicant and husband. Ms Beiranvand, as I will refer to her through the proceedings, is the wife and respondent.
The case outline documents filed respectively by the applicant husband, who appears on his own behalf, and by the legal representatives for the wife, suggest that there is also an issue with respect to parenting before the Court. That is not so. To the extent that such an application is suggested to be before the Court, it is impermissibly and inappropriately before the Court. That arises on two bases.
At the time that these proceedings were fixed for hearing, that which had been filed by the parties, delineating the parameters of their dispute, comprised an Initiating Application filed 13 August 2018 and a Response thereto filed 19 September 2018. Each sought relief only with respect to financial issues, orders with respect to property adjustment and spouse maintenance.
By an Amended Initiating Application filed 14 December 2018, that is, some four weeks prior to this scheduled hearing, the husband purported to join an issue with respect to parenting. The difficulties with that are manifest. Whilst I have indicated two problems, there is potentially a third. The third and the most readily identified is that the relief that purports to be sought by the further Amended Application is, without intending it in other than its technical sense, incompetent. Orders are not sought in a form capable of affording due process to the respondent or of being ordered by the Court.
Notwithstanding this, the wife, without criticism, filed an Amended Response to address that parenting issue. The wife sought orders for sole parental responsibility, that she be the sole person required to sign any document to obtain a passport for the child, that the child spend no time with the father and restraints pursuant to section 68B upon the father coming into contact with the child.
The two more fundamental reasons by which the application is not properly before the Court are as follows:
a)Once hearing dates have been allocated, it is impermissible for issues to be joined to the proceedings. That is a longstanding principle of common law. It is certainly expressed within the Family Law Rules, if not the Federal Circuit Court Rules;
b)There are requirements well beyond administrative, fundamental and legislative requirements, regarding that which is required of parties prior to commencing parenting proceedings. Compliance with section 60I is required. It is necessary for the parties to attend or attempt to attend family dispute resolution.
Section 60I(1) sets out the object of that portion of the Family Law Act 1975 dealing with Family Dispute Resolution. Parties to disputes with respect to children must, prior to making any application to the Court, attend or attempt to attend Family Dispute Resolution or obtain an exemption from that obligation as granted by a Registrar.
I readily acknowledge that, in all probability, in the circumstances of this case, any attempted attendance at Family Dispute Resolution, at least any intake or pre-FDR attendance which involved candour would likely result in an assessment that FDR was inappropriate.
I am conscious that any issue with respect to the welfare of a child is significant and important and that the paramountcy principle in section 60CA should guide any determination that is made, including to the extent that the requirements of the Act are enforced, (notwithstanding that they are requirements very much put in place by Parliament).
In this case, I am satisfied that it is appropriate to simply strike out that aspect of the relief that is sought as it is improperly before the Court. To do so does not finally determine any “right” of either party. Either party is free to make application, should they wish to, whether by reference to attendance at Family Dispute Resolution and obtaining a certificate, whatever that certificate may indicate, or an application for exemption made to a Registrar.
The issues with respect to the child are far from complex. There is no dispute between these parties that the child presently practises no relationship with the father. The father seeks to suggest that there is an issue with respect to paternity in relation to the child, although the basis upon which that is asserted is entirely unclear. If it is, in fact, a genuine issue, it can be addressed through an appropriate application and forensic testing. The evidence would not suggest it is necessary. But it is a matter for the parties to agitate that which they consider necessary.
I am also conscious of that which fell from the High Court in Aon Risk Services & ANU, and earlier, SPC & Sali. It is a matter for the Court to control its resources and their allocation to these parties. That is particularly relevant as regards the history of the proceedings to which I will turn shortly.
This matter has been listed for final hearing on extremely short notice, responsive both to the plea by the applicant that he is impoverished and disadvantaged by delay and the evidence of the respondent that there has been significant family violence towards her by the applicant.
Certainly, it is common ground that there is a two-year final ADVO in force which precludes any contact or communication between the parties. The order is in such prescriptive terms that I have raised with counsel for the respondent, prior to cross-examination of the respondent proceeding, as to whether the order which provides “You must not approach the wife or contact her in any way unless the contact is through a lawyer” might interfere in some fashion with cross-examination.
I am conscious that the provisions of the Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 do not yet apply. However, the ethos which underpins the passage of that legislation, is significant. It is intended to ensure that those who have experienced family violence are not further traumatised or exposed to what could fall within the broad umbrella of family violence through direct cross-examination by their alleged tormentor.
Counsel for the respondent did not suggest that direct cross-examination was precluded by the order recited above, nor was any objection to cross-examination raised. Notwithstanding, cross-examination fundamentally occurred through the bench in any event and/or through the interpreter engaged to assist the husband in these proceedings.
If the parenting plea were permitted to remain joined, if one might use that description loosely for one moment, it would have a significant impact on these proceedings. It would inevitably have led to an adjournment of the proceedings to enable the parentage testing controversy, which the husband purports to raise notwithstanding that he is the applicant for positive parenting relief, to be addressed through forensic testing. The delay that would then follow, if paternity testing established that the applicant was a person entitled to prosecute an application, would be significant.
This is a case in which a family report would likely be required. The parties are each sufficiently financially stretched to obviate against their funding that report and any report would, accordingly, need to be ordered by the Court and undertaken by the beleaguered Child Dispute Services of this Court. That would mean a significant delay in the report’s preparation, and a final hearing of the matter would not likely have occurred until late 2020.
Even if the parties had attended to that required of them by way of preparation as promptly as possible, that in turn would have led to today being substantially devoted to and consumed by the conduct of an interim spouse maintenance application rather than the final application that was listed for hearing. As their Honours comprising the High Court in each of the above authorities has opined, the Court has a responsibility not only to individual litigants but to the community at large to manage its resources appropriately.
That is not to suggest that case management principles can or ever should take precedence over the best interests of a child. However, the husband’s application might be described as somewhat half-hearted at the very least, referring to the child, whose name and date of birth were not known at the time of filing, as the presumed child of the father and, on its face, seeking nothing more than, potentially and inferentially from the relief as sought, the child’s inclusion on the airport watch list and possibly a plea for time or communication between the child and the father, the father simply stating as a final order sought, “Applicant need spend time with his presumable son.”
On the basis of the respondent’s plea for relief, there is no prejudice at all. She seeks that the status quo, as it might be so described, be maintained, that there be no time or communication. They are matters that the parties are, as indicated, at liberty to address once they comply with that required of them by the Act and, one would hope, with a little more thought as to the relief that they propose to seek.
History of Proceedings
This matter has a very brief history before this Court.
The matter was commenced by an Application Initiating Proceedings filed on 13 August 2018. That is some five months ago. The application was the subject of an application for consent to abridgement of time dealt with by a Registrar in Chambers. The application for abridgement was appropriately refused. Whilst it is not to suggest that the husband does not assert urgency in his application, this application is no more urgent than any other case and the present delay between the date of filing and the first return date of the proceedings, less than five weeks, certainly did not warrant an application for, let alone the granting of, short service.
When the matter came before the Court on 20 September 2018 both parties had filed their respective Application and Response. The matter was advanced to trial. The date fixed for hearing was some three months from the first return date. Both parties were to file and serve material by the close of business 21 December 2018 and to file and serve case outlines.
