STOCKDALE & STOCKDALE

[2014] FCCA 2359

FEDERAL CIRCUIT COURT OF AUSTRALIA

STOCKDALE & STOCKDALE [2014] FCCA 2359

Catchwords:
FAMILY LAW – Property dispute – parties in de facto relationship subsequently married – significant dispute about duration of de facto relationship – inter-related dispute about contributions – court finding true position not that contended for by either party – considerably greater contribution by husband – wife’s future needs clearly greater – division of non-superannuation assets 73/27 in favour of husband.

Legislation:  

Family Law Act 1975, ss.75(2)(o), 4AA

Stanford v Stanford [2012] HCA 52

Applicant: MR STOCKDALE

Respondent: MS STOCKDALE

File Number: MLC 4599 of 2013

Judgment of: Judge Burchardt

Hearing dates: 18, 19 & 20 August 2014

Date of Last Submission: 20 August 2014

Delivered at: Melbourne

Delivered on: 24 October 2014

REPRESENTATION

Counsel for the Applicant: Mr Robinson

Solicitors for the Applicant: Mills Oakley Lawyers

Counsel for the Respondent: Mr Hall

Solicitors for the Respondent: Barbayannis Lawyers

IT IS NOTED that publication of this judgment under the pseudonym Stockdale & Stockdale is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 4599 of 2013

MR STOCKDALE

Applicant

And

MS STOCKDALE

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a property dispute between a couple who lived in a de facto relationship, married on (omitted) 2010, and separated in January 2013. 

2. A very significant amount of the time spent in court, and the parties’ materials as filed, was directed to establishing whether the parties first commenced their relationship as a de facto couple in early 2005 (wife’s version) or early 2009 (husband’s version). 

3. The reason for this concentration was the fact that the husband, on any view of the matter, amassed very considerable personal wealth in the years 2005 to 2009. 

4. The wife seeks distribution of the property pool 40 per cent to her and 60 per cent to the husband.  The husband says that the wife’s best case on any basis would be 20 per cent with 80 per cent to the husband. 

5. The parties have agreed that the superannuation gained by the parties during the period of the relationship should be split evenly but otherwise that the parties should retain their own. 

6. For the reasons that follow, I have decided that the de facto relationship in fact commenced in early 2007.  I think that the property pool should be divided 27 per cent in favour of the wife and 73 per cent in favour of the husband. 

Some agreed facts

1. The husband was born on (omitted) 1957 in (country omitted), came to Australia in 1960 and became a citizen in 1969.  On (omitted) 1983, the husband married Ms J and they separated under one roof in March 2003 before final separation in March 2004.  The husband has two children of that relationship, X, born (omitted) 1985, and Y, born (omitted) 1988.  The husband’s divorce became final on 13 February 2006. 

2. The wife was born on (omitted) 1962 in (country omitted).  She had a child, Z, born (omitted) 1983, who lives in (country omitted) and has played no relevant part in this proceeding.  The wife migrated to Australia in 1989 and became a citizen in 2000.  On (omitted) 1995, the wife married Mr R and their child, W, was born on (omitted) 1996.  The wife separated from Mr R in March 2004 and they divorced on 1 July 2005. 

3. The husband and wife first met in 2004.  The wife, in fact, had been a friend of the husband’s mother and she came to (omitted), where the husband then lived, to visit his mother.  The precise dates are not relevant but it is common cause that sexual intimacy commenced between the husband and wife relatively shortly thereafter, whether in late 2004 or early 2005 in my view not being presently material.

4. It is common cause that the wife visited the husband in (omitted) from time to time, although there is vivid dispute as to how frequently and for how long.  It is also common cause that the husband, on occasions, visited the wife in Melbourne although, once again, there is vivid dispute as to the extent of these visits both as to periodicity and as to length of stay. 

5. Between January and July 2007, the husband made a number of visits to (country omitted) of a work-related nature and from July 2007 until October 2008, he lived in (country omitted). 

6. On any view of the matter, in mid-2007 there was a rather half-hearted and abortive attempt by the husband and wife to buy a property in Property E, the suburb in which the wife then lived. 

