Tomes and Tomes
[2017] FCCA 3150
•15 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TOMES & TOMES | [2017] FCCA 3150 |
| Catchwords: FAMILY LAW – Property – de facto – modest property pool – adjustment for contributions when the Respondent was incarcerated – adjustments for future needs of primary carer. |
| Legislation: Family Law Act 1975, ss.90SM, 90SF |
| Cases cited: Stanford v Standford [2012] HCA 52 In the Marriage of Hickey [2003] FamCA 395 |
| Applicant: | MS TOMES |
| Respondent: | MR TOMES |
| File Number: | DGC 2503 of 2015 |
| Judgment of: | Judge Williams |
| Hearing dates: | 10 April – 13 April 2017 & 1 August 2017 & 13 - 14 September 2017 |
| Date of Last Submission: | 24 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 15 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Sevdalis |
| Solicitors for the Applicant: | Victoria Legal Aid |
| The Respondent: | Appearing in person |
ORDERS
Mr J be added as a Second Respondent to the proceedings.
Within 90 days of the date of these orders (“the date”):
(a)the second respondent do all such acts and things and sign all such documents as may be required to transfer to the applicant, at her expense, all his right, title and interest in the real property situate at Property A, more particularly described in Certificate of Title Volume (omitted) Folio (omitted) (“the real property”);
(b)The applicant:
(i)discharge the mortgage to (omitted) (“the mortgage”), encumbering the property, registered number (omitted);
(ii)pay to the first respondent the sum of $75,036 (“the payment”).
Contemporaneously with the payment the first respondent:
(a)pay to Victoria Legal Aid (“VLA”) the amount due to VLA for his family law proceedings (approximately $4724);
(b)at his expense, provide a withdrawal of caveat executed by VLA for his criminal proceedings costs;
(c)at his expense, provide a withdrawal of any other caveat securing the legal fees incurred solely by the first respondent other than caveats referrable to his criminal proceedings
The applicant be liable for and indemnify the first respondent for all monies due to VLA pursuant to:
(i)Caveat encumbering the real property, arising from the first respondent’s criminal Law proceedings
(ii)Caveat encumbering the real property, arising from the applicant’s family law proceedings
That in the event that the whole of the payment has not been made by the date, then the applicant forthwith sign all documents and do all things necessary to sell sale the real property altogether out of Court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:
(a)first to pay all costs, commissions and expenses of the sale;
(b)secondly to discharge the mortgage and any other encumbrance affecting the real property;
(c)thirdly so much of the payment as is then outstanding ( less any sum to be paid to VLA relating to the first respondent’s family law costs liability to VLA) together with interest thereon at the rate presented by the Family Law Rules adjusted monthly from the date to the first respondent;
(d)fourthly the balance to the applicant;
That pending the payment or completion of the sale:
(a)The applicant have the sole right to occupy the real property and during such right of occupation the applicant pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due;
(b)The parties hold their respective interests in the real property upon trust pursuant to these orders; and
(c)Neither party encumber the real property without the consent in writing of the other party.
In the event that either party refuses or neglects to sign any document or give any necessary authority or consent or do any act or thing necessary to give effect to these orders within 7 days of being requested to so do then the Registrar of the Federal Circuit Court of Australia at Melbourne is appointed pursuant to s.106A of the Family Law Act 1975 to execute all such documents in the name of the party in default and to do all things necessary to give validity and operation to these orders.
That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the real property being deemed to be in the possession of the applicant).
(b)Insurance policies remain the sole property of the owner named thereon.
(c)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
(d)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
IT IS NOTED that publication of this judgment under the pseudonym Tomes & Tomes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
‘
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC 2503 of 2015
| MS TOMES |
Applicant
And
| MR TOMES |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
This is an application for property adjustment pursuant to s.90 SM of the Family Law Act1975 (“the Act”).
BACKGROUND
Relationship History
The applicant is aged 47. The respondent is aged 44.
