Surace & Surace
[2022] FedCFamC2F 1637
Federal Circuit and Family Court of Australia
(DIVISION 2)
Surace & Surace [2022] FedCFamC2F 1637
File number(s): PAC 6325 of 2020 Judgment of: JUDGE MURDOCH Date of judgment: 30 November 2022 Catchwords: FAMILY LAW – PROPERTY– Application for property adjustment – 6 ½ year relationship – no children – where the wife seeks a Kennon adjustment based on the husband’s alleged conduct - where the husband has lived with mental health issues - where the relationship was categorised by significant dysfunction – where the husband was the victim of a serious assault by the wife’s daughter - where the wife’s evidence was found to be unreliable and designed to paint the husband in the worst light–- where the court does not find that the husband has perpetrated family violence as alleged by the wife – where the court finds that the husband’s mental health issues did not have a discernible impact on the wife such that it made her contributions more onerous – no basis for the wife’s Kennon claim – where the conduct of the hearing on the wife’s behalf was unfortunate and unnecessary – where the husband made significant and superior financial contributions – Orders made for division of property where the wife receives 15% and the husband receives 85% of property. Legislation: Family Law Act1975 (Cth) ss 75, 75(2) 78, 79(4), 106A, 114(1);
Mental Health Act 2007 (NSW) s33
Cases cited: NHC v RCH [2004] FamCA 633
1 Edgehill & Edgehill [2007] FamCA 1102
Fields & Smith [2015] FamCAFC 57
Gollings & Scott [2007] FamCA 397
Horrigan & Horrigan [2020] FamCAFC 25
Kennon v Kennon [1997] FamCA 27
Kowaliw and Kowaliw [1981] FamCA 70
AJO & GRO [2005] FLC 93-218
S & S [2003] FamCA 905
Stanford & Stanford [2012] HCA 52
Murray & Parsel [2022] FedCFamC2F 626
Trevi & Trevi [2018] FamCAFC 173
Division: Division 2 Family Law Number of paragraphs: 196 Date of hearing: 2-3 August 2022 Place: Parramatta Solicitor for the Applicant Mr Blackah of Counsel Solicitor for the Respondent Mr Havenstein of Counsel ORDERS
PAC 6325 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SURACE
Applicant
AND: MR SURACE
Respondent
order made by:
JUDGE MURDOCH
DATE OF ORDER:
30 November 2022
THE COURT ORDERS, BY CONSENT THAT:
1.That in accordance with section 78 of the Family Law Act 1975 (Cth) (“the Act”), the Court declares that the Respondent have the sole right, title and interest to the interest he presently has in the real property at B Street, Town C being Folio Identifiers … and ….
2.That, in accordance with section 78 of the Family Law Act 1975 (Cth), the Court declares that the Respondent have the sole right, title and interest in the real property at D Street, Suburb E being Folio Identifier ….
3.That subject to any other Order, the Applicant and Respondent shall each respectively retain all interest in and entitlement to:
(a)All personal property now in his/her respective possession or control;
(b)All shares, debentures, units in trusts, bank, building society or credit union accounts standing in his/her name respectively; and
4.All interests in life insurance policies and superannuation funds standing in his/her sole name respectively.
5.That subject to any other Order, the Applicant and Respondent shall each respectively retain any liabilities currently in their sole names or control and indemnify and keep indemnified the other in relation to those liabilities.
NOTATIONS
A.That the issues remaining in dispute for the Court's determination are contained in the Agreed List of Issues in Dispute filed 25 July 2022.
THE COURT FURTHER ORDERS THAT:
6.Order 10 of the Orders made on 28 October 2021 is discharged.
7.Within 7 days the parties do all such things as are necessary to instruct Marriott Oliver Solicitors to disburse the monies currently being held on trust for the husband as follows:-
(a)In payment of the sum of $405,567 to the wife; and
(b)In payment of the balance to the husband.
8.In the event that either party fails or neglects to sign any document pursuant to these Orders, a Registrar of the Federal Circuit and Family Court of Australia (Division 2) is hereby appointed to execute such documents in the name of the party in default so as to give validity and operation to these Orders pursuant to s 106A of the Family Law Act1975 (Cth) upon being satisfied of such failure or neglect by way of affidavit evidence.
9.Each party’s costs are reserved for a period of 28 days from the date of these Orders.
10.All extant applications are otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Surace & Surace has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
For determination by the court is whether there should be any further property adjustment to the wife pursuant to section 79 of the Family Law Act 1975 (Cth) (“ the Act”) arising from the breakdown of the parties’ marriage of four years duration. There are no children of the marriage.
BRIEF BACKGROUND
The husband was born in 1965 and is currently 57 years of age.
The wife was born in 1967 and is 55 years of age.
The wife has two children from a prior relationship; Mr F who is 33 years of age and Ms G who is 31 years of age. Both adult children resided for periods of time with the parties, as did Mr F’s wife and child.
Tragically the husband’s son from a prior relationship, H, died in 2005 at 5 years of age.
The parties commenced living together in 2011, were married in 2014 and separated on a final basis on 27 July 2018.
Both parties agree that the relationship of seven years in total was punctuated by periods of separations. It is not disputed that between 2012 and July 2013 the wife lived with her son, Mr J, for a period of six months. The husband could not live with Mr J and so lived at his place of employment; a transport depot. It is further undisputed that the parties had two further periods of separation under the one roof; being from April 2014 to August 2014 and again for an unknown period of time from 7 January 2015.
I am satisfied and find that the parties did not live together in a domestic relationship for a period of seven years as asserted by the wife. The parties lived under the one roof for a period of 6 ½ years, during which time there were a number of periods of separation. The relationship was also characterised by significant dysfunction both within the relationship and with other people living with the parties including the wife’s adult children and grandchildren, which caused further tension in the relationship.
Subsequent to separation the husband vacated the former matrimonial home and has since been living in a storage container on a block of land gifted to him by his father. The wife and her family continued to reside in the property until its sale in 2022.
AGREED FACTS
The parties prepared a List of Agreed Facts and Chronology.[1] The agreed chronology and facts is as follows:-
[1] Joint Chronology filed 25 July 2022 (“Exhibit J3”).
DATE
EVENT
1965
Husband born.
1967
Wife born.
1984
Husband purchased B Street, Town C property.
2007
Husband receives $300,000 compensation for death of his son H.
2011
Parties commenced cohabitation. Husband moved into the wife's apartment in Suburb K.
2011
Husband paid off two of the wife's credit cards.
2011
Husband enters into contract for the purchase of the Suburb L property, being vacant land for $281,500. Wife asserts that she paid approximately $14,005 for the deposit.
Husband asserts that the Wife paid approximately $13,575 towards the deposit.
2 July 2012
Purchase of Suburb L land settles.
2012
Husband's mother passed away.
2012
Husband received $73,000 from his mother's estate.
2012
Husband bought a Motor Vehicle 1 for $10,000.
Wife's date: October 2013
Husband's date: September 2014
Husband received a rebate of approximately $10,000 from the purchase of the Suburb L land.
2014
Wife began seeing a psychologist. Husband and Wife then see psychologist together.
2014
Parties married.
Wife's date: 2015
Husband's date: 2017
Husband's father gifted the husband the D Street, Suburb E property.
Mid 2015
M Pty Ltd formed and parties commence their own transport business.
2016
Husband began employment at Company N after transport accident.
6 May 2016
Husband had a transport accident and could not work. Shortly thereafter, the Husband began receiving worker's compensation.
Mid 2016
M Pty Ltd ceased operation.
2018
Husband's father passed away while the husband was an inpatient at O Hospital in Suburb P.
27 July 2018
Parties separated on a final basis.
9 August 2018
Husband attended Suburb Q Police Station. Husband was taken to the psychiatric emergency care unit at Suburb R Hospital.
September 2018
Wife sold the Motor Vehicle 2.
13 December 2018
Final ADVO taken out by consent without admissions for the wife’s protection naming the husband as the defendant.
Mid 2020
Wife withdrew $2,600 from her superannuation for living expenses. Husband asserts that the sum was $1,680.
14 October 2020
Wife's application to victim services for a recognition payment was determined.
6 November 2020
Wife filed an application to vary the apprehended violence order at Suburb S Local Court seeking an extension.
Early 2021
Wife paid out her personal loan for the campervan.
11 February 2021
Order varying the apprehended domestic violence order was made, which extended the ADVO to 10 February 2023.
September 2021 to December 2021
Wife paid half of the mortgage repayments, being $300 per week.
26 October 2021
Interim orders are made for the Husband to insure the Suburb L property.
28 October 2021
Interim orders made, including an order for the sale of the T Street, Suburb L property.
25 February 2022
Order varying the apprehended violence order was made and the T Street, Suburb L property was no longer listed on the ADVO.
28 April 2022
Suburb L property sold at auction.
2 June 2022
Settlement of the T Street, Suburb L property sale occurred.
LITIGATION HISTORY
The wife commenced these proceedings on 25 November 2020. The husband filed his response on 17 March 2021.
The wife’s Initiating Application also sought interim orders. That interim application was determined on 28 October 2021.
The wife’s interim application sought broadly that:-
·The matter be listed on short notice;
·That the wife have exclusive occupation of the property situated at and known as T Street, Suburb L in the state of New South Wales (“the T Street, Suburb L property’);
·That the husband be restrained from coming within 100 metres of the T Street, Suburb L property;
·That the husband be restrained by injunction from dealing with all three items of real estate titled in his sole name and dissipating any sums of money from his bank accounts; and
·That the husband pay to the wife the sum of $500 per week spousal maintenance or in the alternative a lump sum of $75,000.
The husband in broad terms sought the sale of the T Street, Suburb L property with each party to receive the sum of $50,000 from the net proceeds of sale with the wife to pay all outgoings until she vacated the property 28 days prior to settlement of the sale.
A Senior Judicial Registrar heard the wife’s interim application on 26 October 2021. Judgement was reserved with an order made that the husband do all things necessary to insure the T Street, Suburb L property to a value of not less than $1.2 million as the property had not been insured by the wife notwithstanding that she had the benefit of occupation.
Judgment was delivered and orders made determining the interim application on 28 October 2021 that:-
·the husband do all things necessary to sell the T Street, Suburb L property;
·from the net proceeds of sale the parties each receive the sum of $50,000;
·the wife was to permit the agent to inspect the property and take photos as required by the agent from time to time;
·the wife was to ensure the house was presented in a clean and tidy state at all inspections, the open house inspections and for the auction;
·the wife was to leave the property, remove the dogs and cause any other occupants of the property to leave for the duration of any open house inspections arranged by the agent;
·until 28 days prior to the completion of the sale of the property the wife was entitled to occupy the property to the exclusion of the husband; and
·the wife was to vacate the property, remove the dogs and or chattels not included in the sale and cause all other occupants to vacate the property 28 days prior to the completion date of the sale of the property.