It is germane to observe that a referral was made to a Community Legal Centre, pursuant to Rule 12.02 of the Federal Circuit Court Rules, for the provision of assistance and service to the applicant. It would appear, from the applicant’s evidence, that some assistance was, in fact, provided, although the Centre was unable to appear in the matter or to provide substantial assistance. That is no criticism of the Centre. They have provided assistance within the parameters of their limited resources.
The history of the proceedings also speaks to the issues, addressed above, as to why the matter can, should and has proceeded on the basis of that which was fixed for hearing and why the portions of the application which seek to join parenting, albeit impermissibly and inappropriately, are struck out.
Material Considered
In dealing with the proceedings today, I have read and considered each of the following documents:
a)The Initiating Application filed by the applicant on 13 August 2018;
b)The Amended Application filed 14 December 2018;
c)The financial statement of the applicant filed 13 August 2018;
d)The trial affidavit of the applicant filed 14 December 2018 ;
e)Together with a case outline document prepared by the applicant and filed 11 January 2018.
It is to be observed that a number of affidavits have been filed by the applicant in these proceedings, not less than five. At the commencement of the trial, it was made clear to the applicant that he was required to elect the affidavit upon which he sought to rely. Litigants are entitled to rely upon one affidavit at hearing and that is the order which was made. Affidavits that are filed earlier in the proceedings require the leave of the Court to be relied upon.[1] No such leave was sought. Accordingly, the earlier filed material was excluded.
[1] See, for example Rule 15.06 Family Law Rules
In the case of the respondent, I have read and considered:
a)The Response filed 19 September 2018;
b)The Amended Response filed 28 December 2018. The Amended Response does not seek to vary, in any substantial fashion, the relief that was initially sought, it simply seeks to respond to the purportedly joint parenting issue;
c)The trial affidavit sworn or affirmed 28 December 2018 and filed the same day;
d)The financial statement of the wife filed 8 January 2019;
e)Together with a case outline document provided by the respondent’s legal representatives.
The respondent’s trial affidavit is filed approximately one week after the date that was fixed. I am not concerned that this creates any difficulty with respect to due process being afforded to the applicant, nor was such criticism raised. Indeed, it is extraordinary that it is prepared and filed during what otherwise was the Court’s Christmas closedown. It is a credit to the wife and her legal representatives that such diligence was undertaken.
There are also a number of exhibits tendered in these proceedings that are relied upon. They comprise:
a)Exhibit R1, the settlement statement and other materials with respect to the purchase by the wife of a parcel of real estate;
b)Exhibit R2, a superannuation statement of the wife;
c)Exhibit R3, a bank statement or portion thereof with respect to a Net Saver account in the joint names of the parties and for a period 7 November 2016 to 6 May 2017;
d)Exhibit R4, certain tax records of the wife;
e)Exhibit R5, up-to-date printouts with respect to certain debts and liabilities of the wife;
f)Exhibit R6, an appraisal with respect to the value of the parcel of real estate owned in the wife’s name;
g)Exhibit R7, a balance sheet;
h)Exhibit R8, printouts with respect to day care fees incurred by the wife with respect to care of the young child putatively of these parties;
i)Exhibit R9, 2016 and 2017 financial year tax assessment notices of the wife.
Complaint was raised by the applicant that the wife had not provided documents that had been sought by him by way of subpoena or that such documents had not provided in a sufficiently timely fashion. Complaint was raised by the husband, when the documents were ultimately identified, that he had not, prior to today, seen those documents or been aware that they had been produced to the Court by the wife, he having been of the belief that they would be provided to him.
The subpoena to which the husband refers is addressed directly to the wife. There is ample authority[2], that it is inappropriate for a subpoena to be issued directly to a party unless and until it is demonstrated that the party has been requested to provide disclosure or discovery and has failed to do so in a prompt or efficient manner. There is no such evidence. The subpoena has simply been filed.
[2] Hatton v Commonwealth Attorney-General & Ors (2000) 26 Fam LR 570 approving National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372
To the extent the complaint is raised that the wife is late in the delivering up of documents, again, that complaint could not be made out. The last day for production of material required by the subpoena was 21 December 2018. It is not entirely clear when the subpoena was served although a handwritten affidavit of service is filed by the husband which, taking it on its face, suggests that the subpoena was served on 21 December, that is the last day for production. The documents were produced shortly after the Registry reopened, being produced on 10 January 2019. That could not be a criticism. If one discounted the days for which the Registry was closed, the wife has, in fact, produced her material within a matter of business days from service.
Further, and to the extent that criticism is raised that the wife had not notified the husband that the documents had been produced to the Court or were produced and he was unaware that the documents were produced by the Court, that criticism, again, could not bear scrutiny. A notice of request to inspect was filed by the husband on 11 January 2019 at which time it is made clear that the documents are then available for inspection. It is a matter for the applicant as to whether he chooses to take up the ability to inspect that material prior to today. A lunch adjournment was taken early to permit the husband time to inspect that material. Ultimately, nothing from it was tendered.
The applicant’s self-representation and application of rules of evidence
These are Part VIII financial proceedings. The rules of evidence, both codified within the Evidence Act 1995 and common law rules, apply. I accept wholeheartedly that the applicant’s self-representation creates major difficulties and barriers for him in the appropriate preparation of his case. However, the rules of evidence have developed over some centuries to ensure that the integrity of evidence before Courts, in the quest to get to the truth. Those rules apply to all.
The Court does not have a separate set of rules that apply to litigants who are self-represented and those who are not. There is some variance in procedure, at least, in light of Re F: Litigant in Person Guidelines and the requirement for the Court to aid and assist a self-represented party by explanation of the process that is an adversarial trial. It may also be possible and/or permissible to modify that process to make it as informal as possible, particularly within the Federal Circuit Court where such a mandate is contained within the Court’s enabling legislation.[3]
[3] Section 42 Federal Circuit Court of Australia Act 1999
However, the same rules to apply to all. The Court cannot make exceptions or grant latitude to a party purely due to the fact that they are self-represented. It would be to deny due process to the party that is represented, ironically so, bearing in mind that the adversarial trial has developed from and has been, for quite some time, dependent upon the competent representation of all, so that, as American commentator, Harry Browne, has opined:
A fair trial is one in which the rules of evidence are honored, the accused has competent counsel, and the judge enforces the proper courtroom procedures - a trial in which every assumption can be challenged
It is trite to observe that the material that is prepared and filed by the applicant in his own case suffers a number of difficulties or deficiencies as regards the rules of evidence. They are manifest problems in the presentation of the applicant’s case over and beyond the application of relevant law and principle to the facts as they may ultimately be found. The applicant’s material is heavily weighed with opinion, criticism of the respondent (warranted or otherwise), statements of belief, conjecture and submission.
To the extent that there are significant and important matters to be addressed by the evidence, the applicant’s material is significantly afflicted with difficulty. The applicant simply annexes documents as though they are self-evident proof of certain matters whilst they are nothing of the sort. The applicant annexes, for example, his pension concession cards as proof positive that he must have an incapacity for employment. They do not prove anything of the sort. They prove that he has been assessed as falling within the criteria to receive certain benefits from the Department of Human Services.