The parties married in an (religion omitted) ceremony in (country omitted) on (omitted) 1998. The Respondent disputed the validity of the marriage and sought to have the matter determined as a de facto relationship. The Applicant did not oppose this course of action. The parties finally separated in September 2014. The total period of cohabitation is almost 17 years.
There are five children of the relationship namely:
V born (omitted) 2001;
W born (omitted) 2004;
X born (omitted) 2005;
Y born (omitted) 2007;
Z born (omitted) 2010.
The oldest child lives with her paternal grandparents, where it is anticipated that she will remain until she completes her secondary school. The four younger children live with their mother. Final parenting orders were made by consent by the parties on 6 October 2016, which provide for the children to spend time with their father by agreement between their parents. The Respondent has not spent time with the children since the orders were made.
The Applicant is primarily engaged in home duties and receives a sole parent pension and family tax benefit. She occasionally earns income from casual (omitted) work. In her financial statement sworn 29 February 2016, she deposes to a weekly income of $590.25.
The Applicant is currently studying to be a (occupation omitted) and will complete her study at the end of 2017. She holds a (qualifications omitted). She last worked in the field of (employment omitted) in 1996.
The Respondent is a student/carer and at the commencement of the trial received a newstart/abstudy allowance. In his financial statement the 20 April 2016, he deposes to a weekly income of $288. His final submissions dated 17 October 2017 state that he is now entitled to receive a disability pension.
The Applicant alleges that the Respondent has a demonstrated the earning capacity, which he chooses not to exercise. In the past, he has worked as a (occupations omitted).
The main asset of the parties is the former matrimonial home, situated at Property A. The registered proprietors of the property are the Applicant and a family friend Mr J. I refer to the ownership of the property in detail at paragraphs 13 -23 hereof.
The parties married in an (religion omitted) ceremony in (country omitted) in (omitted) 1998. For the current proceedings, the Respondent refutes that the parties were ever validly married.
In 2001, following the birth of their first child, the parties travelled to (country omitted). The Applicant and their child returned to Australia, shortly thereafter. The Respondent remained in (country omitted) for approximately 2 years, prior to his return to Australia in 2003. The parties have remained residing in Australia since that time.
Preliminary issue
In (omitted) 2004 the parties entered into a contract of sale to purchase the former matrimonial home. The purchase price was $250,000. A modest deposit of $10,000 was paid from the parties joint resources . In order to fund the purchase of the property, the parties obtained a loan of $230,000 from (omitted).
In (omitted) 2004, on the day prior to settlement, the Respondent was arrested on (omitted) charges and incarcerated. (omitted) refused to continue with the financing of the purchase of the property. The Applicant secured a settlement extension of two months.
In (omitted) 2005, the Applicant obtained a further offer of finance from (omitted) finance, subject to payment of a greater initial deposit and securing a co-borrower with an income. A family friend, Mr J was prepared to assist the family and agreed to become a co-registered proprietor of the property and a co-mortgagor.
Both parties and Mr J, assert that Mr J has no interest in the property and has not made any financial contribution towards the property.
Annexure E to the Respondent’s affidavit sworn 20 April 2016 is a statutory declaration of Mr J dated 31 January 2008, whereby he sets out the circumstances giving rise to the transaction and a purported explanation why the property was not transferred to the Respondent upon the conclusion of his criminal proceedings.
On 7 April 2017, the Applicant filed an affidavit of Mr J sworn 29 March 2017. Paragraph 3 of that affidavit refers to the circumstances of Mr J being a co-registered proprietor of the property. Paragraph 4 refers to Mr J’s lack of financial contribution towards the purchase price and mortgage payments. The final sentence of paragraph 4 states as follows:
“I do not hold any financial or equitable interest in the property”.
I was advised that Mr J is a (occupation omitted) and was on assignment in (country omitted) at the time the matter was listed for trial.