·Pending the wife’s vacation of the property she was to:
·pay all outgoings of the property including mortgage payments, local council rates, the costs of all reasonably necessary repairs and maintenance to the property, all electricity, phone, excess water, and any other accounts that were referable to the wife’s occupation of the property;
·keep the property clean and tidy and in a good state of repair; and
·keep all improvements insured against all normal insurable risks in an amount recommended by the insurance company.
·In the event the wife failed to pay any of the above outgoings, the amount by which the wife’s default had decreased the net proceeds of sale was to be added to the net proceeds of sale for the purposes of calculating each party’s share of the net proceeds of sale and thereafter the husband was to be paid the amount so determined by the court or as agreed and the wife was to receive the balance. Any unpaid outgoings were to be paid from the proceeds of sale.
·The wife was to indemnify the husband from liability in respect of those outgoings for which she had liability pursuant to the orders.
·The wife was to co-operate in every way with the agent including making the key or a security code available to the agent and not doing or saying anything to hinder or prevent a sale being affected.
·The wife was to permit the husband’s representatives and contractors to attend the property at all reasonable times on not less than 72 hours’ notice to inspect the property with the agent and to be on the property without the agent to affect any repairs and maintenance of the property prior to sale which the wife has failed to undertake.
·The wife was ordered to withdraw the caveat secured against the property by no later than 4:00pm on Thursday, 4 November 2021.
THE COMPETING PROPOSALS
At the commencement of the hearing the wife sought Orders on a final basis in accordance with the Amended Initiating Application filed on 11 March 2022 broadly that:-
·Within 28 days the husband pay to the wife a sum equivalent to 50% of the total asset pool, ‘including any undisclosed assets.’
·In the event the husband fails to pay the required sum, then the property at D Street, Suburb E New South Wales (“the D Street, Suburb E property”) be sold by with the proceeds of sale to be disbursed as follows: –
·in payment of any sale costs;
·in payment of a sum sufficient to discharge the loan secured by way of mortgage over the property;
·in payment of any costs incurred to determine the value or selling price of the property;
·in payment of a sum equivalent to 50% of the total asset pool ‘including any undisclosed assets’ to the wife with such payment to be deposited into the trust account of the wife’s legal representatives; and
·in payment of the balance to the husband.
·That pursuant to section 114 (1) of the Act the husband be restrained from approaching or communicating with the wife or from causing any third party to do so on his behalf.
·That each party otherwise retain all interest and entitlements to property currently in their respective possession or control including superannuation entitlements.
·That each party indemnify the other party with respect to any liabilities currently in their sole names.
·That in the event either party refuses or neglects to execute any document necessary to give effect to the orders that a registrar the court be appointed pursuant to section 106A of the act to execute such document.
The husband sought Orders on a final basis in accordance with the Amended Response filed on 15 June 2022 broadly that:-
·Pursuant to order 10 of the orders made on 28 October 2021 (“the interim orders”) the outgoings that the wife has failed to pay in accordance with order 9 of those orders shall be added to the value of the net asset pool (“the adjusted net asset pool’).
·The husband shall receive 85% of the adjusted net asset pool.
·Within seven days the husband receive from the funds held in the husband’s solicitors trust account the amount required to pay to the husband the sum of 85% of the adjusted net asset pool.
·that the husband be declared to have the sole right title and interest in:
·the D Street, Suburb E property; and
·the B Street, Town C property.
·That within seven days the wife deliver to the husband all documents in the wife’s possession relating to the construction of the house and other improvements at the T Street, Suburb L property together with the husband’s personal documents, and the picture frame containing a photo of the husband’s son H.
·That in default of the orders the defaulting party is to pay all reasonable solicitor/client costs incurred in enforcing the orders.
The parties by way of a Short Minute of Order agreed that:-
·the husband shall retain the B Street, Town C and D Street, Suburb E properties;
·each party shall retain all interest and entitlement in all property including superannuation currently in their names; and
·each party shall be responsible for and indemnify the other with respect to all liabilities currently standing in their respective names.[2]
[2] Joint Short Minute of Order dated 28 July 2022 (“Exhibit J1”).
Both parties further agreed that: -
·it was appropriate that an order be made pursuant to section 106A of the Act to give effect to any orders as to adjustment made by the court; and
·that the sum of $85,684 be paid to Company U from the net proceeds of sale being the agreed sum required and invoiced for the repairs and preparation of the T Street, Suburb L property for sale. In circumstances where these monies have not been paid and were therefore still outstanding by consent an order was made in this regard on the last day of the hearing.
The wife during the course of submissions advised the court that in circumstances where it is agreed the husband will retain the two items of realty the order she seeks by way of an adjustment pursuant to section 79 of the Act comprises the entire net proceeds of the sale of the T Street, Suburb L property currently being held in the trust account of the husband’s solicitor.
The husband during the course of submissions advised the court that he seeks an order that the net proceeds of sale of the T Street, Suburb L property be disbursed as to 85% to him and 15% to the wife.
It was the wife’s evidence during cross examination that in 2021 she arranged a “council clean up” and threw all of the husband’s belongings out including a photo of the husband’s deceased son. This was done without any prior notice to the husband and without affording him any opportunity to be able to collect his personal items including those of such sentimental value. In light of this evidence counsel for the husband appropriately conceded that it would be futile for me to make any orders that the wife deliver to the husband his personal documents and the photo and in those circumstances the order was not pressed.
The wife sought in her amended initiating application an order pursuant to section 114 (1) of the Act restraining the husband from approaching or communicating with the wife or from causing any third party to do so on his behalf. No submissions were made by Counsel for the wife in support of such an order. It appears that this order was not pressed. In any event, I am not satisfied there is a sufficient evidentiary basis to ground the making of such an order and I will not make it.
The remaining issue for determination by the court therefore is the disbursal of monies from the proceeds of sale of the Suburb L property currently being held in the trust account of the husband’s solicitor having regard to the agreed position as to the items of property and superannuation each party is otherwise to retain.
THE ISSUES FOR DETERMINATION
As directed by the court, the parties prepared a Joint Statement of Issues. The parties’ stated issues for determination by the court are:[3]-
1. Pool issues, namely any items that are not agreed on the joint Balance Sheet, and non-disclosure.
2. Payment of expenses to repair and ready the [T Street, Suburb L] property for sale.
3. The appropriate division of the parties' asset pool.
4. An assessment of the parties' respective financial, non-financial and homemaker contributions.
5. An assessment of any adjustment to either party under section 75(2) on the grounds of their respective health and earning capacity.
6. Whether the Husband perpetrated domestic violence on the Wife.
7. If it is found that the Husband did perpetrate domestic violence on the Wife, the impact of this domestic violence on the Wife and whether an adjustment should be made in the Wife's favour in accordance with the principle established in Kennon and Kennon [1997] FamCA 27.
[3] Joint List of Agreed Issues filed 25 July 2022 (“Exhibit J2”)
As stated above, the issue as to the payment of expenses to repair and ready the T Street, Suburb L property for sale was resolved on the final day of the hearing by way of consent orders being made.
THE WITNESSES
The Wife
I am satisfied and find that the wife’s affidavit was drafted in a manner to present both herself and her case in the best possible light.
It was the wife’s written evidence that the husband had “savings” at the commencement of the relationship.[4] She accepted ultimately in cross examination that the husband’s savings were in the vicinity of $300,000. I accept the husband’s submissions that the wife’s written evidence was designed to diminish the husband’s contributions.
[4] Affidavit of Ms Surace filed 12 April 2022, paragraph 12 (“Wife’s Affidavit”).
The wife clearly and unequivocally deposes that:
I recall that I paid the sum of $3,300.00 per month towards the mortgage for the [T Street, Suburb L] property since around July 2013 until around 2016. The mortgage repayments decreased to $2,400.00 per month and I paid this sum from around 2016 to September 2021. From September 2021 to December 2021, I paid the cost of half of the mortgage repayments, being $300.00 per week. [Mr J] did not contribute to the mortgage.[5]
[5] Ibid, paragraph 18.
The husband deposes that when the parties started renting out rooms in the Suburb E property they were receiving rent of $300, $250, and $390 respectively for each of the bedrooms each week. In addition, after the granny flat was built it was rented out as well.[6] Mr F and his family moved into the granny flat from 2014 to 2018. The mortgage was paid for from the rental monies received and part time cleaning work the parties undertook.[7]
[6] Affidavit of Mr J filed 12 April 2022, paragraph 59 (“Husband’s Affidavit”).
[7] Ibid.
The wife’s evidence on this issue was a moveable feast. During the course of cross examination the wife conceded that the husband maybe “once or twice” could have contributed to the mortgage. The wife was then afforded the opportunity to read the husband’s affidavit as her evidence was she had not done so prior to the final hearing. Having done so, the wife then conceded that the husband “made little contributions.”
Upon further cross examination the wife eventually conceded that the monies used to pay the mortgage at least from 2015 to 2018 came from rental monies received from tenants in the property. The wife was physically responsible for attending to payment of the mortgage after collecting these monies but it was not, as inferred by the wife in her affidavit, her money that was applied towards the mortgage payments. The wife’s evidence in cross examination was that from 2015 to August 2018 every single room in the Suburb E property was rented out and her son and his wife lived in the granny flat. It was the wife’s evidence that sometimes the husband would collect the monies but normally it was her. The wife ultimately conceded that she relied upon these rental monies paid in cash to pay the whole of the month’s mortgage. Her written evidence in this regard can be described as misleading at best.
The wife asserts that the husband’s conduct, including the perpetration of family violence should be taken into account when assessing each of the parties’ contributions. She gives evidence as to her allegations of violence occasioned upon her by the husband. She does not give any evidence as to a significant assault occasioned by her daughter upon the husband in her presence.
I had the opportunity to closely observe the wife in person in the witness box. I found her to be non-responsive in many of the questions that were asked of her. Her evidence was contradictory. She was unable to recall many incidents and transactions that were put to her during the course of cross examination.
I formed the view that the wife was loathe to answer questions in a way that would not assist her case. I found that the wife was only able to recall specific parts of incidents that would assist her case and not other parts that may have assisted the husband’s case. I found her evidence and her version of events to be unreliable and designed to paint the husband in the worst light.