The bases upon which the applicant receives benefits are unclear. It was conceded during cross-examination that the applicant receives an unemployment benefit and, thus, manifestly the provision of a pension concession card could not demonstrate incapacity or disability. If such capacity or disability were accepted by the Department, one would think a different benefit than unemployment benefits, which carries with it an obligation to actively seek and participate in job searching, might have been awarded. Leaving those issues aside, there is then the difficulty, as regards the suggested ill-health and disability of the applicant, that the material annexed is simply inadmissible.
Portions of it comprise pro forma medical certificates completed to suggest an inability to attend to work. Those certificates do not assist in advancing the case. That is even before one considers the respondent’s criticism that some of those documents are completed for, by and provided to the applicant by relatives or in-laws.
Other documents headed, for example, “good character letter” are simply irrelevant and inadmissible being documents in the nature of correspondence addressed from a medical practitioner “…To the Presiding Magistrate”, clearly prepared for the purpose of proceedings before the Local Court of which there would appear to be numerous such proceedings. The latter is not a business record. It does not assist at all.
Leaving those issues aside for one moment, it is germane to observe that the difficulties that the applicant faces in the conduct of his case are many. He is not an unintelligent or uneducated man. He has tertiary qualifications, albeit undertaken in study outside of Australia and in his native land of Country A. His use of English, particularly written English, is at a relatively-high standard, although the assistance of an interpreter has been provided at the Court’s expense throughout to ensure that, as far as possible, the applicant is able to participate in the proceedings without, for one moment, suggesting that this places him in the same position as competent and experienced counsel. But the Court has done all that it can.
The Re F: Litigants in Person Guidelines have been explored with the applicant, albeit at the hearing rather than at some earlier time that might have benefited him in relation to preparation. But that is not what is required by that case.
A referral has been made for assistance, which has been taken up and acted upon by the agency to whom the referral was made.
The Court has endeavoured to assist the applicant procedurally as far as possible, but the Court cannot give legal advice. The Court cannot be seen to be partisan. The Court must remain disinterested and neutral. As Eleanor Roosevelt famously opined:
Justice cannot be for one side alone, but must be for both.
In seeking to address any perceived difficulties in the applicant’s conduct of his case, to go too far is simply to prejudice the respondent and inappropriately and impermissibly so.
Evidence and credit
Each of the parties was required for cross-examination. Suffice to observe, the cross-examination of the applicant conducted by experienced counsel was erudite and directed to issues of significance. The applicant’s cross-examination of the respondent, albeit largely conducted through the interpreter or the Bench, did not shake the respondent’s evidence at all. Overall, not only from an observation of the applicant and respondent in the giving of their evidence, but, more importantly, from the evidence itself, I accept the wife’s evidence wherever there is dispute between these parties.
The wife gave her evidence in a frank, candid fashion. She was unshaken, indeed, unchallenged with respect to the vast majority of her evidence. She impressed as truthful. She was able to provide documentary evidence, the significant list of tenders referred to above, to corroborate aspects of her evidence and, to the extent that those exhibits corroborate the wife’s evidence, they also totally repudiate the suggestions of the husband in contra-agitation.
The husband, during his cross-examination, even making allowance for his nervousness, his use of English as a second language and the assistance of the interpreter, gave answers which varied from time to time, were quick to agree with or reject a proposal only to then later reverse the answer. The husband’s answers were long, rambling, tangential and largely unresponsive.
The applicant did not produce corroborative evidence that he suggested was available, referring repeatedly to the fact that documents were available and could be produced if the Court so desired. Accordingly, Jones & Dunkel inferences would appear available although, ultimately, they need not be pursued with any vigour. The simple disputes between the parties with respect to significant areas of their evidence, which I will touch upon briefly, is sufficient to support an acceptance of the respondent’s evidence as the more probable and the more reliable wherever there is controversy.
I do not propose to canvass all of the evidence in significant detail. I propose to incorporate a chronology of events set out within the wife’s case outline document. It is relatively brief, erudite and supported, by and large, by the wife’s evidence. Accordingly, that chronology is incorporated and findings of fact are made in accordance therewith.
| Date | Event | Evidence |
| 1974 | Applicant Husband is born | W – [2] |
| 1980 | Respondent Wife is born | W – [1] |
| 2004 | Respondent Wife completes study and commences working as a health professional | W – [3] |
| 2008 | Parties are married | H1 – [4] |
| 2009 | Parties commence cohabitation | H1 – [4] |
| 2009 – 2010 | Applicant Husband ceases working in Country A after about 12 months of employment | W – [8] |
| 2010 | The parties relocate to Australia | W – [8] |
| 2010 | Respondent Wife commences work as a health professional in Australia | W – [23] |
| May 2012 | Respondent Wife completes Australian qualifications | W – [18] |
| June 2012 | Respondent Wife commences working as a health professional in Suburb B | W – [19] |
| 2012 – 2017 | Applicant Husband asserts that Respondent Wife forced him to stay at home and not work | H1 – [10] |
| 24 April 2017 | Applicant Husband withdraws the sum of $20,000.00 | W – [92], H3 – [3] |
| 28 June 2017 | Applicant Husband pushes Respondent Wife against door while she is pregnant. Police attend and Applicant husband is arrested | W – [51] |
| 28 June 2017 | Parties separate | H1 – [13] |
| 12 December 2017 | Applicant Husband makes report to ATO alleging Respondent Wife committed Tax Evasion | H2 – [1] |
| 13 December 2017 | Country A divorce granted | H1 – [14] |
| 2017 after separation | Child, [X] is born | |
| 20 February 2018 | Final Order Apprehended Domestic Violence Order issued for the protection of the Respondent Wife | |
| 25 May 2018 | Respondent Wife purchases Property C property | W – [64] |
| 12 July 2018 | Applicant Husband initiates private Application for Apprehended Domestic Violence Order against the Respondent Wife and her mother | |
| 12 September 2018 | Applicant Husband instructs solicitors at MIC Lawyers to act on his behalf and alleges that the Respondent Wife has committed forgery | H4 – [Annexure D] |
| 21 December 2018 | Applicant Husband contacts Health Professional Councils Authority alleging that the wife has committed forgery | H4 – [Annexure A] |
| December 2018 | Applicant Husband contacts wife of Respondent Wife’s former employer and alleges that Respondent Wife has committed forgery | H4 – [Annexure B] |
I will touch upon specific aspects of the evidence that are illustrative of the above issues, particularly with respect to credit. There are, in total, four such aspects that I will deal with.
The introduction of funds by the parties and the parties’ families
The husband’s evidence, in this regard, is somewhat unsatisfactory. The husband asserts in his unparagraph-numbered affidavit, on the second page thereof, final paragraph:
During our first three years of arrival in Australia, my father supported me financially and sent me an amount of $70,000 in several payments, given that I was a student at University in Sydney and was unable to work due to my visa restrictions.
There are a myriad problems with that assertion. Firstly, the husband conceded, during cross-examination, that his visa permitted him to work 20 hours per week. So did the wife’s. The wife did work 20 hours per week. The husband did not. There is no evidence that the husband has ever made any attempt to obtain employment. The husband’s evidence with respect to suggested medical impediments to participation in employment is very much pinned to the separation of these parties. There is no suggestion of any such impediment earlier.