I requested the parties to arrange for Mr J to be telephoned so that I could:
i)Confirm that he had no objection to the trial proceeding without his involvement;
ii)Advise him that he would be joined as a party to the proceedings to enable orders to be made in relation to the former matrimonial home.
Mr J was contacted by phone and stated that he was agreeable for the matter to proceed without his involvement and for orders to be made which required him to transfer his interest in the property.
Mr J did not give sworn evidence. There was no prior application for him to give evidence by electronic communication from (country omitted). No enquiries had been made by either party to determine:
a)The attitude of the foreign country’s government to the taking of evidence by electronic communication;
b)Whether permission was required from the foreign country’s government to adduce evidence from a witness in that country by electronic communication.
Initially, the Respondent wanted to cross-examine Mr J, however it was apparent that both parties and Mr J agreed that Mr J did not have any interest in the property.
Adjournment of trial
On 12 August 2017, the 3rd day of the trial, immediately after the lunch break, counsel for the Applicant made an application to speak to her client, notwithstanding that cross-examination had not been concluded. She advised that her client was in significant distress and in her professional view was unable to provide cogent instructions to enable the trial to continue. With the consent of the Respondent, leave was granted to enable counsel for the Applicant to discuss her concerns with her client, subject to her undertaking not to discuss the Applicant’s evidence with her.
Counsel for the Applicant is an experienced member of the Victorian Bar and I had no hesitation accepting her undertaking.
There was some discussion as to whether the Applicant would be in a position to recommence the trial the following morning, however, I was advised that the Applicant required the assistance of her long-term treating psychiatrist, Dr F.
The Respondent confirmed that both he and the Applicant had been in receipt of long-term psychiatric care, from 2003/2004 and that Dr F had treated the Applicant since then.
The Respondent submitted that he would be prejudiced/disadvantaged by an adjournment as he was homeless and wanted the proceedings to continue and be concluded as expeditiously as possible. I appreciate the Respondent’s situation, however the reality is that I was not prepared to force a litigant with long-term mental health problems to proceed with a trial, when experienced and competent counsel advise me that she was unable to continue on that day and provide instructions.
The matter was then adjourned to 1 August 2017.
RELEVANT LEGISLATION
Property proceedings between parties to a de facto relationship are governed by the provisions of s.90SM of the Family Law Act1975.
Section 90SM (1) of the Act provides after the breakdown of a de-facto relationship the court may make such orders as it considers appropriate altering the interests of the parties in the property.
Section 90SM (3) provides as follows:
(3) The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
If the Court is satisfied that it is just and equitable to make an order altering the interests of the parties in property, s.90SM (4) of the Act sets out the matters which the court must take into account when considering what order (if any) should be made.
Section 90SM(4) provides as follows:
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(c) the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and
(e) the matters referred to in subsection 90SF(3) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.
Prior to the decision of the High Court in Stanford v Standford [2012] HCA 52 the preferred approach to determine property matters was set out by the Full Court in the matter of In the Marriage of Hickey [2003]FamCA 395.
The approach, as set out in Hickey (supra) may be summarised as follows. Firstly, the court should make findings as to the identity and value of the property pool. Secondly, the court should determine the contributions of the parties both direct and indirect, including financial and non-financial contributions and then determine the contribution based entitlements of each of the parties; as a percentage of the value of the property of the parties. Thirdly, the court should determine whether any further adjustment should be made to the contribution based entitlements of the parties, after giving consideration to the relevant matters referred to in s.75(2) of the Act. Fourthly the court should consider the effect of those findings and decide what order for division of property is just and equitable.
In Stanford (supra) the High Court noted that s.79 (1) enables the court to make such orders as it considers appropriate. However, prior to making any orders for the adjustment of parties’ interests in property, the court must first determine whether it is just and equitable to make any property orders, or to alter the parties interests in property.