I approach the wife’s evidence as a result of the above with extreme caution.
Mr F
Mr F, the son of the wife from her first marriage gave evidence on his mother’s behalf. I found portions of his evidence to be evasive and designed to ensure that his evidence supported his mother’s version of events.
At times his evidence contradicted the evidence of his mother. I approach his evidence with caution.
The Husband
The husband in these proceedings has limited numeracy and literacy skills. He left school at the age of 14. He deposes and I accept that he cannot read a newspaper or a book. He cannot operate a computer. He understands simple spoken words but has difficulty understanding anything more complicated. He has suffered a terrible tragedy in his life. He has lived with mental health issues since this time including major depressive disorder and post-traumatic stress disorder. He has difficulty sleeping.
The cross examination of the husband in what I can only assume was based on the instructions of the wife was unfortunate and unnecessary. The husband was asked repeatedly on two separate days questions relating to his mental health subsequent to the death of his son causing him significant distress. The questioning did not need to involve the repeating of the fact of the death of H but did. I was required to stop such questioning in circumstances where it did not assist me and was designed, in my view, to obtain a reaction from the husband so as to support the wife’s contention in this matter that her contributions were made more onerous as a result of the conduct of the husband. Further unnecessary and inflammatory language was used by Counsel for the mother in describing the husband’s mental health issues and his alleged actions. I do not propose to dignify such vernacular by repeating it.
Despite the assertions and terminology used by Counsel for the mother I did not find that the husband’s reaction to the unnecessary and hurtful questioning by him was that he became “enraged…in my submission, very easily” as submitted by counsel for the wife. The husband’s voice did become louder and he questioned the relevance of such questions which were obviously upsetting. I find that this response was reasonable and understandable. I adjourned the proceedings for a short time to allow him to compose himself and he did.
I find that the husband answered the questions asked of him as best he could in the circumstances. He made many concessions during the course of his cross examination. Criticism was made of the husband’s inability to specifically recall attendances upon certain medical practitioners on certain dates. I accept the submission made on behalf of the husband that his inability to recall specific attendances on specific dates must be seen in the context of the significant exposure the husband has had to medical practitioners from 2005 onwards. In any event, it is not a memory test.
Despite the repeated questioning of the husband as to his memory, I accept his evidence that he does not recall everything and does have memory issues. I found the husband to be a credible witness and he was forthright in telling the court if he could not recall a specific event.
THE STATUTORY REGIME
I should only make orders pursuant to s 79 of the Act if I am first satisfied that it is just and equitable to do so. It must not be assumed that the parties’ rights or interests should be different to that which already exists: Stanford & Stanford (2012) FLC 93-518 (“Stanford”).
In determining claims for alteration of property interests pursuant to s 79, I am required to:
(a)Make findings as to the identity and value of the property, liabilities, and financial resources of the parties, or either of them, at the time of the hearing and determine the legal and equitable interests of the parties in such property;
(b)Consider, identify and assess the contributions by the parties to the acquisition, conservation and/or improvement of their property, including financial and non-financial contributions and any contributions to the welfare of the family before, during and after the relationship came to an end;
(c)After consideration of altering the interests in the property pool on the basis of contributions, to consider whether there should be any further adjustment to either of the parties on account of the matters set out in s 79(4)(d)-(g) of the Act, including any relevant considerations pursuant to s 75(2) of the Act; and
(d)Ensure that the orders to be made are just and equitable in all the circumstances.
THE BALANCE SHEET
By the conclusion of the final hearing there was significant agreement as to the balance sheet.
Grounded from the draft Joint Balance Sheet and the parties’ concessions and submissions, I have constructed the balance sheet contended by the parties as follows. The items that are in dispute and their values are in bold.
Ownership
Description
Wife’s value
Husband’s value
ASSETS
1
Husband
Sale proceeds of T Street,, Suburb L NSW
1,128,676
1,128,676
2
Husband
D Street, Suburb E NSW
2,570,000
2,570,000
3
Husband
B Street, Town C NSW (50% share - owned jointly with Mr V)
150,000
150,000
4
Husband
Motor Vehicle 3
3,450
3,450
5
Husband
Motorcycle
E 6,000
E 6,000
6
Husband
Westpac account #...03
0
0
7
Wife
Motor Vehicle 1
325
325
8
Wife
Campervan
6,000
6,000
9
Wife
CBA account #...50
25,416
25,416
10
Wife
CBA account #...98
155
155
11
Wife
Bank W account #...63
682
682
12
Wife
All household furniture and appliances
4,000
E 20,000
Total
$3,894,704
$3,910,704
ADDBACKS
14
Wife
Motor Vehicle 2 sale proceeds
$15,000
35,000
15
Husband
Sale proceeds from motor bike
7,000
7,000
17
Wife
Partial property settlement
50,000
50,000
18
Husband
Partial property settlement
50,000
50,000
Total
$122,000
$142,000
LIABILITIES
20
Husband
Capital Gains Tax on Suburb L sale
E 49,415
E 49,415
Total
$49,415
$49,415
Member
Name of Fund
Type of Interest
Wife's value
Husband's value
21
Husband
Super Fund X
Accumulation
96,869
96,869
22
Wife
Super Fund Y
Accumulation
0
0
Total
$96,869
$96,869
NETT TOTAL ASSETS (including Superannuation)
$4,064,158
$4,100,158
BALANCE SHEET FINDINGS
Items 1- 12: Assets
Item 1: Sale proceeds of the T Street, Suburb L Property
The net proceeds of the sale of the T Street, Suburb L property as listed in the parties’ joint balance sheet was $1,214,359.57. The husband contended a liability due to Company U in the sum of $85,684.00 being for maintenance and repairs to prepare the property for sale. This sum had not been paid. The wife initially disputed this liability. On the last day of the hearing consent orders were made that the sum of $85,684.00 was to be paid to Company U from the net proceeds of sale held in the solicitor’s trust account. The net proceeds remaining has been amended on a rounded off basis to the sum of $1,128,676 to reflect the payment of this liability.
Item 12: Household Furniture and Appliances in the wife’s possession
There is no expert evidence with respect to the value of the furniture and appliances in the wife’s possession. The wife asserts the value is $4,000. The husband asserts the value is $20,000 which is the value that was ascribed to such items by the wife in her prior Financial Statement filed on 26 November 2020.
During the course of cross examination the wife gave evidence that the reason for the change in value asserted by her was that “a lot of it was broken.” This is in contrast to the note made on the wife’s behalf in item 12 of the joint balance sheet that the wife disagrees with the husband’s estimate as “the home contents are old and not in good condition.” Whilst I do not accept the wife’s evidence in circumstances where there is no expert evidence as to the value of the personalty and furniture in the wife’s possession, I must accept her asserted value against interest of $4,000.
Items 17 and 18: Agreed Add Backs
The parties have agreed that monies received by each of them from the proceeds of sale in the sum of $50,000 being items 17 and 18 on the balance sheet shall be notionally added back to the pool of assets to be adjusted pursuant to section 79 of the Act.
Items 14- 18: Contested Add Backs
Item 14: Motor Vehicle 2 Sale Proceeds
The husband asserts that the net proceeds of sale of the Motor Vehicle 2 in the sum of $35,000 receive by the wife post separation should be notionally added back to the balance sheet. No specific submissions were made as to the basis for this assertion.
The wife deposes that in September 2018 she received the sum of $32,000 from the sale of the motor vehicle. She alleges that she applied the sum of $11,000 to a veterinarian bill, with the balance of the monies being applied towards bills, the arrears on the mortgage over the T Street, Suburb L property and legal fees in the sum of $15,000.[8] The wife concedes that the sum of $15,000 should be notionally added back to the asset pool as it was expended on legal fees.
[8] Wife’s Affidavit, paragraph 87.
Items 15 and 17: Sale proceeds from the Motor Bike
Item 15 is a sum of $7,000 the husband received on 5 July 2021 from the sale of a motorbike to his brother. He received the sum of $5,000 as he owed his brother the sum of $2,000 which is listed as a liability (-$2,000) under the heading “add backs.” Thus the husband received net the sum of $5,000.00. The wife contends that the sum of $5,000 should be notionally added back to the asset pool as it is a premature distribution to the husband.
The husband deposes that the remaining $5,000 he received was applied towards payment of day to day living expenses and fuel.
The Full Court in AJO & GRO [2005] FLC 93-218 identified three clear categories where it may be appropriate to notionally add back an item of expenditure:
·where the parties have expended money on legal fees;
·where there has been a premature distribution of matrimonial assets; and
·where there has been a waste, reckless, negligent or wanton dissipation of assets as outlined by Baker J in Kowaliw and Kowaliw (1981) FLC 91-092.
Notionally “adding back” items to the asset pool is a discretionary exercise which ought to be the exception rather than the rule: NHC & RCH. As stated by the Full Court in Trevi & Trevi [2018] FamCAFC 173 at [30]:
When the discretion is exercised in favour of adding back, it reflects a decision that, exceptionally, in the particular circumstances of a case, justice and equity requires it. The second premise is its corollary: in cases that are not “exceptional” justice and equity can be achieved, not by adding back, but by the exercise of a different discretion – usually by taking up the same as a relevant s 75(2) factor. Indeed, it has been said that the latter is “a course which is, perhaps, technically more correct” than adding back to the list of existing interests in property.
The parties have now been separated for 4 years and they are entitled to reasonably conduct their affairs post separation: Gollings & Scott (2007) FLC 93-319. Reasonably incurred expenditure usually does not come within the accepted categories of an “addback”. A party is not expected to be able to provide a precise audit as to every post separation expenditure: Edgehill & Edgehill [2007] FamCA 1102.
Neither party submitted that the application of funds received by the parties from the sale of motor vehicles was unreasonable. Consistent with Full Court authorities I am satisfied it was reasonable for both of the parties to apply capital received from the sale of motor vehicles to the payment of living expenses including the payment of bills and veterinary expenses. The wife conceded that the monies expended by her on legal fees should be added back to the balance sheet. In those circumstances I am satisfied and find that the item to be notionally added back to the balance sheet will be the legal fees expended by the wife in the sum of $15,000. The remaining items are rejected.