Secondly, and perhaps more fundamentally, the husband’s evidence with respect to the suggested introduction of funds of $70,000 from his father or mother or family generally is, in itself, unsatisfactory. The husband annexes a number of documents to his material. They are translated from the original (being in a foreign language). The documents purport to suggest that the husband’s father paid most of the costs of living of the husband, and his family, from a property sale in Country A. That is all that is asserted. As the former Judicial Registrar Knibbs was want to opine:
It is long on allegation and short on proof.
Indeed, the assertion is entirely absent proof. Not a single document is produced that would corroborate any of those allegations. Those allegations are to be set against the husband’s somewhat grandiose assertion on the following page of his affidavit:
I had a luxury life in Country A, given that I grew up in a rich family. Then my luxury lifestyle continued in Australia, given that I had been living in luxury apartments after during the past eight years of immigration in Australia.
It is unclear what is meant by luxury. The husband sought to give some context to the above evidence during submissions, suggesting that what is luxurious in Country A is very different to what is luxurious in Australia. I do not know what is meant to be taken from that assertion.
The husband also annexes statements or portions thereof with respect to an account in the joint names of the parties commencing May 2010 concluding November 2010. Therein there are three entries circled by the husband for $17,000, $40,000 and $13,000 respectively. The first, $17,000, is shown as a cash deposit.
The wife asserts that this is the deposit of funds that she had brought with her from Country A upon immigration to Australia only shortly prior to the opening of the account. The husband conceded that this might have been possible although he did not go so far as to adopt the proposition. Indeed, the husband, in a handwritten note at the conclusion of the bank statement, simply writes:
$70,000 transferred from my father from house he sold at Country A.
The two remaining transfers are clearly from a bank account held in Australia. Indeed, one would think a Commonwealth bank account described as NetBank transfer. The three amounts when added up total $70,000 whether conveniently or otherwise.
I do not accept that the three deposits referred to are, or entirely comprise, funds that have come from the husband’s family irrespective of the source of those funds from sale of real estate or otherwise.
The wife does concede that the husband introduced funds from his family. She is not disingenuous to the extent of denying the allegation at all and putting the husband to proof of all and any aspect of the allegation. The wife concedes, for example, page 20:
To the best of my recollection, the husband’s parents paid approximately $20 to $30,000 towards the husband’s studies.
The husband during cross-examination conceded that he had commenced two courses of study:
a)A semester of a course that would have assisted in converting or causing recognition of his overseas qualifications (permitting him to work in that occupation in Australia);
b)The second, a course in ….
The husband indicated the costs of those courses at approximately $20,000 in total. Accordingly, that portion of the wife’s allegation is corroborated by the husband’s own evidence.
The wife gives evidence in the following paragraphs, that prior to coming to Australia that she had accumulated savings and had obtained a personal loan by which she obtained further moneys which she brought to Australia which assisted in living expenses in the early stages of the immigration of this family. The wife indicates that her savings were approximately $30,000 and the personal loan was a similar amount. There is no reason to doubt the wife’s assertion.
The husband when cross-examined with respect to those issues was difficult to follow in relation to his evidence. He conceded that the wife worked while in Country A, that she earnt more than him, that she had saved money, but he denied that the wife had ever intermingled any of her money in the joint affairs of the parties asserting that she had retained it all to herself in a place or style that he was unaware. That evidence simply does not stand scrutiny in the context of this case and particularly with respect to latter portions of the evidence to which I will turn shortly.
I accept the wife’s evidence that she did introduce her savings. I accept the wife’s evidence that she also introduced funds that she had borrowed by way of a personal loan. With respect to that aspect of the evidence, the husband conceded that the wife had obtained such a loan and that funds had been brought by her to Australia as a consequence thereof, although when first put to him, he had denied the proposition. The husband then added, however, that all and any payments in relation to the loan were made by his family or from funds provided by his family. Again, there is simply no evidence to support that assertion, nor is it raised in the husband’s affidavit material.
Indeed, in relation to the introduction of funds from the husband’s family generally, a voir dire, if it might be so described, occurred or at least the wife was asked to leave the courtroom so that matters could be discussed during her cross-examination to clarify the husband’s evidence. The husband was in the process of putting propositions to the wife that between 2013 and 2016, that he had travelled on an unspecified number of occasions to Country A and on each occasion upon returning had brought back funds from Country A, presumably in cash. There is no suggested impropriety in relation to the introduction of the funds. The difficulty arose as the husband simply gave no evidence whatsoever in his material that he had travelled back to Country A in those periods or that any funds had been introduced as a consequence, whether through him returning with money from Country A or otherwise.
The wife’s evidence, in contradistinction, is clear, consistent and supported, by and large, through material that corroborates her evidence.
The wife also gives evidence that her family introduced a sum of approximately $10,000 by way of gift. As the wife was not challenged on that evidence, I accept it. On the basis of the husband’s own evidence, whether it is grandiose or otherwise, subject to interpretation as to what might be meant as a “luxury life” in Country A or otherwise, the husband clearly points to his family as being a significant financial resource to him. The husband suggests that his family have provided him with funds, even though the quantum that he alleges is not accepted at various times including, importantly, post-separation (both whilst he has lived with them in Country A, having travelled back there and returned to Australia in June 2018, or since returning to Australia in June 2018).
Both of these parties were employed in Country A and, I accept the wife, from her employment, earnt a greater income than the husband. The wife’s accumulated savings, that were introduced to the marriage, would obviate against any adjustment in favour of the contribution suggested to have been made by the husband or his family on his behalf through the introduction of initial sums. Lest I am wrong in that regard, I am conscious that the husband’s own evidence pins approximately $20,000 of the introduced funds to education. The highest I could assess the introduction of funds is that conceded by the wife, $20,000 to $30,000, as meeting the husband’s education expenses.
There is also a reality as conceded by the husband during cross-examination that the wife commenced employment within two months of arriving in Australia. That is the second element of the evidence that warrants some consideration.
Employment of the Parties
As already indicated, both parties were employed on a full time basis whilst living in Country A, the wife earning more than the husband by some unspecified quantum. Since coming to Australia, the husband has not engaged in paid employment at all. The wife has.
Approximately two months after arriving in Australia, the wife obtained employment as a health professional working part time within the terms of her visa. That income was introduced to the relationship and assisted in meeting expenses. The wife spent two years completing tertiary qualifications which allowed recognition of her overseas qualifications. Upon that course being completed, the wife was then able to obtain work, initially full time, as a health professional.
Following the birth of the child of this relationship, or at least so it seems, the wife reduced her work hours explicably and understandably so, bearing in mind the child was born after the separation of the parties and subject to some assistance the wife has had from her mother. The wife’s mother was in the country for a sufficient length of time for the husband to commence private apprehended domestic violence proceedings against her. The wife has been the sole provider of care for the child. She, accordingly, uses day care and preschool and has tendered documents corroborating both the reality that they are used and what it costs her.
I am satisfied that all of the income of the wife was introduced to the relationship. There is nothing to support the husband’s assertion that the wife kept her finances separately. The wife did not operate an account in her sole name until the early part of 2016. The husband suggests it was September. The wife, to her credit, pins it as approximately February 2016. The wife’s income had, at all times prior to that account being opened, been deposited to the joint account of these parties. It contributed substantially to the accumulation of savings of these parties, over $64,000 by late 2016.