The equivalent legislative provisions for defacto relationships are as follows:
i)Section79(1) – Section 90SM(1);
ii)Section 79(2) – Section 90SM(3);
iii)Section 75(2) - Section 90SF(3);
The High Court stated in Stanford at [37]:
[37] First, it is necessary to begin consideration of whether it is just and equitable to make property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property……. The question posed by S79 (2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.”
The High Court further stated at [42] that in most cases:
[42] In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s.79(4).
In summary, in the majority of matters the decision as to whether or not it is just and equitable for the Court to make property orders is resolved by the breakdown of the marital relationship and the mutual applications of the parties to the court for orders altering their respective property interests.
In this matter the parties have separated and both parties have made an application to the court seeking orders altering their respective property interests. It is clearly just and equitable to adjust property matters between the parties.
Having satisfied myself that it is just and equitable to make an order altering the interests of the parties in the property, the approach and considerations I must make are as follows:
(a)Attribute value to the assets comprising the property pool;
(b)Identify and give weight to the various contributions of each of the parties as set out in s.90SM (4) (a) – (c) and make an assessment as to the entitlements of the parties based on their respective contribution;
(c)Identify the identify the relevant considerations as set out in s.90SM(4)(d)-(g), including the matters set out in s.90SF(3) so far as they are relevant, and then decide whether any further adjustment is appropriate;
(d)Consider whether the proposed orders are equitable.
PROPOSALS
Applicant
The applicant seeks a division of the asset pool so that:
a)She receives 75% of the non-superannuation assets and the respondent receives 25%, subject to (b);
b)The Respondent be responsible for the debt to Victoria Legal Aid of approximately $50,000, arising from his criminal legal fees and secured by a caveat against the former matrimonial home;
c)Each party retain their respective superannuation entitlements.
Respondent
The respondent initially sought a division of the asset pool so that:
a)Both parties receive 50% of the non-superannuation assets;
b)Each party retain their respective superannuation entitlements.
The respondent did not provide a minute of orders sought by him.
However, in his final submissions the respondent seeks:
“I get my house back and the applicant keeps her overseas property and bank accounts, considering they are full of money, I earned over the years.”
ISSUES IN DISPUTE AT THE HEARING
The following issues were in dispute:
a)The initial contributions of each of the parties;
b)The extent of and weight to be accorded to each of the parties contributions during the relationship;
c)Whether there should be any adjustment in favour of either party for future needs factors.
EVIDENCE OF THE PARTIES
Applicant
The applicant relied on the following documents:
a)Amended Initiating Application filed 29 February 2016;
b)Financial Statement filed 29 February 2016;
c)Affidavits of the applicant sworn 10 March 2017, 29, June 2016 the, 29 February 2016;
d)Affidavit of Mr J affirmed 29 March 2017;
e)Outline of Case filed 7 April 2017.
The applicant gave evidence and was cross-examined. In general she gave evidence in a straightforward manner and was prepared to make concessions when appropriate.
During cross-examination, the respondent alleged that the applicant had committed Centrelink fraud in that she had failed to disclose to Centrelink:
a)Her joint ownership of the former family home;
b)Her actual income;
c)The living circumstances of their eldest daughter, whom the Respondent alleged had left the Applicant’s care in early 2016.
The Respondent also cross-examined the Applicant about alleged use of various aliases, which he asserted undermined her credibility and truthfulness.