The de facto issue

1. Although there are a number of other aspects of the evidence that are not controversial it is appropriate now to canvass, at least in outline, the evidence the parties gave about the nature of their relationship.  It should be noted at the outset that in my opinion, the intensity of the dispute about this issue represents something of a forensic misconception on the part of the parties themselves. 

2. In the ultimate, the question as to whether the parties were or were not in a de facto relationship between 2004 and 2009 is really only a subset of the argument about the extent of contributions of the parties.  At times it seemed to me as though the husband’s position was that if the relationship commenced in 2009 items owned or property earned or acquired during the prior period was, in some fashion, excluded wholly from consideration. 

3. If that is so it is plainly a misconception.  The reality is that the property owned by the husband, springing as it did from moneys he had made earlier is still in his possession and forms part of the pool. 

4. I should make it clear that I have no intention of rewarding the excessive industry of the parties by minute examination of the materials filed and the evidence given in court.  The conclusions I have reached are drawn most particularly from the materials which were contemporaneously created and I propose to paraphrase, in what I do not hesitate to concede is a very general way, much of what was said and written. 

5. Before commencing examination of the evidence, however, it is appropriate to set out the matters that give rise to the relevant definition contained in the Family Law Act 1975 (“the Act”). Section 4AA defines a de facto relationship relevantly as:

   “4AA(1)    A person is in a de facto relationship with another person if:

   (c)     having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

   4AA(2)    Those circumstances may include any or all of the following:

   (a) the duration of the relationship;

   (b) the nature and extent of their common residence;

   (c) whether a sexual relationship exists;

   (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

   (e) the ownership, use and acquisition of their property;

   (f) the degree of mutual commitment to a shared life;

   (g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

   (h) the care and support of children;

   (i) the reputation and public aspects of the relationship.”

The evidence about the de facto issue

The husband

1. The husband’s evidence can be paraphrased in my view relatively succinctly.  It was his evidence that he first met the respondent at his home in (omitted) in mid-2004 at a time when his own mother was staying with him for several months.  They also went out for a date in about mid-July 2004.  According to the husband, he was only recently separated from his first wife and his emotional state was such that he was in no hurry whatsoever to embark upon any kind of new serious relationship. 

2. From around about September 2004 until the end of 2007, the applicant was heavily engaged with his (studies omitted), which he was in the process of undertaking, his work and the upbringing of his two children, X and Y, who were living with him following separation.  The husband’s affidavit material does not, if I have read it correctly, state precisely when first sexual intimacy took place but it is clear that it was in 2004. 

3. According to the husband, he and the wife were merely dating or courting (he used both phrases in his evidence) until he returned from (country omitted) and it was his position that the de facto relationship commenced in 2009. 

4. The husband’s position was that while the parties were in a sexual relationship, this took place relatively rarely.  He continued to live in (omitted) and the wife continued to live at Property E.  He said (see, for example, paragraph 19 of his first affidavit filed 11 June 2013) that he would attend the (school omitted) almost every second weekend in relation to his (studies omitted) and return to (omitted) each night and that “on occasions” the wife would visit him in (omitted). 

5. The husband’s case was that while he enjoyed the sexual relationship with the wife (and, one would infer, the associated general social contact) he was in no state of mind to commit himself to a new relationship and did not do so. 

6. It was also the husband’s position that he had dated other women during this time but I would interpolate and say that while that may have been the case, and evidence from his mother appeared to support it, he certainly never told the wife, and the scale of his activities appeared to rise little higher than taking a (omitted) from the (school omitted) to a dinner. 

The wife

1. The wife’s position by way of contrast can also be put in general terms fairly shortly.  It was her position that following the commencement of intimacy in 2004 the parties were, by no later than 2005, in a de facto relationship.  It was her position that the husband commenced staying over at her home in Property E from 9 August 2004 (see paragraph 9 wife’s affidavit filed 10 July 2013).  As she put it:

   “… I also commenced staying in (omitted) with the husband whenever I would visit and the first time I stayed in (omitted) with the husband was on 25 September 2004.  In around November 2004, the husband and his son from his first marriage, X, helped me move into a rental property after the settlement of the sale of the former matrimonial home from my first marriage.  Thereafter, we spent significant times staying at each other homes and became intricately involved with each other’s family.  The cohabitation commenced in early 2005.”