Accordingly, I find that the property pool consists of assets and liabilities as follows:-
Ownership
Description
Value found
ASSETS
1
Husband
Sale proceeds of T Street,, Suburb L NSW
1,128,676
2
Husband
D Street, Suburb E NSW
2,570,000
3
Husband
B Street, Town C NSW (50% share - owned jointly with Mr V)
150,000
4
Husband
Motor Vehicle 3
3,450
5
Husband
motorcycle
6,000
6
Husband
Westpac account #...03
0
7
Wife
Motor Vehicle 1
325
8
Wife
Campervan
6,000
9
Wife
CBA account #...50
25,416
10
Wife
CBA account #...98
155
11
Wife
Bank W account #...63
682
12
Wife
All household furniture and appliances
4,000
Total
$3,894,704
ADDBACKS
13
Wife
Payment of legal fees and expenses
15,000
14
Wife
Partial property settlement
50,000
15
Husband
Partial property settlement
50,000
Total
$115,000
LIABILITIES
16
Husband
Capital Gains Tax on T Street, Suburb L sale
49,415
Total
$49,415
Member
Name of Fund
Type of Interest
Wife's value
17
Husband
Super Fund X
Accumulation
96,869
18
Wife
Super Fund Y
Accumulation
0
Total
$96,869
NET TOTAL ASSETS (including Superannuation)
$4,057,158
I find that the value of the parties’ non-superannuation property is $3,960,289.
I find that the value of the superannuation property is $96,869.
The total value of the non- superannuation property and superannuation property of the parties is $4,057,158.
The total value at law of property held by the wife prior to any adjusting order is $101,578.
The total value at law of property held by the husband prior to any adjusting order is $3,955,580.
WHETHER AN ORDER ALTERING PROPERTY INTERESTS SHOULD BE MADE
After hearing all of the evidence I required submissions to be made by the wife as to how the requirements identified in Stanford are satisfied in this matter. After hearing submissions by counsel for the wife, I am satisfied that the requirements are met as:-
·Both parties invoke s 79 of the Act seeking orders for property settlement; and
·The current legal interest of the parties needs to be adjusted when consideration is given to the contribution and other factors identified below.
It is therefore just and equitable in all the circumstances to make orders pursuant to s 79 of the Act adjusting the financial interest of the parties.
THE ASSESSMENT OF CONTRIBUTIONS
At the commencement of the relationship the husband was working as a labourer at Company Z earning approximately $1,000 per week.
The wife deposes that she was employed on a part time basis as a customer service officer earning approximately $10 per hour and working between 6 to 10 hours per week.[9] Thus the wife was earning approximately $60 - $100 per week. She deposes that she has been her mother’s carer since 2009.
[9] Wife’s Affidavit, paragraph 11.
The wife owned a motor vehicle and had some savings in the bank at the commencement of the relationship. The wife asserts she had savings of $20,000.[10] There is no evidence to support this assertion. The husband’s evidence is that he believed the wife had approximately $10,000 in savings.[11] I cannot safely make a positive finding other than to find that the wife had savings of between $10,000 and $20,000 at the commencement of the relationship.
[10] Wife’s Affidavit, paragraph 12.
[11] Husband’s Affidavit, paragraph 41.
The wife concedes she had credit card debts of “approximately” $7,000. The husband asserts that the wife had credit card debts of $8,000. In circumstances where both parties concede that subsequent to the parties living together the husband paid off the wife’s credit card debts, I accept the husband’s evidence as I accept that as between he and the wife he would recall the sum paid by him. The husband further deposes that at the commencement of cohabitation the wife owed her mother the sum of $14,000.[12] This evidence was not challenged and I accept it and so find.
[12] Ibid.
The husband had the following assets at the commencement of the parties’ cohabitation:
·a 50% interest in the B Street, Town C property;
·$300,000 in savings being monies received by the husband for compensation as a result of a negligence claim against Region AB Hospital;
·a utility motor vehicle; and
·approximately $70,000 in superannuation benefits.
The husband did not have any liabilities at the commencement of the relationship.
It is not contested that upon the commencement of cohabitation the parties first lived together in a rental apartment in Suburb K. Neither of the parties had dependent children at this time. It was not put into issue that the wife paid the rent in the sum of $290 per week together with all the outgoings.
The parties moved to live with the wife’s mother in mid-2012 for a period of 6 to 7 months.[13] It is not disputed that the wife contributed approximately $150 per week to her mother for living expenses throughout this period.
[13] Wife’s Affidavit, paragraph 9.
The parties moved to live with the mother’s son, Mr F in early 2013.[14] The wife deposes that this was for approximately 6 months during which time she contributed the sum of $200 per week towards expenses. It is not disputed that the husband could not live with Mr F and so the husband stayed at the transport depot at Suburb AC for approximately six months until the home they were building was completed.
[14] Affidavit of Mr F filed 12 April 2022, paragraph 8.
During the period of the parties’ cohabitation of some 6 ½ years they operated separate bank accounts other than during the time the business “M Pty Ltd” operated. The husband would put the money he earned into his bank account and the wife would put the money she earned into her bank account. The husband deposes that he believes that the wife had an arrangement with her employer whereby a portion of her salary was paid into her son’s account.[15] There is no evidence from the wife as to why this arrangement was made.
[15] Husband’s Affidavit, paragraph 47.
In 2011 the husband paid out in total the wife’s credit card liabilities.
In 2011 the husband entered into a contract to purchase land at T Street, Suburb L in the state of New South Wales (“the T Street, Suburb L property’). I am satisfied and find that the husband contributed the sum of $281,000 of his compensation monies to purchase the property.[16] I am satisfied that a cheque in the sum of $13,575 (rather than the $14,075 asserted by the wife having regard to Exhibit A to her Affidavit) with AD Pty Ltd was also drawn and paid towards the costs of acquisition and that the wife was the sole director and shareholder of this company. There is no evidence as to the source of such funds and whether they were a loan from the company to the wife that had to be repaid or it was income or dividends received by her from AD Pty Ltd. I am unable in those circumstances to safely make a finding that the wife contributed this sum towards the acquisition cost. The wife further deposes that she contributed the sum of $1,500 for a deposit for the property and I accept and find that this was so.
[16] Ibid, paragraph 65.
There is a dispute between the parties as to who paid the $10,000 in 2012 to a mortgage broker as his fees to arrange a loan used to build the house on the T Street, Suburb L property. The husband was cross examined on this issue and was quite clear in his evidence that he paid the sum of $10,000 in cash to a finance broker in Suburb AE. I am unable to safely make a finding having regard to the lack of independent evidence from either party in this regard.
In late 2011 the husband began working on a full time basis as a transport worker. It is unchallenged that he worked long hours and earnt approximately $2,000 a week gross.
The parties undertook cash cleaning work in addition to their regular work.
In July/August 2012 the husband received the sum of $75,000 from his late mother’s estate. The wife’s written evidence was that she was “unsure” as to how the husband spent this money.[17] During the course of her cross examination at first the wife said that the husband purchased bricks and mortar tools and applied some of the money towards landscaping the T Street, Suburb L property. She then retracted that and said that she was not sure what he spent his money on: “I never asked him”.
[17] Wife’s Affidavit, paragraph 25.
In 2012 the wife received an insurance payment for a car claim in the sum of $30,000. It is accepted by both parties that the sum of $19,000 - $20,000 was applied towards the construction of a swimming pool.
The wife concedes that the husband paid the sum of $21,000 to Company AF from his savings for variations to the plans to the home.[18]
[18] Ibid, paragraph 23.
In February 2013 the husband borrowed the sum of $495,000 from Westpac Bank to build a home on the T Street, Suburb L Property. The loan was secured by way of mortgage over the T Street, Suburb L property and was in the husband’s sole name.
It was uncontested that the wife paid the mortgage on the T Street, Suburb L property for the first twelve months of occupation, during which time there was no rental monies paid.
In July 2013 upon the completion of the house at T Street, Suburb L, the wife’s adult son Mr F together with his wife and child moved in to the T Street, Suburb L property with the parties. The husband deposes that this was not discussed with him prior to it occurring.[19] The wife conceded in cross examination that this caused issues within the household.
[19] Husband’s Affidavit, paragraph 17.
I find, based on the reasons above that the parties relied on rental monies received during the relationship to service the loan secured by way of mortgage on the property. The wife did not, as asserted by her in her affidavit, meet the loan repayments from her own resources.
The wife asserts that she also paid the council rates from December 2012 until September 2020, being the sum of $1,500 per year.”[20] There is no evidence as to the source of funds to meet this expense. Having regard to the misleading nature of the wife’s written evidence I cannot be confident as to the source of funds and cannot make a positive finding in this regard.
[20] Wife’s Affidavit, paragraph 18.
The husband was unemployed for a period of 6 to 12 months between 2013 and 2015. During this time he received unemployment benefits. The parties supplemented their income by carrying out part time cleaning work. They also continued to rent out the rooms in the T Street, Suburb L house and the granny flat. The husband or the wife would deposit the monies into the Westpac mortgage account.[21] The wife asserts that for a 6 month period she assisted the husband by paying the council rates for the B Street, Town C property.[22] There is no evidence as to the source of these funds. I cannot safely make a finding having regard to the nature of the wife’s evidence in this regard.
[21] Husband’s Affidavit, paragraph 50.
[22] Wife’s Affidavit, paragraph 27.
In November 2015 the wife ceased working to commence caring for her unwell father.[23]
[23] Ibid, paragraph 31.
For a reason that has not been explained the wife deposes that in approximately 2015 her mother deposited approximately $100,000 into various bank accounts in the wife’s name to “save for her”. The wife’s mother had access to these accounts.[24] No reason was provided by the wife as to why this occurred.
[24] Ibid, paragraph 32.
In 2015 the husband commenced work for “M Pty Ltd.” After 3 to 4 months the owner decided to sell his business. The parties purchased the vehicles for the sum of $30,000 and the company M Pty Ltd was established. The purchase price money was borrowed from the wife’s mother. The husband was a director of the company.[25] I accept that the loan from the wife’s mother was an indirect contribution made by the wife.
[25] Husband’s Affidavit, paragraph 51 & 52.
The wife undertook all of the administrative tasks for the company including the financial aspects. The husband drove the vehicles and was out driving from approximately 4 am until 6pm each day. The husband used the company credit card to purchase fuel and his lunch.[26]
[26] Ibid, paragraph 53.
The husband deposes that the wife used the money in the business bank account as she wanted. It was used for business and personal expenses and to pay back some of the monies owing to the wife’s mother.[27] It is the wife’s assertion that she did not pay herself a wage. It is her evidence that she occasionally deducted an amount of $500 from the husband’s weekly wages to repay the loan from her mother.[28]
[27] Ibid, paragraph 54.
[28] Wife’s Affidavit, paragraph 30.