During that period, the husband did not work at all. The husband’s evidence is that he was forced by the wife to not engage in employment and forced to be at home on a full-time basis, as he describes, as a homemaker and parent. It is important to remember that the household, at all times during the relationship between these parties, comprised the parties alone. The child, in the wife’s care, was born well after the separation of these parties, irrespective of any issue that either may care to raise – and it would seem the husband alone – with respect to paternity.
I accept the husband’s evidence that he undertook duties about the home, cooking at times – although the wife suggests she undertook that duty at least equally – and cleaning and other household chores. That is the extent of the husband’s contribution. That is not to impermissibly, as the Full Court cautioned in Kennan, quoting earlier authorities on the same theme, minimise or devalue such a contribution. However, in light of the clear evidence that there was never any incapacity precluding the husband from participating in paid employment, it is a limitation on his contribution.
The allegation by the husband that the wife “forced” him to stay at home and to not engage in paid employment is unsupported by any other aspect of the evidence. It is certainly denied by the wife. It is a curious allegation in light of the fact that the wife has, through police, obtained a two-year apprehended domestic violence order with significantly prescriptive terms as a consequence of such circumstances as are alleged in applying for and obtaining that order. A number of criminal charges were also proffered against the husband in relation to stalking, common assault and the like. How, in those circumstances, the wife forced the husband is unclear.
The above charges have not yet been resolved as the husband had, during the currency of both the domestic violence proceedings and those charge matters, left the country, having returned to Country A for some months to live there with his parents and to be supported by them. That was, apparently, in breach of his bail conditions then extant.
I have no difficulty in accepting that the wife’s contribution by way of introduction of wages and earnings is 100 per cent once these parties had immigrated to Australia. I have no difficulty in accepting that position as it is one of the few areas of agreement of the parties.
Division of Savings
As indicated, the parties had, by the latter part of 2016, accumulated savings in a joint bank account in excess of $64,000. A portion of the statement for that bank account comprises exhibit R3.
On 12 December 2016, the wife transferred from that account a sum of $64,000. Those funds were transferred to the wife’s private and single account which she had opened earlier that year. That withdrawal left a sum of $43.18 in the joint account.
The husband, in what could well be described a spectacularly ineffective aspect of cross-examination, put to the wife a question which he clearly did not know the answer to and which proved the maxim that one should not ask a question without knowing the answer. He asked through the bench why the wife had done that. The wife responded clearly and cogently that she had done so as she had a tax bill of $30,000 or more due to be paid and that the husband had intimated to her that he was intending to or would, if he so desired, withdraw funds from the joint account with the potential that she would not be able to pay her tax bill. Accordingly, it is the wife’s evidence that she transferred funds to quarantine them, as it were, and ensure that the tax bill could be paid.
The wife then continued, that in discussion with the husband he assured her that he would never undertake a transfer from the joint account without her knowledge and consent and that he had never done so previously. Consequently, on the very same day, she transferred the money back, all $64,000 of it. Three days later, notwithstanding the assurance that the wife gave evidence she had received, the husband transferred $62,000 from the joint account to his own account.
Following discourse between the parties, certain transactions occurred. They are not all entirely clear. It would seem, however, that the wife received at least $30,000 back from that which had been transferred by the husband. The husband reattained the balance. It would seem the funds were divided something around equally, each retaining money – and, certainly, on the husband’s own evidence, retaining at least $20,000.
The husband asserts that the $20,000 has not been retained by him, however. He submits that the wife took those funds from him. He describes it as “theft”. The husband describes that he was concerned that the wife was accessing his account via the internet, and accordingly, he withdrew all $20,000 from the account in his sole name. He asserts that the funds were withdrawn as cash and kept by him in a locked suitcase. He suggests that the wife ultimately accessed the suitcase and withdrew the $20,000.
There is simply no basis upon which I could accept that evidence. The wife denies it. The wife was not challenged with respect to it, and nothing was put directly to her with respect to it. The husband has produced no corroborating document. Accordingly, I accept her denial.
I accept that the parties effected a relatively equal division of those funds and the husband received not less than $20,000 and, in all probability, $30,000, the wife retaining the balance of $30,000 to $40,000.
Husband’s Health
As I have already indicated, there is no admissible or probative evidence before this Court as to any health issue that the husband suffers. I accept that the husband is receiving Centrelink benefits although not a disability support pension. The husband receives unemployment benefits.
There is no evidence that the husband, prior to the separation of these parties in 2017, suffered any disability - physical, psychological or otherwise which precluded his participation in paid employment. The only evidence that I have of any substance, in relation to the husband’s medical incapacity as it is described, is the husband’s assertion, albeit on oath.
The husband blames the diminution in his health and capacity upon the wife. He pins those issues significantly to separation and suggests that separation itself and the wife’s behaviours immediately prior to, at and following separation have caused him significant distress, suggesting that the wife’s behaviour towards him, as well as the behaviour of his former mother-in-law, have caused him significant emotional distress to the point now of depression and an incapacity to work. Again, there is simply no evidence, for the reasons described above, which supports that position, although ultimately, little turns upon it.
Present assets of the parties
I accept the wife’s evidence as to the present asset position of the parties. The husband does not submit that he has any assets in his possession. The husband submits that he has a significant American Express account for which he is liable. His evidence is that this has been incurred, indeed, the account obtained, entirely post-separation. I do not propose to include it. Not a single document is produced to corroborate the existence of the debt, the husband asserting, when he was asked with respect to statements, that they are not issued or, if issued, that he has not received them. I simply do not accept that evidence.
The statements are obtainable and can and should have been obtained should the husband wish to agitate for their inclusion. In light of his concession during cross-examination that it is an entirely post-separation debt, it would be difficult to understand how it would be included in any significant fashion.
The major asset that exists at this point in time is a parcel of real estate owned by the wife in the Property C area. The wife has not disclosed the specific address of the property, save and except through the tender of both a redacted and unredacted copy of an exhibit the latter of which does, in fact, show the address. The address need not be included in these reasons and should not be included in light of the wife’s allegations with respect to family violence. That is so even without proceeding to make findings of fact as to the violence. Such findings are not necessary in this case. That is not to suggest they are not available.
The parcel of real estate was purchased well after the separation of these parties. That timing, of itself, clearly does not exclude or quarantine the asset, nor is it submitted that it should. There is ample authority that it must be accounted for in these proceedings between the parties.[4] The property has a value at present, I accept, of $740,000 to $780,000. The property was purchased using some small portion of the funds that the wife had received from the joint savings account divided relatively equally between the parties, together with a small amount of borrowings from her family and drawing down funds by way of loan or otherwise through the business operated by the wife.
[4] See Stanford – the starting point is to identify and assess the present legal and equitable interests in property
I am not concerned that the business has any value of itself other than as an income-making vehicle for the wife. That arises as the wife’s evidence is clear that she does not own or operate a practice in her own right. She is a contractor and, thus, the proprietary limited company through which she operates her work is, in essence, simply a means of minimising tax that she pays, albeit legally and appropriately.
The property is encumbered by a registered mortgage of $695,341.29 leaving equity in the property of something in the region of, at best, slightly less than $85,000, at worst, slightly less than $45,000.
The wife has no significant savings. She has modest funds in her business account. She has a small and modest motor vehicle, or at least had such a vehicle upon separation, whether it continues to exist or not.