2. At paragraph 10 of the same affidavit, the wife relevantly deposed:

   “… From the commencement of cohabitation in early 2005, I supported the husband, not only in his studies, but to find a balance and to enable him to not be dependent on anti-depressants.  I gave the husband not only emotional support, but cared for him in every way possible whilst he was studying.  I provided him with meals, undertook his washing and ironing and this enabled him to focus upon his (studies omitted) studies.”

3. The wife also deposed to having helped the husband’s children from 2004 onwards and she repeated her assertion that in 2005 (paragraph 14 of the affidavit):

   “… I travelled constantly to (omitted) to care for the husband, provided him with meals and stayed with him almost every weekend, sometimes until Monday morning and then drive back to Melbourne.”

4. Put shortly, the wife essentially deposed that this pattern continued until the husband went to (country omitted). 

The supporting witnesses

1. Numerous witnesses were called to buttress the position for which the parties contended.  I found all the witnesses to be honest, although there is one aspect to the evidence of Y, I have some difficulty with. 

2. It should be noted that to a greater or lesser extent, all the supporting witnesses – if I may so describe them – relied essentially upon the versions of events reported to them by the primary party who called them.  They are all, in each and every instance, either a family member or a close friend of long‑standing. 

3. It is scarcely surprising that the husband’s mother and daughter supported his side of the story.  The paternal grandmother, Ms G, was clearly an honest witness but her evidence was necessarily somewhat partisan.  The same is true of Y.  The one aspect of her evidence which I found unconvincing was her assertion that she had little understanding of the sexual nature of the relationship between the husband and wife when the wife stayed in (omitted).  As an adolescent girl of some 15 or 16 years, the idea that she would have had no curiosity of this matter and was not of an age to be aware of it, strikes me as being unconvincing. 

4. The two supporting witnesses whom I found particularly impressive were Mr M, a friend of the husband’s for very many years, and Ms B, a long-standing friend of the wife’s.  Mr M’s evidence on affidavit was to the effect that in early and mid to late 2004, the husband had had a number of conversations with him in which he said words to the effect that he had had enough of marriage or that he had no interest in marriage or having a relationship. 

5. Mr M also deposed that in mid to late 2004, the husband told him he had met the wife and said it was not serious – or words to the effect that he liked her but “we’re just dating”. 

6. Mr M deposed that between 2004 and 2007 the husband would often mention that he was very sad and bitter as a result of his separation from his first wife and regularly expressed a lack of interest in remarrying or having a relationship with any woman but would rather enjoy dating. 

7. Mr M’s evidence was that he first met the wife in early to mid-2005 and that while the wife was “all over” the husband, the husband had told Mr M subsequently that it was a sexual relationship but they were just dating.  Mr M’s evidence as to social functions and the like was consistent with this sort of observation of the relationship. 

8. Ms B’s evidence was at the other end of the spectrum, so to speak.  It was her observation that the husband and wife were in a committed relationship from 2005 onwards.  Her evidence was to the effect that she visited the wife’s Property E property frequently and that the applicant and his children often were there.  She deposed at paragraph 8 of her affidavit:

   “Ms Stockdale and I often had discussions about her family situation.  I am aware that from Ms Stockdale’s perspective, the Property E property was rented as a home base for Mr Stockdale, Y and X.  I observed that whilst Mr Stockdale was overseas he would have his car parked at Ms Stockdale’s home, sometimes for weeks at a time.”

9. Although I have not traversed the evidence of the other supporting witnesses, in a sense they all fell somewhere within this spectrum.

10. As I have indicated, Mr M was a transparently honest witness who impressed me as having a very clear recall of the events he described.  I give him particular credit for his answer to a question under cross‑examination in which he confirmed with evident sincerity that far from being antithetical, he has a good opinion of the wife. 

11. By the same token, Ms B was a careful and considered witness under cross-examination.  Her evidence was that she had visited the wife regularly, every couple of weeks at least, until the wife moved to Property B.  She said she always saw Mr Stockdale there when she visited, although she was not there every week or even two weeks.  She conceded that this was approximately, perhaps, once per month.  She said she saw a stable home environment and met the husband’s children at the wife’s home three to four times and saw laundry being done on these occasions. 