The wife was cross examined as to transactions of a Commonwealth Bank Account in her sole name ending in #...50 for the period 26 June 2015 to 11 November 2015. It shows a total sum of $5,000 being deposited into the account with the notation “payment vehicles.” The wife could not recall withdrawing sums from the business to deposit into her account but asserted that the monies were her mother’s, as her mother’s money was in her account also. She denies any of these monies were for her benefit.
The wife was unable to recall transferring the sum of $1,500 on 4 February 2016 into her Commonwealth bank account ending in the number #...82. She was further unable to recall attending the Suburb K branch on 6 June 2016 and transferring the sum of $15,000 cash from the M Pty Ltd account. Her evidence was that “maybe” she withdrew the monies, and it “could have been to pay off the whole of the vehicle to my mum, I’m not sure.”
As the wife’s evidence in this regard was vague and unsatisfactory, I cannot safely make a finding as to how said monies were applied by the wife. I am satisfied and find that the wife withdrew the two sums identified in 2016 from the M Pty Ltd Account totalling $16,500.
On 6 May 2016 the husband was involved in a serious motor vehicle accident whilst driving and shortly thereafter began receiving workers compensation payments. The wife asserts and I accept that she undertook the paperwork and correspondence necessary for the compensation matter.[29] The company received an insurance payout of $24,000. The Husband asserts that $15,000 of this money was used to repay the debt to the wife’s mother.[30] This was not put in issue during the course of the husband’s cross examination. It was the wife’s affidavit evidence that in 2016 she transferred $30,000 to her mother.[31] There again was no evidence as to the source of these funds. If the wife’s evidence is accepted it would appear that the wife’s mother received monies in excess of the monies advanced by her. There is no evidence as to the terms and conditions of the loan.
[29] Wife’s Affidavit, paragraph 40.
[30] Husband’s Affidavit, paragraph 55.
[31] Wife’s Affidavit, paragraph 35.
In any event, the wife conceded during the evidence that she received the benefit of this claim as the monies were applied towards the family whenever it was needed.
In 2017 the husband received a gift from his father of a vacant block of land at D Street, Suburb E being Lot … in DP…(“the D Street, Suburb E property”). The husband asserts that he paid the sum of $15,000 for the stamp duty and costs on the transfer.[32] There is no evidence as to the value of the property at the time of the gift. This property is still held by the husband in situ.
[32] Husband’s Affidavit, paragraph 61.
The husband’s evidence was not challenged and I so find that from his savings at the commencement of the relationship and the various lump sums he received during the course of the relationship he paid for the large expenses and purchases of the parties including:-
·repayment of $14,000 owing by the wife to her mother at the commencement of the relationship. This was paid by way of a bank cheque;
·in 2012 the husband gifted the wife’s son Mr F the sum of $5,000 to buy a motorcycle;
·in 2012 he purchased a Motor Vehicle 1 as a family car for the sum of $10,000;
·in 2012 the sum of $50,000 was paid to Company AF for a deposit on the building contract to build the house on the T Street, Suburb L property;
·in 2013 the sum of $11,000 was applied towards the swimming pool. The Wife concedes $9,000 of this sum;
·in 2013 the sum of $11,000 was paid for earthmoving site costs for the backyard of the T Street, Suburb L property;
·in 2013-14 the costs of constructing the retaining wall in the sum of $15,000;
·in 2014 the sum of $9,000 for the slab around the swimming pool and home;
·in 2015 the sum of $10,000 for the driveway;
·in 2015 the sum of $22,000 for the granny flat kit and slab and a further $13,000 to fit out the granny flat; and
·in 2016 $4,000 to enclose the alfresco area upstairs and $9,000 to install a kitchenette in that area.[33]
[33] Husband’s Affidavit, paragraph 60.
In late 2016/early 2017 the sum of $10,000 was paid to the husband’s sister-in-law Ms AG as part payment for the purchase of her Motor Vehicle 2. This Motor Vehicle 2 was transferred by the husband to the wife at the time of the final separation and it was subsequently sold by the wife and the proceeds retained by her subsequent to separation.
The husband’s superannuation increased from $70,000 to $96,869 during the course of the relationship. There is no evidence the parties were making any contributions to this superannuation and thus this increase weighs in the husband’s favour.
It is not contested that during the relationship until he was injured in addition to his work for long hours the husband carried out a lot of the physical work at the T Street, Suburb L property including building a long retaining wall, the dog kennels and doing the landscaping. There is no evidence the wife undertook any outside work to the T Street, Suburb L property.
It is the wife’s evidence that “during the relationship” she did the cooking, cleaning and washing. There is no evidence as to whether this was undertaken when the parties were living in the home of the wife’s mother. I have accepted that the husband did not live with wife at her son’s home for any significant period of time and slept instead at his place of employment. It is uncontested that the wife assisted the husband with worker’s compensation case with Company AH including corresponding with the husband’s case managers, doctors and lawyers and completing documents. The wife also took the husband to medical appointments and admissions.
The wife submitted that her contributions were made more difficult during the time they lived together as a result of the husband’s conduct. When asked to make submissions as to any specific findings that I would be able to make based on the evidence the wife submitted that:-
·She was present with the husband on two occasions when he took preparatory steps to take his own life and threatened to do so. The husband was taken twice by police to hospital suffering from “some sort” of psychotic episode;
·That she has been subjected to being struck in bed at night whilst asleep and has been injured during those occasions;
·That the husband caused her distress by telling her he was leaving her to find another woman to have a son for him;
·She was “subjected to demeaning and abusive conduct on a very very regular basis throughout the relationship. These are not isolated incidences. These are things that are happening, she said, sometimes daily, sometimes weekly”; and
·The wife was “exposed significantly to the husband’s depression, his post-traumatic stress disorder, his auditory hallucinations, and all of that had an impact on her…..in the course of trying to rescue him from that deep depression, she got damaged along the way.”
The principles relevant to an assessment of contributions in the context of allegations of family violence were set out in Kennon v Kennon (1997) FLC 92-757 (“Kennon”) and further considered in S & S [2003] FamCA 905 (“S & S”).
The Full Court said in Kennon, at 84,294:
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79.
The wife submits that I am able to draw “inferences from evidence” in accordance with Murray & Parsel [2022] FedCFamC2F 626, more particularly at paragraph 235 where Deputy Chief Judge McClelland stated:-
In S & S at [42], the Full Court acknowledged it may be possible for the Court to draw an inference that family violence perpetrated by one party to a marriage may impact upon the contributions that the other party was able to make to the property of the marriage. At [45], the Full Court, quoting Kennon, said that inference must be “obvious” or “very likely” (emphasis added).
The Deputy Chief Judge stated further at paragraph 241:
The Full Court, in Benson & Drury at 80,141 [18], made it clear that the evidence of the nature of violence perpetrated against the victim may be such that, even without expert evidence, a trial judge undertaking appropriate forensic analysis might infer that the violence had a discernible impact on the victim, such that it made the victim’s contributions “significantly more arduous” than they ought to have been.
I will now deal with each of these contentions in turn.
The Wife being present on two occasions when the Husband threatens to take his life
Upon being asked to make submissions as to any specific findings I would be able to make based on the evidence to support the wife’s assertion that her contributions were made more onerous by reason of the husband’s conduct, the wife submitted firstly:
“That she, on two occasions, was present with him during times when he took steps preparatory to take his own life, and threatened to do so. He was twice taken by police to hospital, suffering some sort of acute psychotic episode, it would seem.”
No further details were provided in submissions as to which specific alleged incidences the wife relies upon. It is unclear the particular findings of fact the wife seeks that I make and in those circumstances I will address all allegations made by the wife as to attempts by the husband to take his own life.
The wife deposes that in or around 2012, she told the husband she thought they should separate and the husband went and stayed at D Street, Suburb E while she remained in her Suburb K apartment.[34] The wife alleges the husband called her one afternoon while he was in D Street, Suburb E and told her that he was in the garage and was about to hang himself. “You don’t want me anymore and I’ll hang myself if you leave me.” The wife deposes she consoled the husband over the phone and he returned to her apartment and they later reconciled.[35] The wife concedes that she did not call the Police, she did not call an ambulance, nor did she call any of the husband’s family members. The wife in cross examination asserted that “he was on the noose in his father’s garage.”
[34] Wife’s Affidavit, paragraph 48.
[35] Ibid.
The husband denies this incident occurred. He was not asked any questions in cross examination. I cannot on the evidence safely make a finding that this incident occurred as alleged by the wife.
The wife deposes that “in or around 2015” the parties were cleaning an office when the husband ripped the cable out of the power socket and threw the vacuum cleaner as the cable had become stuck in a chair. The husband then told the wife he was going to throw himself in front of a truck and left and began walking along the road. When the wife lost sight of the husband walking into the bush she called “000”. When she went back home she found the husband there with a bottle of whiskey and slurring his words. The police arrived and the wife deposes that she observed the husband “hit” one of the police officers with his car. The husband was then arrested and taken to Suburb R Psychiatric Hospital under police watch.[36]
[36] Ibid, paragraph 55 to 57.
This incident is denied by the husband. It is the husband’s evidence that in 2014 whilst cleaning as the parties were arguing the husband told the wife that he was leaving and he walked out of the office. He was walking down the street and the wife drove up near him so he told her to stop following him and leave him alone. The husband deposes that as the wife kept following him in the car he crossed through the traffic trying to avoid her. He went back to the house hours later by which time the wife had called the police and he was subsequently taken to a psychiatric unit at Suburb R Hospital. He is unaware as to what the wife had told the police. This was the first time he had ever been taken to a hospital.[37]
[37] Husband’s Affidavit, paragraph 16.
The wife was cross examined in detail as to this incident. During the course of cross examination:-
·She conceded that the parties had “sort of” had an argument.
·She denied that the husband was simply frustrated and wanted to walk off and calm down.
·It was put to her that the husband never threatened to throw himself under a truck and she affirmed her written evidence. She agreed that she was driving along the road with the husband whilst he was walking along.
·She did not concede that it was an over exaggeration on her part to call 000.
·It became clear that the parties are in dispute as to who arrived home first, but she stated that she called 000 the second time “to let them know he was there”.
·She observed the husband assault a police officer. The assault was that “the police officer put his hand on the bonnet and pushed himself away from the bonnet”.
·The wife could not recall whether the husband was charged with assault. She could not recall whether he was charged with driving under the influence.
·She did not think the police took a statement from her.
·She could not recall who else was at the home on this night. She could not recall if her son was present at all.