There are items of furniture and contents but the specifics of those items, let alone their value, are not known. The husband asserts there are myriad items of great value. He does not identify anything beyond suggesting that there is a rug. There is no value alleged and, on that basis, I am not satisfied anything can or should be taken further as to the inclusion or identification of those amounts in any balance sheet, if it might be so described.
The wife, in addition to the mortgage encumbering the property, also has assessed or to be assessed unpaid income tax with respect to her income and that of the corporate vehicle through which she earns that income of approximately $29,000. Accordingly, the net value of the assets available, treating the Property C property as the most significant asset, is more likely in the range of $22,000 to $62,000 in total.
The wife has modest and unsplittable superannuation entitlements. The husband would not appear to have any, and explicably so as he has never held paid employment for which he has received wages or salary and thus a superannuation guarantee levy obligation would not have arisen since he came to Australia.
The asset position of the parties being relatively settled, I am satisfied I can now proceed to turn to and address the relevant legislative provisions that I am required to consider under Part VIII.
In doing so, I commence with that which fell from the High Court in Stanford in relation to property adjustment. I propose to deal with the issues of property adjustment first and prior to the plea for spousal maintenance, as the Full Court described is the appropriate course in Bevan.
In Stanford, their Honours had the following to say at paragraphs 35 to 37 and 40 respectively.
It will be recalled that s 79(2) provides that “[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. And while the power given by s 79 is not “to be exercised in accordance with fixed rules”, nevertheless, three fundamental propositions must not be obscured.
First, it is necessary to begin consideration of 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. So much follows from the text of s 79(1)(a) itself, which refers to “altering the interests of the parties to the marriage in the property”. The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order…
Third, whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be excised “in accordance with legal principles, including the principles which the Act itself lays down”. To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
From the outset, I make clear that I do not take their Honours to be stating in Stanford that there is some precondition of establishing justice and equity for the making of any order before considering section 79(4). Indeed, the very terms of paragraph 35 of Stanford makes clear that section 79(4) must be considered in arriving at that determination. What their Honours were saying is that justice and equity infuses each step of the process rather than being a separate – as it was often described – fourth step at the conclusion. This much is clear from what the High Court said at paragraph 36:
The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. And while the power given by s 79 is not “to be exercised in accordance with fixed rules”, nevertheless, three fundamental propositions must not be obscured. First, it is necessary to begin consideration of 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. So much follows from the text of s 79(1)(a) itself, which refers to “altering the interests of the parties to the marriage in the property” (emphasis added). The question posed by s 79(2) is thus whether, having regard to those existing interests, the Court is satisfied that it is just and equitable to make a property settlement order.
Their Honours then go on to describe the second and thirds steps, being an assessment of contribution under section 79(4), incorporating, as it does, myriad factors including section 75(2), provision of child support and the like, as well as then considering, more specifically, each of the factors in section 75(2).
Importantly, at paragraph 40, their Honours have the following to say in relation to the third step:
…whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”[28]. To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
That speaks, perhaps, to the position submitted by the applicant at the conclusion of the case that he “has entitlements”. Neither party has entitlement beyond their legal and equitable interest in property, and in the case of real estate, as recorded by the Land Titles Office and consistent with their indefeasible title unless and until the Court is satisfied that it is just and equitable to interfere and adjust those interests.
In turning to the present legal and equitable interest and property of these parties, I adopt what is set out above, and particularly incorporate the balance sheet comprising exhibit R7.
Ownership
Description
Wife’s Value
Husband’s Value
Assets
1
W
Property C Property
$740,000 - $780,000
-
2
W
Wife’s CBA Net Saver Account
$16.11
-
3
W
Business Transaction account
$3,657.74
-
4
W
CBA Smart Access account
$274.98
-
5
W
Mortgage Offset Account
$1,300.74
-
Total
$745,249.57 - $785,249.57
$ 0
Liabilities
6
W
Mortgage
$695,341.29
-
7
W
ANZ Credit Card
$3,221.74
-
Total
$698,563.03
$ 0
Total Net Assets
$46,686.54 – 86,686.54
$ 0
Superannuation
8
W
Superannuation Trust
$4,469.97
-
Total
$4,469.97
$ 0
Total Net Assets with Superannuation
$51,156.51 - $91,156.51
$ 0
By reference thereto and, as I have already described, the net asset position of these parties is in the vicinity of $22,000 to $62,000 or thereabouts. This is especially so when the wife’s tax debt is taken into account (and I am satisfied that it should be taken into account for reasons that I will address shortly). I do not suggest it is a precise mathematical calculation.
The wife’s tax liabilities relate to a period when the parties were still living together in the period post-separation. The wife’s income post-separation has continued to contribute to the asset which the husband seeks to assail by his application for adjustment of interests in property and, importantly, has continued to contribute to support and provide for the child who at this point in time is, to adopt the language of the husband’s amended application, “presumed a child of the relationship”.
Accordingly, the income that the wife has earned to which the assessment of income tax is related, has very much been directed towards acquiring, conserving, maintaining and improving not only the substantial asset that is the subject of these proceedings but to supporting the child who is at this time – putatively, at least – the child of the parties.
I am satisfied that the submission put on behalf of the wife as to an assessment of contribution is apt and appropriate. The wife’s contribution could not be assessed, with respect to the assets as they presently exist, as less than 80 per cent. I am satisfied that this would be the minimum assessment of the wife’s contribution.
The contributions that can be made, by reference to section 79(4), are broad and varied. They include contributions, directly or indirectly, to the marriage and the conservation or improvement or acquisition of property. In relation to the most significant asset, the wife’s singular interest in the Property C property, the wife is the only person who has made a contribution thereto.
It might well be argued that the joint funds of the parties, having been divided and the wife having prudently invested her funds into the purchase of that asset also include joint contributions by the parties to those funds. However, again, it is to be remembered that I accept and find that whilst the husband’s family did introduce funds to the relationship, they were confined to the very early portion of the relationship and substantially consumed in meeting the husband’s education expenses.
The husband, on a student visa at that time, was not entitled to fee deferral or HECS assistance. He was a full-fee paying student and his evidence is that those fees approximated $20,000. The wife’s concession that the funds in total were $20,000 to $30,000 dollars and predominantly applied to that purpose is entirely consistent with the husband’s evidence and my finding.
Secondly, the husband has never engaged in paid employment since arriving in Australia. There has been no impediment to him doing so, none created by his visa, none created by his health, certainly, I am satisfied, none created, imposed or even suggested by the wife.
It is difficult to accept the husband’s evidence that the wife forced him to do anything. It is entirely contraindicated by the balance of the evidence. Indeed, it is rendered implausible by the balance of the evidence. There is clear evidence that the husband was able to do as he chose whenever he chose, travelling when he wished, (although he suggests that the wife undertook choice of destinations and travel, curiously always selecting to go and stay with the husband’s family, including when the husband went himself), at least as best as can be inferred from that which the husband puts from the bar table rather than in his sworn evidence.
It is the wife who has an apprehended domestic violence order for her protection. The order does not prove the occurrence of violence, but the husband was afforded a more than abundant opportunity to participate in that process and chose not to. The wife’s evidence, in relation to the violence that she alleges that she experienced, is plausible and entirely unchallenged. I accept that evidence.