12. In my opinion it does no disservice to the volume of material filed or to any of the witnesses to say that the husband sought through all his witnesses to minimise the contribution made during the years 2004 to 2009 by the wife and his supporting witnesses were to the same effect.  The wife’s evidence was that she was with the husband, effectively, almost every weekend, that they spent lots of time together either in (omitted) or in Property E, that she had performed extensive domestic duties in both those places, both for the husband and his children, and that the family’s lives had become co-mingled during these years.  Her supporting witnesses were to the like effect. 

Some Matters of Objective Proof about the De Facto Issue

1. It is clear that the parties gave some thought to buying a property together in 2007.  Exhibit A2 is the end of an email chain between the parties in October 2007.  It confirms that the parties were looking at a property and the husband’s email relevantly says:

   “Looks good but you probably cant do anything with it if its national trust worht a look though.  like the location dont like the pool, too much work, big tree would have to go.” [sic]

2. The wife’s reply is:

   “national trust is only for one room, the rest is not classified trust, like the pool, the ambience, that all rooms are private and have leadlight and windows, set away lots from street, needs some work, but that is ok, has enough room for 2 students and private space for us and W, there is storage under the roof, which you will love when you see it.  To be honest, did not even notice the tree, had a good feel about it... thanks for considering”

3. The husband put it in his evidence that his excursus was, as it were, merely an exploratory endeavour by him to see how much money and possessions the wife had.  That assertion is not, in my view, maintainable in the face of the objective evidence.  The picture that emerges for me is that of the wife actively seeking property with, perhaps, a slightly grudging acquiescence on the part of the husband. 

4. As earlier indicated, the husband went to (country omitted) in mid-2007.  On 28 July he sent an email, being annexure “D”, to the wife’s affidavit filed 10 July 2013 in the following terms:

   “Sitting on beach watching sun go down.  Missing u today and thinking of u and me and u no what!!! 

   X is annoyed with me as we are staying in quite area.  Not action area like X suggested.  But I misinterpreted action.  I thought that would be the sleazy end of town.  But no just area with restaurants and bars.  Oops! 

   Anyway had good day today.  Went for swim this morning, after breaky had w 1/2 hour massage for $30 then went 4 walk with X around village.  In afternoon X did some training on the beach and everyone waw staring.  So I had to get part of the action as well.  After he finished I made him do 2 more sprints.  Still couldn’t keep up with, plus to early to run for me as now back is sore again.  Testosterone got in way of common sense!  But its so hard for me not to participate. Eveb if its obvious that the old farts trying to catch keep up with the young stud and just aint got it any more. Any away my darling I love you and miss you.

   I am really lookinf forward to seeing you and I want us to come up with a plan how we c each other every 3 weeks at least.” [sic]

5. This evidence shows that not only was the husband in (country omitted) with the wife’s son, suggesting a rather greater degree of interaction between the families than the husband was prepared to concede, but that he was anxious for the wife to be with him every three weeks at least.  If this relationship was just a casual dating relationship with enjoyable sex, which is essentially the position for which the husband contends, it was surely an extraordinarily expensive process.  Airfares for the wife to (country omitted) every three weeks would be significant.  Indeed, this is so even when one bears in mind that it is common cause that the husband regularly returns to Melbourne as a result of his employee benefits in (country omitted).

6. The final piece of objective evidence is an email sent by the husband at 3.30 am on 23 January 2008, being part of annexure “B” to the wife’s affidavit.

7. The email is conceded to respond to an email message from the wife to the husband in which she effectively offered to end the relationship if it was not working for the husband.  It seems clear beyond doubt that this email was sent in an endeavour to provoke a clear indication of the husband’s position. 

1. I do not propose to set the email out in full.  It runs for some four fairly closely typed pages.  Perhaps the most illustrative single paragraph is the following:

   “What ever path our relationship takes, and Ms Stockdale (I pray we can stay together), I thank you from the bottom of my heart for letting me into your life and your heart.  I thank you for all the love you have given me over the years and I apologise for being slow in giving it back.”