·When it was put to her that the police record as to the incident is dated August 2014 she stated she could have been wrong with the dates, she is not sure when it was.
·When it was put to the wife that there is no reference in the police notes about the husband assaulting the police the wife stated that: “I accept that if it is written down.” She affirmed again her evidence that she saw with her own eyes the husband get into his car and hit a police officer.
·When asked if it was in fact the wife that tried to stop the husband leaving, she stated: “Maybe I did”.
In cross examination the husband’s oral evidence was consistent with his written evidence. He denied the wife’s version of events. He volunteered that he had told the wife to “fuck off” as she would not leave him alone. He denied threatening self-harm. In response to the question of whether upon attending Suburb R Hospital he was rambling in his speech the husband replied that he was tired as he had walked all the way from Suburb R to Suburb L. The contents of the hospital notes were put to the husband in cross examination. He denied that, he was threatening self-harm after a “domestic” with the wife or that he was angry and aggressive.
The husband’s evidence relating to this incident was consistent. On balance, I accept the evidence of the husband with respect to this incident as between the husband and wife. In circumstances where the husband denied that he was threatening self-harm and was angry and aggressive and the author of the hospital notes was not available for the purposes of cross examination, I cannot safely make a finding in this regard as sought by the wife. In any event, even if such a finding were to be made, the wife was not present at the hospital when the husband presented himself.
In early 2016 the parties agree that the husband went to the granny flat in the parties’ home and made a noose with a rope intending to hang himself. He did not proceed with this course of action after he was seen by the wife.[38]
[38] Husband’s Affidavit, paragraph 21.
The context given by each of the parties as to how or why this situation arose is starkly different. The wife deposes that her mother’s neighbour was over for lunch and after not receiving a response from the husband to her question as to whether he was coming to lunch she went out to the granny flat and saw the husband from outside the window at the top of a ladder with a rope around his neck. She tried to open the door but it was locked from the inside. She saw a large rock, picked it up and shouted to the husband words the effect of: “If you don’t get down from there Mr J, I will break the sliding door and you’ll have to buy new one.” The husband began to step down the ladder and he opened the sliding door.[39]
[39] Wife’s Affidavit, paragraph 61.
The husband deposes that this incident occurred in late April 2016. The husband did not have a good relationship with the wife’s daughter Ms G and believed she was taking the drug “ice.” The wife and Ms G had returned home from a holiday and he and Ms G were arguing. Ms G stabbed the husband in the face with a metal pole. Both the wife and her mother were present. Ms G was later charged for this incident. After the assault the husband said: “I am out. I have had enough” and went to the granny flat and made a noose intending to hang himself. As he put the rope around his neck he saw the wife take a photograph of him with her phone. She picked up a big rock and looked like she was going to break the glass sliding door so he did not proceed any further.[40]
[40] Husband’s Affidavit, paragraph 21.
In cross examination the wife :-
·Conceded that the husband and her daughter would argue and her daughter would become aggressive.
·Asserted that the assault occasioned by her daughter on the husband was self -defence as the husband had pushed her.
·Conceded that her daughter struck the husband in the face with a metal pole causing his face to open up and bleed and that it was a very violent moment.
·Conceded that her daughter was charged by the police but she asserted that she does not know what the result of that was; she does not know if she was convicted but “was told” she did not go to prison. Her daughter “disappeared for a while” after this incident. Surprisingly the wife has not discussed this incident with her daughter.
This assault is not mentioned in the wife’s affidavit material at all. The wife conceded that this assault by her 26 year old daughter took place. Her evidence as to whether the assault occurred on the same day as the husband making a noose to hang himself was inconsistent. At first she was not sure whether it happened the same day as they were always arguing. She then said that she “did not think” it was the same day, she “thought” it was about two incidences. When asked directly as to whether it was on the same day she again said she was not sure. When it was suggested to the wife that it was the same day she then asserted that it was a different day as “the police came and looked through the footage.” I am unsure as to what footage the wife is referring to. It was not in evidence. I cannot accept the wife’s version of events having regard to its inconsistent and unsure nature. The husband was clear in cross examination that he made a noose to hang himself – “that was after the stabbing. Yes.”
As between the husband and wife I accept the husband’s version of events. I accept that he attempted to commit self-harm after being violently assaulted by the wife’s daughter.
The wife’s answer to the proposition that the assault by her daughter on the husband was nowhere in her affidavit was incredulous: “I have left a few things out sir.”
The husband readily conceded that on a cruise ship with the wife in 2018 he climbed the rails of the ship and was contemplating jumping. The husband stated that a Ms AJ pulled him back.
Being Struck at Night in Bed Causing Injury
The husband deposes that subsequent to his accident in 2016 he suffered terrible nightmares and would sometimes lash out in his sleep. The wife would sometimes wake him and tell him that he was punching her and so he would sleep on the lounge. The husband deposes, and I accept, that he never intentionally hurt the wife and voluntarily went for treatment with respect to this issue to O Hospital, such treatment was paid for by the insurance company involved with the motor vehicle accident.[41] The husband was clear in his oral evidence that there were no injuries occasioned to the wife. When it was suggested to him that it was possible that he did injure her and did not recall it, his confident response was: “Well there were no complaints when I was living with her. I am pretty sure if you hit someone or bash someone you would remember that for sure”. I accept this evidence and so find.
[41] Husband’s Affidavit, paragraph 24.
Causing Distress
No submissions were made by the wife as to which particular incidents alleged by her are relied upon to ground this finding. It was submitted during the course of submissions that the husband telling the wife that he was going to find a woman who could have a son for him is a “very damaging statement to make to a wife.” [42] I am not satisfied that the wife has established a sufficient nexus between this statement and her contribution being made significantly more onerous.
[42] Wife’s Affidavit, paragraph 71.
Being Subjected to Demeaning and Abusive Conduct
No submissions were made as to the particular findings of fact relied upon by the wife to ground this broad assertion. It appears that this allegation relates to the wife’s assertion as set out above.
Being exposed to the Husband’s Mental Health Issues: Depression, PTSD, auditory hallucinations
The events of the 9 August 2018 were relied upon during the course of submissions to support this assertion. The husband was admitted to O Hospital on 12 July 2018.[43] Whilst there as an in-patient he received a letter from the wife telling him that she needed 4 months of time to herself as her mother was coming out of hospital and home with her and that during this time she would like “half our wages.” She asked that if the husband wanted to speak with her to organise a meeting at the hospital “through AK only I don’t want your relatives involved.”[44]
[43] Husband Affidavit, paragraph 30.
[44] Ibid, paragraph 31.
The wife deposes that on 9 August 2018 she was at home with her daughter in law. She heard a knock on the door and realised it was the husband. She opened the door slightly to ask what he wanted. She deposes they had the following conversation:
W: what do you want to talk about? Is it about the money you took from me?
H: No fuck off. My son’s money is in here
W: what money? The 280,000 that’s been absorbed by our nearly 8 year relationship? There is no more of your son’s money [Mr J]”
The wife deposes she tried to close the door and the husband pushed her arm so she let go of the door. She alleges he pushed the door and nearly broke her toenail.
“He barged in and I headed towards the back kitchen. He followed me screaming, insulting me and threatening to kick me out of the house. He was screaming words the effect of ‘get the fuck out of my house”.[45]
[45] Wife’s Affidavit, paragraph 72 & 73.
The wife called the police. The husband was charged however the charges were dismissed pursuant to section 33 of the Mental Health Act 2007 (NSW). A final Apprehended Domestic Violence Order was taken out for her protection on 10 December 2018. There is a dispute between the parties as to whether this Apprehended Domestic Violence Order was consented to on a without admissions basis as the Apprehended Domestic Violence Order had the effect of excluding the husband from the property in which he was the sole legal registered proprietor.
The husband’s version of events as deposed in his affidavit is that after leaving the hospital he went home to collect some of his belongings.[46] He knocked on the door and identified himself. The wife opened the door and said to him: “Who let you out.” The husband told the wife that she needed to repay some insurance monies owing to her son. The wife tried to slam the door in his face but it hit his foot and didn’t close. The husband entered the home and they had a conversation. He heard the wife phoning the police. The husband left and went to Centrelink and then went to Suburb Q police station to seek assistance in getting his things out of the house.[47]
[46] Husband Affidavit, paragraph 32.
[47] Ibid.
Upon arriving at the police station he was interviewed by police and they wanted to fingerprint him. The husband concedes he got angry and ripped up the paperwork. He was angry as he had not done anything wrong. The police put him into a police cell and would not allow his brother in to be a support person. The police called an ambulance, he was sedated and taken to Suburb R Hospital and then to prison. He did not challenge the police application for the apprehended domestic violence order as “I knew that, for my own health, I could not be with Ms Surace anymore.”[48]
[48] Ibid, paragraph 33.
In cross examination the husband was clear in his evidence. He went back to his home from O hospital to collect his things. The husband asserts and I accept that at no time was the wife hurt in any way. He was not cross examined as to the wife’s version of events at the home but he was cross examined at length as to his behaviour at the police station and the hospital. It was the wife’s submissions that the husband “went crazy at the police station.” There is no evidence that the wife was present at either the hospital or the prison. I place little weight in those circumstances on the husband’s behaviour at either of these places. There is not a sufficient nexus between these events and an allegation that the wife’s contributions were made significantly more onerous.
It is unchallenged that the husband has had no contact with the wife since the Apprehended Domestic Violence Order was put in place in 2018. It is unchallenged that the husband has not attempted to go to the house or approach the wife in any way subsequent to the Apprehended Domestic Violence Order being made. It is unchallenged that the husband has not breached the Apprehended Domestic Violence Order in any way.
Whilst not referred to during the course of submissions on behalf of the wife, I will address briefly the remaining evidence contained within the wife’s affidavit material that appears to be given to support her assertion that her contributions were made more onerous by way of the husband’s conduct:
·The wife asserts that since 2011 she was subjected to emotional and verbal abuse by the husband “nearly every day.” “His behaviour was erratic and he would become violent and shout.”[49] In the absence of particularity and context I give this evidence little weight.
·The wife deposed that “on one occasion” early on in the relationship the husband went to work and did not return for 10 days. She was worried and called him to check on him but the phone was not answered. She did not call the police. When the husband returned home the wife told him she wanted to end the relationship. The husband said: “You fucking bitch, I don’t need you.”[50] This alleged incident was put into issue. In cross examination the wife did not appear to be able to recall this incident save that when the husband returned she threw all his clothes out and told him she wanted to end the relationship. It appears that this incident reflects the toxic nature of the relationship and that both parties behaved poorly. It does not support a finding that the wife’s contributions were made more onerous.