The evidence the Respondent relied upon to support his allegation in relation to Centrelink was as follows:
a)Annexure D (page 28) to the respondent’s affidavit sworn 27 March 2017, which is a Centrelink statement of the Applicant, which does not include as an asset, the Applicant’s interest in the family home. When queried by me whether such forms required the disclosure of Centrelink recipients interest in the family homes, or whether such an asset was exempt from assessment of eligibility for a pension, the respondent was unable to provide an answer.
b)Facebook pages of the boarder at the former matrimonial home. Some of which were produced and some of which were not. These allegedly demonstrate that the boarder is earning an income conducting a (omitted) business from the premises, and that the applicant is somehow entitled to the income and proceeds of this alleged business. The applicant’s evidence was that, to the best of her knowledge, the boarder had conducted (business omitted) at the premises, and had netted approximately $50 from both (businesses omitted). Apart from that, she denied any knowledge of the business activities of the boarder.
c)Annexure D (page 25) to the Respondent’s affidavit sworn 27 March 2017, which is a Centrelink statement dated 17 April 2016, which states that the oldest child, V, was living 86% in the applicant’s care. It was put to the applicant that the child was in fact living with her paternal grandparents at that time, and that was a false statement. The applicant’s evidence was that the child had spent time in each household and she had remained hopeful that she would return to her care, although she now realised this was unlikely. She also stated that if she had made a mistake, Centrelink would rectify the mistake and presumably adjust her benefits accordingly.
The evidence the respondent relied upon as to use of an alias was as follows:
a)The spelling of the applicant’s first name on the certificate of title, Ms Tomes, whereas the usual spelling of her name is Ms Tomes. The applicant’s evidence was that she did not know that there was any variation of her name on the document. I accept that evidence.
b)The spelling of the applicant’s first name on an (omitted) superannuation document dated 24 May 2016. That document is exhibit R7. The applicant’s name is spelt “(omitted).” The respondent alleged that was a deliberate attempt to mislead, particularly in circumstances where she had failed to disclose in her initial financial statement that she had superannuation entitlements of approximately $1200. The applicant’s evidence was that there was no misspelling of her name, and in fact the letter in dispute “(omitted)”, was not a lowercase “(omitted)” but an uppercase “(omitted)”, without a space, which was consistent with her name, Ms Tomes. I accept the applicant’s evidence about this issue.
The applicant’s response to the allegations of Centrelink fraud was that she had been investigated by Centrelink on two occasions, both of which had been instigated by the respondent and that she had been exonerated and was continuing to receive benefits.
On 1 August 2017, the respondent called for the applicant to produce all correspondence she had received from Centrelink relating to an investigation of her entitlements to Centrelink benefits. He also called for her to produce documentary evidence of the sale of a caravan, and a USB stick which he had provided to her to enable her to copy family photographs from her computer. The respondent’s evidence in relation to the USB stick was that the stick was empty and that she had been unable to copy family photographs of the children as she did not have the laptop which contained the photographs, and indeed that was in the respondent’s possession.
On 13 September 2017, in response to the respondents call, the applicant produced a letter from Centrelink dated 25 November 2016, which is exhibit R 5, which clearly refers to Centrelink’s findings in relation to her entitlement to Centrelink benefits. I accept that letter as evidence of the Applicant’s Centrelink entitlements.
Respondent
The Respondent relied upon the following documents:
i)Response filed 23 December 2015;
ii)Financial Statement filed 2 May 2016;
iii)Affidavits of the Respondent filed 20 April 2016, 27 March 2017, 28 March 2017 and 9 June 2016;
iv)Affidavit of the Respondent sworn 15 October 2015, paragraphs 6 – 14 (pages 3 – four), paragraphs 25 – 36 (pages 6 – seven) paragraph 42.2.6 ( page 19 ) paragraphs 42.6.21 – 42.6.26 (pages 25 – 26) paragraph 1.12 (page 35) , annexure A 36, A 40 and A 41;
v)Affidavit of Dr P sworn 9 February 2016.
The Respondent gave evidence and was cross-examined. He gave evidence in a highly emotional fashion and tended to evade direct answers to questions and attempted to justify and substantiate his past actions. He attempted to exaggerate the extent of his contributions during the relationship. He did not seem to appreciate the extent to which the Applicant was and still is required to care for the children during his absences, which included financial provision for the children.