2. The terms of the email, which in my view speak for themselves, quite clearly show a committed relationship.  On the last page, almost at the conclusion, the email reads:

   “If you want to separate, I have got nowhere to stay.” (emphasis added).

3. This email cannot be read in my view as a matter of ordinary common sense as anything other than arising in the context of a deeply committed relationship. 

Brief Observations about Credit of the Primary Witnesses

1. The husband in my view was in the main a good witness.  He answered the questions directly and responsively.  He impressed me as being somewhat literal in his approach to matters but was clearly telling the truth as he best recalled it.  To the extent that I do not accept anything that he said, I would emphasise that the husband has had a strong view about the possible outcome of this proceeding (illustrated, if nowhere else, by the fact that he has spent in excess of $300,000 fighting it).  As a result his memory to an extent has tendered to reconstruct events so as to minimise the contribution of the wife to his own advantage. 

2. Contrary to the submissions advanced by counsel for the husband, the wife was generally a good witness.  There were some areas in which I found her answers unresponsive.  She was certainly determined to craft her answer as she wished and not as counsel was seeking to have her respond to his questions.  To an extent, however, I think both counsel and the wife may be open to some small measure of criticism in this regard.  Counsel was, in my view, overly concerned to leap upon the answers given by the witness before they were finished but, to a greater extent, the wife was concerned, and demonstrably so, to say what she wished to say, whether it directly responded to the question or not. 

3. The wife’s answers to questions about annexure “S 1” to the husband’s affidavit, filed 11 June 2013, were by no means convincing.  This was an email sent to the husband while he was in (country omitted), the terms of which would suggest that the relationship was not as she now puts it.  It should be noted in passing, however, that in the ultimate, I accept that this was an email written when the wife was temporarily unhappy and, in my view, it does not override the significance of the emails from the husband to which I have already referred. 

4. Likewise, the wife’s answers to questions put to her about her possible interest in her late father’s estate and, more particularly, of business interactions with her own mother were, in my view, unconvincing and contrary to the terms of emails passing between her mother and herself. 

Conclusions on the de facto issue

1. In my opinion, this was a classic case of a woman who was more in love with the man she loved than he was in love with her.  I accept that the parties met in 2004 and became intimate and it is clear that she was devoted to him thereafter.  She went down to (omitted) frequently and he came and stayed with her occasionally in Property E. 

2. Nonetheless, while it is clear that the wife was open to, and believed herself from early days to be involved in, a committed and enduring relationship, it is equally clear that this was not, at least initially, the husband’s position.  The evidence of Mr M, which I entirely accept, sits understandably with the husband’s state of mind following a bitter separation only recently beforehand in 2004. 

3. I think that the wife did more for the husband’s children and him when he lived in (omitted) than the husband is prepared to concede, but less than she asserts.  She had her own job and a child to look after in Melbourne, and it is probable that the truth lies somewhere between the parties’ competing versions. 

4. On any view of the matter, the parties, while clearly involved in a sexual relationship, (one which I would infer was entirely satisfactory to both of them, as they continued it, and there is oblique reference to this to the husband’s emails while in (country omitted)) did not live permanently in the same place.  They did not live permanently together, but rather commuted frequently but not invariably between each other’s homes.  They had no commingled finances. 

5. The evidence suggests that while they attended some events together, as persons in a sexual relationship obviously sometimes do, they were by no means seen routinely or on every social occasion in each other’s company. Even when they were, the way in which the husband introduced the wife to his friends was not consistent with a couple committed to a genuine domestic relationship as that phrase is known to the law.

6. Things clearly changed over time.  The question is when.  Once again, and despite all the evidence filed, in my view, the position is fairly clear.  By mid-2007, when the husband went to (country omitted), he had come to realise how much he missed and loved the wife.  His emails to her are clear.  By January 2008, he is devastated at the thought of separation.  The thesis that the parties were not in a committed genuine domestic relationship before then simply cannot be sustained. It is true there was no commingling of finances, but each was caring for the other’s children, to an extent.  X had been to (country omitted) and Y had, as I find, spent at least a week in Melbourne during her work experience with the wife.  The wife did undoubtedly provide a measure of domestic support to both the husband and his children in Melbourne, as Ms B’s evidence confirms. 