·The wife deposed “On more than one occasion during our relationship, Mr J said to me words to the effect of: if you ever leave me, I’ll kill myself.”[51] I cannot safely make a finding having regard to the absence of particularity and context. I give this evidence little weight.
·The wife alleges that the husband said to her on more than one occasion “…If you take anything from me, I will buy a shot gun and shoot you between the eyes.”[52] I cannot make a safe finding in this regard based on such vague evidence.
·That in or around April 2014 the husband had an argument with the wife’s son Mr F. The husband was yelling and said words to the effect of “All of you, get the fuck out of my house.” The wife later heard the husband on the phone to her nephew. She alleges the husband said to her nephew: “I want her out of this house so we can sell it and split the proceeds.”[53] The wife’s nephew did not give evidence at all. This alleged incident was put into contest by the husband. I am not satisfied I can safely make a finding grounded on the evidence. In any event, I could not be satisfied that this incident made the wife’s contributions significantly more onerous.
·That there was an argument between the husband and her nephew on 8 August 2014 where “it appeared that one of them may strike the other.”[54] Again the wife’s nephew did not give evidence. Even if this incident occurred I am uncertain as to how it is alleged it made the wife’s contributions significantly more onerous.
·In or around May 2015, the husband had an argument with the wife’s adult daughter Ms G. It is alleged that the husband was swearing and yelling. He said words to the effect of: “Fuck you cunts. This is my house. Get the fuck out.” The wife deposes that she was fearful and left the property for a week and went to Town AL and stayed in a caravan park.[55] The wife asserts that when she and the daughter came back to the property there was a sticky note on the front door that said: “Fuck you bitches.” The husband put this evidence into issue. There is no evidence as to the context of the alleged argument between the husband and the wife’s daughter. There is no evidence as to whether the daughter was yelling and swearing also. The wife was vague about this alleged incident in cross examination. She could not recall what the argument was about between the husband and her daughter. The wife was not part of the argument. She conceded that there was tension between the husband and the wife arising from her children living in the property. All that the wife could recall was the husband and the daughter arguing, and her evidence was that the husband “Probably did say those words. If it is written down he probably did say it.” The wife’s daughter did not give evidence. Given the vague nature of the wife’s recollection of the alleged incident, I do not accept that this incident occurred as alleged by the wife.
·The wife deposes that they would constantly argue and the husband “would verbally insult me and asked me to perform domestic duties for him whilst he continued to insult me.”[56] I cannot safely make a finding based on such broad and unparticularised evidence.
[49] Wife’s Affidavit, paragraph 44.
[50] Ibid, paragraph 45.
[51] Ibid, paragraph 46.
[52] Ibid, paragraph 82.
[53] Ibid, paragraph 49.
[54] Wife’s Affidavit, paragraph 52.
[55] Ibid, paragraph 58.
[56] Ibid, paragraph 63.
In her affidavit the wife deposes that on 15 May 2019 she was hospitalised for attempting to end her life. She deposes she was driving home with Mr F and started having a panic attack. She started crying uncontrollably. She recalls parking the car on the side of the freeway and running across three lanes of traffic. Mr F called 000 and the wife was taken to Suburb R Hospital but discharged later that same day.[57] The wife does not give any evidence as to what occurred immediately prior to this alleged incident. Medical records produced under subpoena by Suburb R Hospital records that the wife told staff that it was not a suicide attempt, she had simply been arguing with her son about a car and its purchase and sale.
[57] Wife Affidavit, paragraph 79.
Mr F’s affidavit evidence, if accepted, provides context to the wife’s assertion. He deposes that he and the wife were having a disagreement and the wife started crying and then said: “I am going to kill myself” before opening the car door and running across the AM Highway.[58]
[58] Affidavit of Mr J, paragraph 52.
I do not need to make a finding of fact as to whether the wife was not being truthful to the staff at the hospital or in the alternative not being truthful to the court. On her son’s evidence the events leading to her asserted attempt on her own life was an argument between herself and her son. I am unable to find a nexus between this incident and the husband’s alleged conduct making the wife’s contributions significantly more onerous.
The wife’s cross examination resulted in some startling evidence. Her oral evidence was that:-
·This is her third marriage.
·Her second husband perpetrated an armed robbery upon her in 2001. He stole her jewellery and she was stabbed by him with a screwdriver in the arm. She was not taken to hospital. Despite this assertion she would not concede that she was the victim of domestic violence by the second husband as ‘his goal was to marry me and steal my money and go to Country AN.” She asserted that they separated after this incident and she was advised by her friend that he went to gaol. The wife then asserted that it was not domestic violence, it was “just a violent incident that one night.” The wife’s evidence was that the parties married on the Saturday, the husband put the house up for sale on the Monday and he stabbed her on the Tuesday. “When he stabbed me he already had my jewellery around his neck, he wore it at the wedding, and I was trying to get it back.’
·She was advised by her neighbour that the husband tried to burn the house down after she had kicked him out. She said this was not domestic violence as she was not with him at the time. She was somewhere else but she could not say where that was. The wife’s evidence was that she then gave her house to her mother and father “in full power of attorney and went overseas”. She said she went overseas for a year but could not tell the court where that was. This property was then sold by her parents prior to her arrival back in Australia. Her parents applied that money to purchase a property at Suburb AO. She could not tell the court the address of this property. The property was sold in 2009 and she received half of the net proceeds of sale of approximately $120,000 to $130,000. The wife asserts that from these funds she purchased a small business.
On these concessions, any mental health issues the wife may now live with may have been the consequence or result of the domestic violence perpetrated upon her by her former husband.
I have not accepted or been able to comfortably make a finding that the husband perpetrated family violence as alleged by the wife. I do however accept that the husband was difficult to live with as a result of his living with mental health issues. I also accept and find that the household, contained as it was of the wife and her children, was difficult to live in for the husband especially having regard to the assault perpetrated by the wife’s daughter upon him – noting of course again that nowhere was this significant assault perpetrated against the husband anywhere in the wife’s affidavit material.
Did then the husband’s mental health issues which made him difficult to live with have a discernible impact on the wife, such that it made her contributions significantly more arduous? The wife’s evidence as to any discernible impacts upon her was broad brush in its approach. At its highest, the wife’s evidence was that:-
·she felt scared and shaken in early 2016 when she observed the husband taking preparatory steps to take his own life;
·she “started taking medication at around this time to manage my conditions.”;[59]
·she began losing her hair in June 2014 and was told alopecia is caused by stress or sudden shock;
·she began seeing a psychologist in early 2014 and stopped in early 2020; and
·she currently takes medication for anxiety and depression.
[59] Wife Affidavit, paragraph 77.
The wife throughout the course of the litigation had the capacity to give direct evidence as to the discernible impacts upon her. She did not do so. Whilst I accept that the absence of expert evidence is not fatal to the wife’s assertions, my findings, even if inferred, must still be grounded on an evidentiary basis.
The lack of an evidentiary foundation for the wife’s assertions appeared to flavour the nature and content of the wife’s conduct of this matter. The nature of the cross examination of the husband and the terminology used during submissions to my mind was designed to cause a reaction in the husband that would be unfavourable to my view of him. This view finds support in the submissions made by the wife that: “ if he is prepared to do that in a police station, and in a witness box, your Honour would have to wonder, what is he capable of doing at home.” Wonderings of the court are not a sufficient basis to ground findings of fact. The conduct of the final hearing of this matter does the wife little credit.
Weighing up all the available evidence I am not satisfied that the wife has discharged the evidentiary onus to establish either direct or by implication that the contended conduct of the husband has made her contributions, in the circumstances of this less than 6 ½ year childless relationship, significantly more onerous than they ought to have been. The contention of the wife that an adjustment to the wife ought to be made from such alleged conduct is rejected.
Post Separation Contributions
The wife and her family have had the benefit, as against the husband, of exclusive occupation of the property at D Street, Suburb E held solely at law by the husband subsequent to the parties’ separation until its sale pursuant to interim orders of the court.
The wife deposes that from separation until September 2021 she paid the full mortgage and household expenses with respect to the T Street, Suburb L Property. From September 2021 until she vacated the property the wife did not pay the entire mortgage and outgoings on the property despite being in occupation and the orders of 28 October 2021 requiring her to do so.
The husband deposes his understanding that from July 2018 until she vacated the property on or about 26 December 2021 the wife received income from renting out rooms in the T Street, Suburb L house and granny flat.
The wife unequivocally disputed receiving the benefit of rental monies for the D Street, Suburb E property subsequent to August/September 2018. It was her oral evidence that she stopped renting rooms in 2018 however she had friends staying with her and she gave them a room as they had nowhere to go. Her oral evidence then became that one friend living in the property was a friend and the other was a “caretaker.” The wife was unable to explain in light of such evidence why her Financial Statement filed on 26 November 2020 deposes that she was receiving the total sum of $540.00 per week rental income from Mr AP and Mr AQ. The wife conceded that she was not telling the truth in her financial statement, as she is telling the truth now. The wife’s later oral evidence was that Mr AQ did pay her rental monies in the sum of $220 per week for approximately 2 to 3 weeks but this ceased as he could no longer afford it.
Having regard to the inconsistent nature of the wife’s evidence the only finding I can safely make is that the wife has received the benefit of rental monies subsequent to the husband vacating the D Street, Suburb E property. The quantum of such funds are unknown in light of the wife’s unsatisfactory evidence on this issue.
It is uncontested that whilst having the benefit of occupation of the property the wife paid for various repairs and maintenance to the property including:-
·repairs to 3 leaking pipes in the amount of $2,500;
·a new pool pump in the sum of $700;
·repairs to power points in the property of $400; and
·approximately $7,000 to re-do the gardens, replace the chlorinator for the pool, purchase a new chlorine system and fix the leaky tap in the granny flat.[60]
[60] Wife Affidavit, paragraph 86.
In mid-2020 the wife withdrew her superannuation entitlements in the sum of $2,600 and applied them towards bills and living expenses.
THE APPROACH TAKEN
Neither Counsel in this matter made any submissions as to what approach should be taken by the court when assessing the contributions made by each of the parties. The parties have agreed as to the items of property each party shall retain save for the distribution of monies held on trust. Both counsel made submissions as to the contributions asserted by each of their clients and any adjustment that should be made thereto and then submitted what percentage adjustment the wife should receive of “what’s on the balance sheet”.
Thus I will assess contributions in line with what appears to be the parties’ agreed position: a global approach applied to a single pool of property of both superannuation and non-superannuation.