The husband was able to engage in financial dealings at his will. There was no impediment to his withdrawing money from the joint account in December 2016, for example. Accordingly, if the husband is able to exercise his own free will at every other time and in every other context, it is difficult to understand how, on his suggestion that the wife told him he had to stay at home even though he did not wish to, and that he could not obtain work, even though he expresses that he desired to. I do not accept that the wife was able to exert such influence upon him. I simply reject that evidence by the husband.
The husband did contribute, however, whether he was forced by the wife to stay home, chose to, or it simply arose. He did undertake household chores and duties for the benefit of these parties, but no-one else. That is a contribution of some importance, but I am not satisfied that it is a contribution, even bearing in mind that which was discussed in Kennan, which could elevate the husband’s contribution as a homemaker and parent in that limited capacity, being otherwise supported in all other means and, importantly, financially by the wife, to an equality of contribution.
I am satisfied, particularly in light of the circumstances in which the property was purchased, post-separation and by the wife as her sole decision, using the portion of the funds that the parties had informally divided between them, (albeit the husband had effectively controlled that division as it was he who withdrew the funds and determined what would be returned), that the wife’s contribution should be assessed as submitted by her counsel. It is in those circumstances that the finding is made that the wife’s contribution is not less than 80 per cent.
There is then, of course, the question of the balance of contributions under section 79(4). Parties can contribute other than by a financial contribution to the acquisition, maintenance and improvement of property. The husband was not involved in the purchase of the Property C real estate. He does not even know the address, thus he could not submit any contribution other than through the application of funds from the joint account which were informally divided, relatively equally, and which I am satisfied comprised wholly, by that point, the wife’s income and earnings from the preceding period.
I have to have regard to the contribution of each of the parties to the welfare of the family. Each has contributed, although the wife has made the sole financial contribution throughout the relationship. The finding of contribution in that regard will not impact anyone’s earning capacity in the future.
The balance of factors in section 79(4), I am satisfied, are more appropriately dealt with by reference to section 75(2).
In turning to section 75(2), there are a number of factors which might be argued, by either party, to support their respective position. The parties are of similar age and, as I have indicated, there is no admissible evidence that submits that there is any difficulty with the health of either party that will impact upon their capacity for appropriate, gainful employment in the future.
I accept that the separation has been difficult for the husband. Separation is a difficult thing for any adult to deal with. It may have been more difficult for the husband, for whatever reason, than it has been for many other people including the wife.
However, I simply cannot accept, because there is no evidence that would permit it to be so, that there is any nexus between separation and the husband’s suggested health difficulties at this time, and that is all that they are, suggested. The husband has not adduced admissible evidence that is persuasive.
The income, property and financial resources of each party and their ability to participate in gainful employment does not assist either party to any great extent. The wife certainly earns greater income than the husband at the present, but each has capacity for gainful employment, although I accept that the husband, without completing the tertiary study necessary to permit recognition of his qualification, would not likely participate in that particular employment. But that does not preclude him from all employment.
To the extent that the wife’s income is greater than the husband at the moment, even leaving aside earning capacity, the wife’s income is not substantial. The wife earns something that is about average weekly wages by the time one takes into account tax liabilities and the like. Accordingly, I am not satisfied it is a factor that could assist either.
The factors which loom large in this case relates to the child. That young child, only a little over one year of age, is in the wife’s full-time care. Not full-time in the sense that might be described in the context of a parenting case before the court, full-time in a real sense - 24/7, 365 days a year. The wife does not receive and has never received financial assistance for the child. Indeed, it would seem there is now to be some controversy agitated as to the child’s parentage. Based upon what, it is unclear.
That care of the child, presumed at this point as a child of the relationship, but in any event, it would be a relevant responsibility for a party to meet the needs of another person (addressed later in section 75(2)) is significant. Even if, ultimately, the child were found to not be a child of the parties or of the marriage this factor must weigh heavily in the wife’s favour. The fact that she receives no financial assistance from any person for the care of that child is a significant factor.
The responsibility of the parties to support others would, again, cover the field in relation to this child irrespective of issues of paternity, it being a commitment to support any person other than themselves.
Each of the parties has self-care expenses. The expenses as set out in the husband’s case do not assist him a great deal. Again, I am conscious that he has prepared his own case. But there is nothing that the court can do to accommodate for that, assuming, for example, that some greater latitude should be given or that the scale might be leaned on as regards the expenses he alleges. The husband submits that he has expenses as completed in part M of $150. Certainly, on their face and by reference to any test of reasonableness or necessity – see Mee & Ferguson – there is immediate issue.
It is difficult to accept that anyone would spend $40 a week on food, for example. It is such a frugal amount, it is difficult to understand how one would keep life and limb together, but it is the husband’s evidence on oath and no-one has sought to challenge him. The husband has not sought to amend that evidence. The husband has a rental expense of $220 per week. Curiously, the husband suggests he has an income tax liability of $350 a week, although, of course, he does not have an income to which such an amount could relate.
There are difficulties with the husband’s evidence including those. It might be explained by the fact that the husband suggests he receives salary and wages of $350, but again, there is nothing in the husband’s evidence that could possibly support that. Indeed, the husband annexes to his material a letter confirming that he was not required to lodge income tax returns for a series of years, presumably on the basis that he had no income or an income less than the statutory threshold requiring assessment.
The wife, for her part, has completed her statement of financial circumstances somewhat more carefully. The wife’s expenses exceed her income. I accept her evidence that it is so. The wife makes clear that the reason that she is able to meet her day to day living expenses is that she “robs Peter to pay Paul”, as it were, not attending to payment of her tax debt in as diligent a fashion as might be desirable, from the point of view of the Commissioner, and hence the tax debt accrued. That is all the more reason why the tax debt should be included, as it has been allowed to accrue as a consequence of the wife meeting the very expenses that have consumed her income.
Those factors again favour the wife.
Where the parties have separated, maintaining a standard of living that, in all the circumstances, is reasonable is relevant. I need not go behind the husband’s evidence when it is unchallenged. The husband is clear, as I have already referred to, perhaps intending to be grandiose, perhaps intending to make some point with which his evidence is generally infected, casting blame upon the wife for his circumstances, that he had lived a life of luxury in Country A, that his family is wealthy and that they can support him and have done so in the past. The difficulty for the husband is that this is his evidence.
The husband also gives evidence that his mother continues to support him. He disavows that that is so, suggesting that since his return to Australia in June 2018, that there has been no assistance whatsoever. But his own sworn affidavit material, sworn only some few weeks ago, suggests that support was, at that point, current. I accept that the husband’s family, on his own evidence, are a financial resource available to him and a means by which he might have some assistance and relief from the present difficulties he suggests that he experiences.
The standard of living which the wife enjoys is frugal. It is better than the husband’s, but it is frugal. She does not live a lavish lifestyle. She does not eat out every night. She does not go on expensive holidays. She pays significant childcare fees, $220 per week. Although the husband asserts that that is simply a fiction and that the wife’s mother is still in Australia and that is who cares for the child the question is begged of why invoices are produced by a childcare centre acknowledging receipt of payment from the wife. I accept that the wife does meet those expenses and, accordingly, her standard of living, whilst better than the husband’s, is a significant diminution from that which she had previously enjoyed prior to separation and certainly prior to the birth of this child.