7. The calibration of all the relevant indicia clearly suggests to me that by no later than July 2007, the parties were in a committed domestic relationship to the exclusion of all others within the meaning of a de facto relationship within the meaning of s.4AA of the Act.

The parties legal and equitable interests

1. Having made that finding, the next question is whether it is appropriate to make an order altering the property interests of the parties (see Stanford v Stanford [2012] HCA 52). This also requires an examination of the parties’ legal and equitable interests in property as a preliminary point. The following items are agreed to be property of the parties in one way or another, (see MFI-3):

   ·Property S Victoria;

   ·Property K, Victoria;

   ·Property H, NSW;

   ·Property B, NSW;

   ·(omitted) Insurance Policy (matured in 2008);

   ·Wife’s BMW car;

   ·Furniture;

   ·Jewellery;

   ·Husband’s business, (business omitted);

   ·Husband’s savings in bank accounts;

   ·Wife’s savings in bank accounts;

   ·Joint bank account in (country omitted);

   ·(omitted) Trust;

   ·Wife’s business, (business omitted);

   ·Wife’s shares;

   ·Wife’s inheritance from father’s estate.

Liabilities

·Property S and Property K mortgage;

·Property H Loan;

·Property B Loan;

·Wife’s car loan;

·Husband’s credit cards;

·Wife’s credit cards;

·Personal loan from husband’s mother;

·Tax liabilities

Superannuation

·(omitted) Superannuation fund, husband’s interest;

·(omitted) Superannuation fund, wife’s interest;

·(omitted) Super Fund, husband, and;

·(omitted) Super Fund, wife. 

1. Additionally, the wife claims that there should be add backs in relation to the husband’s net increase of the Property S mortgage to prepay legal costs and the wife’s repayment of legal costs. 

2. While, on any view of the matter, the husband owned a substantial proportion of the pool before the relationship commenced in mid-July 2007, given the six year relationship and the fact that both parties now seek that there be a property division, it is plainly just and equitable that there should be one.  

Findings about the pool

1. The parties have put a number of valuations before the court in respect of the pool, but none that seem to me contemporaneous with the finding I have made as to its inception. The parties will need to recalculate the figures in light of these matters. I would make it clear that the wife’s car has a negative value, being worth less in terms of the hire purchase still to be repaid than the amounts it would fetch upon sale.

2. I allot no value to the chattels of the parties as they are not the subject of expert valuation and human ordinary experience shows that the sale of such matters second hand produces but a fraction of their worth.  I note that the husband has a number of properties that are furnished in any event, so that any disparity is likely to be minimal. 

3. Although the husband ascribes a certain value to the wife’s jewellery, she has made no concessions against interest and there is no expert valuation, so I am unable to allot that matter any value either. 

4. In my view, the matter of add-backs is better dealt with in this case by assessing the parties’ positions as at the date of separation and taking such payments as they may have made in relation to legal affairs into consideration (if at all), under s.75(2)(o) in considering their future needs.

Contribution issues

1. This, in many ways, is what this case has been all about, and it is necessary to traverse the materials further. 

2. It is clear that the husband is a highly qualified (occupation omitted).  He has often worked overseas.  His earnings are usually high and, when he worked in (country omitted), his commencing salary was $168,000 per annum, increased to about $184,800 in 2008. 

3. The husband had bought the Property S property in about mid-2001, with settlement on 11 October 2001, and the Property K property in about 2003, with settlement occurring on about 25 November 2003 (husband’s affidavit, 11 June 2013, paragraph 21).  By virtue of the husband’s exertions with his employer in (country omitted), he had, by the time of his return to Australia in early 2009, amassed approximately $400,000 to $420,000 in savings in addition to which he received a substantial severance package in February 2009 of combined shares and redundancy pay, in a total of some $570,000. 