THE ASSETS AND LIABILITIES OF THE PARTIES
The assets and liabilities as proposed by the applicant were as follows:
No. Asset Valuation 1. Property A $ 550,000 2. Motor vehicle (Applicant) $6,000 3. Motor Vehicle (Respondent) $4,700 Superannuation 5. Applicant $1,193 6. Respondent $7,149 Sub Total $569,042 Liabilities 7. Mortgage on Property A property $130,336 8. VLA Caveat for outstanding legal fees from the Respondent’s criminal proceedings $50,000 9. VLA Caveat Applicant’s family law fees $18,826 10 VLA Caveat Respondent’s family law fees $4724 Sub –total $203,886 Nett Assets $365,156
The additional assets the Respondent sought to include in the pool were as follows:
No. Asset Valuation 11. Household items and industrial kitchen at the former family home $50,000
The table of assets and liabilities in the respondents outline of case document lists as an asset the following:
Asset
Ownership
Liability (sic)
Household items, including industrial kitchen used in the running of (businesses omitted)
Ms Tomes and
Mr Tomes
$50,000 (E)
There was no inventory of the household items, nor any independent valuation. The valuation of the former matrimonial home, which is annexure 1 to the affidavit of Mr J sworn 11 August 2017, refers to the existence of a commercial kitchen at the former family home. The commercial kitchen is referred to in the list of ancillary improvements and under the heading “Market Considerations”.
The valuer is of the opinion that the built-in patio and steel deck shared with commercial kitchen does not add to the value of the property.
The applicant was cross-examined by the respondent about the commercial kitchen, however it was in the context of the applicant deriving an income from use of the facility. The cross-examination was not directed towards the value of the commercial kitchen. I refer to the applicant’s evidence in this regard in these reasons.
In the absence of evidence of what comprises the household items and independent valuations, I do not propose to include this as an asset of the parties.
There are three additional issues relevant to the asset pool. These are the liability to Victoria Legal Aid arising from the husband’s criminal proceedings, the drawdown on the mortgage between July and September 2014 and the respondent’s accessing of his superannuation entitlements. I will address each issue.
Respondent’s Liability to VLA for legal fees
As referred to in these reasons, in November 2004 the respondent was arrested on (omitted) charges and incarcerated. Subsequent to his arrest and initial incarceration, he faced multiple trials in the Supreme Court, this court, and an appeal to the High Court.
The relationship between the applicant and the respondent continued throughout the respondent’s incarceration, conviction and criminal proceedings. The applicant did not dispute that she continued to support the respondent during the criminal proceedings. Indeed, subsequent to the proceedings the parties had three more children, who were born in (omitted) 2005, (omitted) 2007 and (omitted) 2010.
There was no evidence to suggest that the applicant was anything other than supportive of the respondent receiving legal representation. As the applicant and Mr J are the registered proprietors of the former family home, her consent must have been obtained to enable Victoria Legal Aid, to encumber the property with a caveat securing legal costs.
In her final submissions the applicant seeks that the respondent indemnify her in relation to his criminal law/defence proceedings in the amount of approximately $50,000 and for his family law costs of approximately $4724.
The applicant did not adduce any evidence why the respondent should be solely responsible for the liability to Victoria Legal Aid arising from the criminal law proceedings. Neither was he cross-examined about this proposition. I do not propose to make an order that the respondent be solely liable for this liability.
I do however consider it appropriate that each party be responsible for their respective debt to Victoria Legal Aid arising from costs incurred in family law proceedings.
Drawdown of mortgage
Shortly prior to separation, the parties drew down $31,999 on the mortgage encumbering the Property A property. The particulars are as follows:
i)21 July 2014 – $2999;
ii)25 August 2014 – $20,000;
iii)1 September 2014 $9000.
The applicant initially asserted that the respondent had applied the $9000 for his own purposes and had not accounted to her for the expenditure. She later conceded that this amount was applied towards the purchase of a motor vehicle which she currently has in her possession.