At final submissions counsel for the wife submitted that the court should make a contribution finding as to 25% to the wife. It was further submitted that an adjustment of 5% should be made in the wife’s favour pursuant to section 75(2) of the Act. Counsel submitted that a 30% adjustment of the asset pool to the wife would equate to the wife receiving the whole of the sale proceeds of T Street, Suburb L.
The husband contended that the court would make a contribution finding to the wife of 20%. It was further submitted that an adjustment of 5 to 10% should be made in the husband’s favour pursuant to section 75 (2) of the Act. The husband contended that an adjustment to the wife of 15% of the sale proceeds of T Street, Suburb L was therefore appropriate. On the Husband’s construction, the wife will receive $169,301 from the monies being held in trust.
The Full Court in Horrigan & Horrigan [2020] FamCAFC 25 reinforced the holistic approach espoused in Fields & Smith (2015) FLC 93-638 and stated that the proper approach to the assessment of contributions is:
[35] …established that an assessment of contributions is not a mathematical exercise, but rather involves the identification and assessment of all of the parties’ respective contributions, in a holistic way across the course of the relationship and in the post separation period to the point of assessment…
I find that the direct financial contributions of the husband as recorded earlier in these reasons at the commencement of the relationship were significantly superior to those of the wife. He had the same interest in the property at B Street, Town C that he retains today. His significant savings were the springboard to the acquisition of the T Street, Suburb L property. The husband’s financial contributions during the course of the relationship were vastly superior to those of the wife. The inheritance received by him of the D Street, Suburb E property in 2017 now has a value such that it equates to 63% of the total value of the property pool including superannuation entitlements.
I am satisfied that the wife made the higher non-financial contributions during the course of the relationship of homemaker noting the length of the relationship and that there are no children of the relationship. I am satisfied she undertook the paperwork and administration tasks for the household including the transport enterprise from mid-2015 to November 2015 and the husband’s civil claim.[61]
[61] Wife Affidavit, paragraph 30.
I am satisfied the parties’ contributions post separation favour the husband where the wife has had the benefit of occupation of the property to the exclusion of the husband. I will not, as sought by the husband, “add back” the outgoings the wife failed to pay pursuant to the interim orders and then divide this “adjusted” nett asset pool. I will consider this pursuant to section 75(2)(o) below. Thus I will discharge Order 10 made on an interim basis on 28 October 2021.
Adopting the same holistic approach as that adopted by the parties, I assess the parties’ contributions to the property pool as 10% to the wife and 90% to the husband.
By way of cross check in dollar terms this equates to property to the value of $405,716 to the wife and $3,651,442 to the husband. That is a differential of $3,245,726.
RELEVANT S 79(4)(e) – (g) MATTERS
The husband is currently aged 57 years. The husband does not receive any income. The husband is not able to receive Centrelink payments as a result of the real property owned by him. He deposes and I so find that he relies on gifts from friends and family to support himself.[62]
[62] Husband Affidavit, paragraph 6.
The husband is treated with antidepressants and antipsychotic medication. Material tendered by the wife from Ms AR being Exhibit W8 which contain notes of a “return to work” meeting report that the wife stated that
W said will just fill in the job diary because he has to but doesn’t believe he can actually any kind of job…..
W said his capacity should be ‘unfit’
W said [transport work] is no good because of back pain
Whilst counsel for the wife’s submissions entailed canvassing the husband’s limited numeracy, literacy skills and comprehension skills and his cross examination of the husband focused on the husband’s mental health issues and difficulties with memory to support the wife’s contentions as to her contributions, somewhat remarkably he then stated that whilst he could not submit that the husband had a significant amount of earning capacity, “it’s possible that he has some residual capacity.” There is no evidence or even submissions made as to what this residual capacity could be. The husband has not been engaged in any form of paid or unpaid employment since 2016. He was required to surrender his heavy vehicle licence subsequent to his diagnosis of Post-Traumatic Stress Disorder.[63] He forgets things. He still attends upon his psychologist, Dr AS. Whilst he is “better than I used to be” he still suffers from Post-Traumatic Stress Disorder. I am satisfied and find that the husband’s capacity to obtain gainful employment is severely restricted and there is limited capacity for him to return to gainful employment.
[63] Husband Affidavit, paragraph 8.
The wife is aged 55 years. The wife is currently on medication. She is not in paid employment and receives a carer’s pension in the sum of $970 per fortnight as she is her mother’s full time carer. There is no evidence as to why in those circumstances she could not obtain paid employment as a carer. I am satisfied she has the capacity to obtain some form of paid employment but chooses instead to care for her mother.
There is a significant disparity in the property each of the parties will receive as a result of the contribution findings, a differential of $3,651,442.
I have taken each of the parties’ superannuation into account in the property of the parties.
The husband deposes and I accept that he will need funds to build a house for him to live in on the D Street, Suburb E property. The wife’s current living arrangements are unknown.
The parties lived together as a couple for a period of less than 6 ½ years. There are no children of the marriage. The length of the marriage has not affected the earning capacity of either of the parties.
The wife did not pay the entire monies payable by way of the loan secured by way of mortgage on the T Street, Suburb L property despite both her and her family having the benefit of occupation and later interim orders being made that the wife do so. On 8 January 2021 the husband made a mortgage payment of $1,010.50 after receiving notice from the bank that the mortgage was in arrears. At the time the wife vacated the property at the end of December 2021 the mortgage was in arrears in the amount of approximately $3,400. Annexure J to the husband’s affidavit is the Westpac loan summary dated 31 March 2022 from Westpac bank. It shows various charges being made by the bank for missed payment fees and default interest for the period from the statement being 6 April 2021 to 24 March 2022. I accept and find that the wife was not meeting her obligations to pay the mortgage pursuant to the interim orders of 28 October 2021.
I accept and find that at the time the wife vacated the property to the end of December 2021 the council rates were approximately $1,700 in arrears and the water rates were $470.70 in arrears.
Despite the terms of the interim orders the wife only allowed access in November for two real estate agents to inspect the property for the purpose of preparing a sales proposal. She refused to allow any further access to the property prior to her vacating it. In contravention of the interim orders the wife sent an email to the husband’s solicitors as follows on 28 October 2021:
Hi..
Please respect the fact that I do not wish anyone to appear at the property before I move out… In respect to this I’ll be advising the court, for my personal space involved in the vacating of the property.
I will be employing a legal representative within the next week.
Unfortunately, I still live here and have rights.
You will be hearing from my new lawyer soon.”
On 29 October 2021 the husband’s solicitors wrote to the wife serving her with a sealed copy of the court orders dated 28 October 2021. Her attention was drawn to her obligation pursuant to those orders to provide access:
We have sought to assist you by arranging for the agents to do preliminary inspections on the same day. As previously advised the agents will attend with [Mr J’s] representative on Tuesday, 2 November 2021 between the hours of 1 PM and 4 PM. Would you kindly confirm you allow access to the property on Tuesday, 2 November 2021 between a aproximately 1 PM and 4 PM for two real estate agents and [Mr J’s] representative in accordance with the orders….”
The husband’s solicitors sent a further email to the wife on 1 November 2021 requesting confirmation that the wife would allow access to the T Street, Suburb L property. The wife responded on 1 November 2021: “Hi.. No, I’m not allowing access to the property.”
It is uncontested that:-
·The auction scheduled for 18 December 2021 had to be cancelled.[64]
·The wife vacated the property on or about 26 December 2020 and did not hand the keys to the agent until approximately 11 January 2022.
·The agents inspected the property on 12 January 2022 and provided the husband with a report and photographs. The correspondence from the agent stated that works were required to be undertaken to the property prior to it being ready for sale. Such works included weeding the front and back yard behind the granny flat as there were very long weeds, cleaning the pool, the bins were full of rubbish and most of the plantation shutters were damaged.
·The state of the property was such that the next proposed auction dated 1 April 2022 had to be cancelled so that the necessary work could be undertaken.
[64] Husband Affidavit, paragraph 74.
I am satisfied and find that the wife did not properly maintain the property whilst she was in occupation of the property.
As the husband was unable to attend the house as a result of the Apprehended Domestic Violence Order, he was required to make an application to Suburb E Local Court seeking to have that address removed from the Order. The matter came before the court on 25 February 2022. The husband was present at court and heard the wife’s solicitors tell the magistrate that the wife objected to the variation of the apprehended domestic violence order because “she would like to be able to visit the property”. The apprehended domestic violence order was varied as sought by the husband.
I take into account that the wife and her family has had the benefit of occupation of the T Street, Suburb L property for a period of some 3 ½ years subsequent to the parties’ separation. This included the wife’s son and his family and it appears also her mother. The husband was not able to gain access to the T Street, Suburb L property subsequent to the parties’ separation as a result of the Apprehended Domestic Violence Order. During this time the husband lived, and continues to do so, in a storage container that he owns situated on the D Street, Suburb E property.
In effect, the husband has subsidised the wife and her family.
Without any prior notice to the husband and without affording him any opportunity to retrieve any of his personal items in 2021 the wife arranged for the local council to collect all of the husband’s items and she ‘ threw everything out’ including the photo frame formally sought by the husband with a photograph of his son H in it.
Holistically and weighing up all of the above considerations I am satisfied that an adjustment should be made to the wife of 2.5% as the husband will receive significantly more property than her. That equates to the wife receiving a further $101,429.
JUST AND EQUITABLE
I have found that the wife receives 12.5% of the net property. This equates to $507,145.
The Wife is to retain the following by agreement:-
Campervan
6,000
Motor Vehicle 1
325
CBA account #...50
25,416
CBA account #...8
155
Bank W account #...63
682
Household furniture and appliances
4,000
Motor Vehicle 2 sale proceeds
15,000
Partial property settlement
50,000
Super Fund Y accumulation
Nil
Total
101,578
The husband is to retain the following by agreement:-
D Street, Suburb E NSW
2,570,000
The husband’s interest in B Street, Town C
150,000
Motor Vehicle 3
3,450
Motorcycle
6,000
Westpac account #...03
Nil
Partial property settlement
50,000
Super Fund X
96,869
Capital Gains Tax
-49,415
Total
2,826,904
Thus the wife will receive from the monies sitting in trust the sum of $405,567. The husband will receive $723,109.
Standing back and looking at the distribution of assets on an overall basis, I find that this distribution achieves a just and equitable alteration of the property interests of the parties.
Orders will be made accordingly.
I certify that the preceding one hundred and ninety-six (196) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 30 November 2022
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