4. It is thus clear that he had amassed almost $1 million in net cash in between 2004 and 2009. 

5. Following his return to Australia, the husband and the wife cohabited until their marriage in 2010 and, although much detail is given of their activities together, in my view it does not take the matter much further.  In or about July 2009, the husband was offered permanent work in (omitted), New South Wales, and the parties agreed to relocate.  In October 2009 the husband purchased a property at Property H for $450,000, out of the cash that he had saved between March 2004 and October 2009.  He also had received a dividend of approximately $10,800 in June 2009 from sale of shares that he has deposed without challenge he also applied to the purchase of Property H. 

6. In about February, March 2010, the parties decided to buy a property at Property B.  The wife paid the $25,000 deposit and stamp duty on the property, and the husband took out a loan with the (omitted) Bank on Property H (of which he was the sole registered proprietor) to raise funds to complete the Property B purchase. 

7. The parties thereafter engaged in very extensive renovations to the Property B property, although there is considerable doubt that the approximately half a million dollars so contributed has actually raised its value much.  Despite some conflict, I have no difficulty, having heard the parties’ evidence, in accepting that the wife applied approximately $100,000 to the renovations, and it seems to me, doing the best I can, that the husband may have supplied up to $400,000. 

8. The wife’s evidence about her dealings with her father’s estate, and the (omitted) Trust, as I have earlier said, struck me as being evasive to an extent.  Nonetheless as I find, the wife’s personal rectitude which as with the husband, was obvious in their demeanour while giving evidence, is such that she will not seek to have any dividend from her mother’s estate until after her mother’s death.  This is so, even if, as I suspect is the case, she has a legal entitlement to do so.  The wife’s share in the (omitted) Trust is worth, as I find, only a minimal amount.  That is the wife’s evidence and she was not sufficiently shaken from it in cross-examination to enable any other finding. 

9. The parties lived together until January 2013, when they finally separated. 

10. The wife’s position at the commencement of the relationship was the subject of some challenge.  The husband’s position was that she had very little in the way of assets, this being contrasted with his own far more munificent situation.  It is clear from the time the husband moved to (omitted), his income was well in excess of $200,000 and, indeed, averaged approximately a quarter of a million dollars per annum. 

11. In fact, as I find, the wife’s evidence given at paragraph 35 of her affidavit, filed 10 July 2013, is more compelling.  The wife had superannuation entitlements of about $65,000 from the breakdown of her first marriage, and had received a property settlement of about $130,000 in 2004.  By 2007, it does not seem to me that her position had very substantially changed.  There may have been some slight improvement in her situation. 

12. The wife runs a business as a (business omitted), and while her income is superficially low, she undoubtedly obtains other benefits by working from home.  Further, she has at all material times had at least some overseas lodgers with her.  The gross amounts involved are not insignificant, although, as the wife rightly pointed out under cross‑examination, the figures quoted fail to take into account the costs that the students would involve, especially in circumstances where the wife convincingly described these students as being something akin to family, and therefore being more indulged than would be the case were the relationship to be conducted on a solely commercial basis.  

13. The wife’s business now has an agreed value of $84,000. 

14. Taking a step away from the all-too-numerous minutiae which the parties were so keen to stress, and which, as I find, really do not alter the overall picture in any substantial way, it is clear, insofar as contribution is concerned, that:

    a)The husband owned two of the properties, that he still presently owns, prior to the commencement of the relationship.  He paid out the mortgages on these properties entirely by his savings from his work between 2004 and 2009. 

    b)The husband bought the Property H property entirely on his own.

    c)The wife did make a significant contribution to the purchase of Property B, but the husband’s was greater, because his income paid the mortgage after purchase.

    d)Both parties contributed substantially to the renovation of Property B, but the husband’s contribution was far greater. 

    e)The parties jointly contributed to their finances (to use a global term) as best they were able, at the very latest, from late 2008, this being from the time the husband returned finally from (country omitted) until separation in 2013. 

    f)The wife also contributed in a meaningful way, (but not nearly as much), in the period from mid-2007 until the end of 2008. 

    g)The wife also contributed to the husband’s wellbeing, albeit not in the context of a de facto relationship, to an extent it is not possible self-evidently to quantify exactly, but which is not totally negligible and, equally, not of great significance in the period from late 2004 until mid-2007. 

15. Both parties, in my view sought to give excessive emphasis to relatively minor matters and contributions between the parties throughout all these periods.  In my view, a proper calibration of the matter, in all the circumstances as I have described them, is to allot to the husband a loading of some 35 per cent. 