The Court must consider the extent to which a party seeking maintenance could increase their earning capacity through a course of educational training. The husband does not advance that this is so. Indeed, the husband is at pains to point out that it would now be fruitless for him to complete that required of him by tertiary study to allow his qualification to be recognised in Australia, as that ship has sailed, as it were, and his qualifications are now outdated and the industries in which he had worked are no longer offering any real opportunity. Accordingly, the husband will need to simply seek alternate employment.
The effect of orders upon creditors is not relevant. Certainly, the husband submits he will not be able to meet his Amex debt without some contribution from the wife. That is no basis to make an order adjusting interests. The creditor who advanced credit to the husband was aware of his circumstances. The husband’s evidence is that he has not worked since coming to Australia and that he has no substantial assets and did not, at the point of separation, have such assets. Yet still, on his application the card was provided to him. The creditor will simply need to take their chances based upon exactly the same position as the husband advised them when they advanced credit to him.
The extent to which a party seeks maintenance is suggested to have contributed to the income earning capacity, property and financial resources of the other party is suggested to be relevant. This might be argued by the husband in some small way, as the wife has, since coming to Australia, obtained a tertiary qualification. The qualification was obtained after two years of study which enabled her qualifications to be recognised. However, it is neither a substantial contribution nor one which the husband argues with any force.
The duration of the relationship and the extent to which it has affected the earning capacity must be considered. The relationship has subsisted for 10 years or so. However, whilst there has been a diminution in the husband’s earning capacity, that diminution has no connection, I am satisfied, with the relationship. The husband has made a choice to not engage in paid employment. It is not a choice that was inflicted upon him or forced upon him by the wife. It is simply what he has chosen. He indicates in his evidence, and the wife gives consistent evidence, to some extent, corroborative, that the husband did not need to work, at least in the early stages, as he had the assistance of financial support from his family. It is not a factor that assists in this case.
The need to protect the role of a party who wishes to continue as a parent is relevant. There is no prescription within this consideration that the child who is to be parented must be a child of the relationship, although there is nothing on the evidence to doubt that this young lad is such a child.
The wife wishes to continue in her role as a parent. She has subjugated her participation in full-time paid employment to those caring duties and responsibilities, tempering her work hours and days at work to be available as often as possible and minimise the time the child is away from her and in day care. It has, thus, had an impact and will continue to have an impact upon the wife until at least 2023, when this lad will start school. That is the significant factor in favour of the wife.
If either party is cohabiting, a consideration of financial circumstances. This is not relevant. The husband shares accommodation, but he does not cohabit within the terms of section 4AA.
The terms of any order upon bankruptcy or the property of a bankrupt is not relevant. The terms of any order upon creditors, bankruptcy or other administration is, similarly, not relevant.
The level of child support that a party is provided with or that a party is liable to provide, is relevant. Without suggesting that there is any basis to doubt the paternity of this young child and irrespective of that argument, the wife does not receive child support either from the husband or anyone else, thus, she has that caring responsibility in a very real and fulsome sense.
Other facts or circumstances
I am satisfied, in this regard, that the relevant circumstance is the extremely modest value of the pool of property, if it might be so described, available for division between these parties. The present legal and equitable interests in property of these parties are largely made up, almost completely made, of equity in the Property C property acquired by the wife in the above circumstances. In light of the section 75(2) factors which favour the wife, that must tip the balance back to the point where the wife would, if a positive exercise of discretion were to occur, receive an adjustment of 10 to 15, if not perhaps 20 per cent of that pool. It is a pool of such small quantum that a smaller adjustment would be meaningless. Thus, the wife would retain her property in any event. On that basis, it could not be just and equitable that an order for property adjustment would be made. Thus, none will be made. Things will lay where they are.
There are no joint assets of these parties that require adjustment. Certainly, adjustments can occur with respect to property held by a party in their sole name, but I am conscious, again, that the parties affected, in the circumstances described above and in December 2016, a division of their then-joint savings. That was a division affected through the husband’s initial, unilateral action and subsequent return of some funds to the wife, whether equal or slightly more than equal.
The wife has dealt with her moneys differently to the husband and to her benefit. She has, in the same period of time, received a significant change in her life, the introduction of the child. That will continue to impact upon her ongoing contribution. It will continue to impact upon her ability to earn income, her expense base and thus her ongoing contributions as recognised by section 79(4).
In turning to the spouse-maintenance application, it must be observed from the outset, as the section makes clear, that there is no “right” to spouse maintenance. It is not an entitlement. It is, as it were, an exception.
Section 72 commences with the following:
A party to a marriage is liable to maintain the other parent 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 by reason of having the care of a child [not relevant in this case, as the applicant is the husband], by reason of age [not argued] or physical or mental incapacity for gainful employment.
Again, there is no admissible evidence that the husband has a physical or mental incapacity for gainful employment.
The third ground is “any other adequate reason”. That could expand to include a party who has been absent the workforce for a significant period of time and, thus, their employment skills diminished, their employability diminished or, simply, their capacity to return to the workforce diminished in light of a changing world since they were last in it. That ground would have some force and effect but for the peculiar circumstances of this case.
The husband has not had any impediment to participation in employment since his arrival in Australia on a student visa. Since that visa was granted, he has been permitted to work 20 hours per week. Since he has moved to a different class of visa, he has been permitted to work full time, should he so desire. He has not done so. There is no explanation other than the assertion that the wife has forced it to be so. I reject that evidence as described above.
There would be some difficulty in establishing even one of the grounds to pursue further in light of the three hurdles that must be crossed in any spouse-maintenance case.
Accepting for one moment that some latitude might be demonstrated towards the husband’s evidence, although there is no basis for that to be so for the reasons given above, and it was accepted that the husband was, presently, incapable of participation in gainful employment, there would then need to be a consideration of the remaining two factors, namely:
a)Whether the husband is unable to support himself adequately from his property, income or financial resources; and,
b)Whether the wife was in a position to contribute, (i.e. whether she had an excess of income over expenses). On either of those grounds, the application must fail.
The husband has the financial resource of his family. It is his evidence, that speaks in such grandiose terms as to their ability to provide assistance and their wealth. During the case and particularly during submissions, the husband sought to assert that his father is retired, has no business, has no income and thus demands and requires that the $70,000 then described as a loan, suggested to have been made early in the relationship and in or about 2010, must be returned. That is the husband’s evidence, although he backs away from aspects of it. Whether it is so or not, the case can be answered simply and with far less controversy, simply, by reference to the third ground.
The wife has no capacity to pay. I accept her evidence in accordance with her financial statement, corroborated by the material that is tendered in her case, that her expenses exceed her income. She is doing it tough, albeit that her circumstances are more salubrious than the husband. It does mean that she has capacity.
The wife’s expenses, by reference to Mee & Ferguson, are entirely appropriate. Part N of the wife’s financial statement sets out an expense base which is far from grandiose. She spends money on food and household supplies for herself and the child. She meets payments for utilities. She runs her motor vehicle. She pays for childminding, and whilst the husband doubts that it is so, the material corroborates clearly that it is so. She meets other expenses, all of which are entirely reasonable and/or related to the generation of income.
On that basis alone, although I am satisfied for the reasons described above, that on all bases the application would fail, the husband could not succeed with his application.
Accordingly, I make orders as follows.
I certify that the preceding one hundred and sixty-nine (169) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 1 March 2019
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Procedural Fairness
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Jurisdiction
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Remedies
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Appeal
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Costs
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