Section 75(2) Factors

1. Here, both parties are in unexceptionable health, and the husband is only some five years older than the wife. 

2. The husband’s children are adults and, although it is clear that the father continues to provide a measure of assistance in the form of accommodation to his daughter, Y, this is not in my view a matter of any moment.  

3. On the other hand, the wife still has W living with her.  Although he is of adult age, he is not yet established in life and will require some element of support, although this is scarcely a matter that should be given great weight.  It is to be presumed that W is to provide for himself as an adult. 

4. Where there is a real disparity between the parties is in their capacity to earn in the future.  The husband has returned from his job in (country omitted), where he earns a very substantial salary package.  It is not certain that he will return, and it is not certain that even if he does, the level of remuneration will be quite where it was before.  Equally, if he obtains work in Australia, he will, unlike the position in (country omitted), be required to pay tax on it. 

5. Nonetheless, and even accepting the husband’s (in my view, somewhat exaggerated) pessimism about his employment future in Australia, or somewhere else overseas, it is clear on any view, even accepting all the criticisms advanced by counsel for the husband about the true nature of the wife’s income, that he will earn approximately twice, or more than twice more than she will. Her income, grossed up, doing the best I can, is not much more than about $90,000 per annum (bearing in mind the cost of looking after the students, to which I have referred).  The husband’s income, in my view, on the evidence, is likely to be well over $150,000 and in all probability over $200,000 per annum. 

6. The husband also will have the benefit of the continuing ownership of the two properties in Property S and Property K.  He has accommodation readily available to him, whereas the wife will have to rent or purchase a property. 

7. This leads, then, to the question of the legal expenses of the parties.  There is some ongoing question as to the nature of add-backs and the degree of existence they may still be held to have, and assuming existence still persists, its scope.  In my view, each case turns to be considered on its own facts. 

8. The husband has spent some $300,000 on legal expenses so far, and has more to come, and the wife, according to her evidence, has spent $37,000.

9. In my view, it is inappropriate, and artificial, to treat this money as still being, as it were, in existence.  These are all, in the particular circumstances of this case, wholly post-separation expenses.  The parties have elected to spend money on this scale (particularly the husband), and, in my view, it is just and equitable that these sums should, as it were, fall where they lie. 

10. Bearing in mind all the relevant considerations, and most particularly, the very significant disparity in earning capacity between the parties, in my view, there should be an 8 per cent adjustment in the wife’s favour, under this heading. 

Just and Equitable

1. In my view, a settlement that produces a 73 per cent result in favour of the husband, and 25 per cent in favour of the wife, is indeed just and equitable.  This relationship lasted, within the de facto definition, from mid‑2007 until early 2013, a period of just over five and a half years.  That is not a particularly long time.  Nonetheless, it had antecedents that, in my view, it is not just and equitable wholly to ignore but which, as I have sought to emphasise, gain but little weight. 

2. Both parties contributed such assets as they had to the increase of the parties’ position.  The contribution made by the wife to the husband, while he was in (country omitted), cannot be by any means wholly written off.  It is clear from the emails that she provided the husband with emotional support and occasional intimacy which were clearly, from the materials, important to him, and which sustained him during the stressful period in his life when he was living overseas on his own and striving to complete his doctorate. 

1. I note that the parties have agreed that superannuation should be calculated on the footing that the parties receive what they had before the relationship, and half as to what accrued during it, which, in my view, is a sensible outcome. 

2. I should note finally that the wife’s counsel in opening sought lump sum spousal maintenance.  He referred to the wife’s return from (omitted) and the need to re-establish her (omitted) business.  Although the evidence shows that the wife indeed has returned to Melbourne and is re-establishing her business, nothing was said about spousal maintenance in final submissions.  Given the property division I am proposing, I do not think spousal maintenance, a matter not ultimately pressed by the wife, is appropriate. 

3. The parties will obviously need to confer to produce the appropriate tables of the resources and to do the necessary sums to divide them.  I will give the parties an opportunity to consider these reasons for judgment and address themselves to that task. 

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  24 October 2014