The respondent asserts that the balance of the drawdown was applied towards joint liabilities of the parties. The applicant’s position appears to be that she agrees that some of the funds were applied towards liabilities, although she does not know the particulars, and that an amount of approximately $ 6,000 was paid to a woman in (country omitted), whom she alleges is the respondent’s wife.
I prefer the evidence of the applicant and intend to take into account, pursuant to s.93(F)(3)(r), the use of funds by the respondent.
Respondent’s superannuation
Under cross-examination the respondent said that he had cashed in his superannuation entitlements with (omitted). This occurred in two drawdowns. The first drawdown of $10,000 occurred in December 2015 and was subject to tax. The second drawdown in February 2016 was for $6282.53. Of this amount. The Applicant received $1129 and a further amount of $300 for child-support arrears.
The respondent asserted that he has been unemployed and homeless since December 2015 and that these funds were required to provide for his financial support. His evidence was that he had previously been employed as a (occupation omitted), however, a Vicroads demerit notice was forwarded to the Applicant’s address, and he was not aware that he had reached his maximum demerit points and accordingly lost his licence. That impacted on his capacity to both obtain employment as a (occupation omitted), and secondly to secure accommodation. He holds the Applicant responsible for his present predicament.
I find that as the respondent has been unemployed since December 2015, it is reasonable that he applied the funds obtained from his superannuation entitlements for his living expenses. I do not intend to add back these amounts to the asset pool.
As a result of the findings set out herein, the net available asset pool for distribution between the parties is as follows:
No. Asset Valuation 1. Property A $ 550,000 2. Motor vehicle (Applicant) $6,000 3. Motor Vehicle (Respondent) $4,700 Sub – total $560,700 Superannuation 5. Applicant $1193 6. Respondent $7149 7 Sub total $569,042 Liabilities 7. Mortgage on Property A property $130,336 8. VLA Caveat for outstanding legal fees from the Respondent’s criminal proceedings $50,000 VLA Caveat Applicant’s family law fees $18,826 VLA Caveat Respondent’s family law fees $4724 Sub –total $203,886 9. Nett Assets $365,156
CONTRIBUTIONS
Initial contributions
The parties have divergent views about their respective assets at the commencement of the relationship.
The applicant’s evidence is that neither party had significant assets at the commencement of cohabitation. She asserts that she had gold jewellery which she later sold in 2004 for approximately $8000 to facilitate the purchase of the former family home.
She asserts that the respondent had minimal savings and the proceeds of sale of some family antiques, which were sold to enable him to finance his travel to (country omitted) where the parties met.
The respondent’s evidence is that he owned approximately $70,000 worth of antiques and household goods at the commencement of the relationship. In addition, he owned a Toyota (omitted) motor vehicle, which he valued at $3000 and had savings of $5000.
Neither party produced any documentary evidence to support his/her claims, nor any evidence about the basis of purported valuations of possessions.
During cross-examination the respondent conceded that his possessions had been progressively sold to fund travel and living expenses of the parties. He was unable to quantify the amount .
The evidence of both parties as to their initial contributions was vague and non-specific.
Contributions during the relationship
There was much cross-examination of the applicant by the respondent as to :
a)The extent of his financial contributions during the relationship;
b)The applicants alleged transfer of monies from the respondent’s (omitted) Bank account;
There was also extensive cross-examination of the respondent by the applicant’s counsel about his periods of his absence from the family, incarceration and inability to work, due to both his mental health and his many and varied criminal proceedings.
Section 90SM(4) (a) financial contributions
Respondent’s earnings during the relationship
The Respondent referred the applicant to a chart of his alleged earnings from 2003 to 2014, which was annexure H to his affidavit sworn 20 April 2016. (“Annexure H”). That document was headed “Employment Timeline 2003 to 2014”.
The Respondent tendered a bundle of bank statements from 25 July 2003 to 20 January 2014, in relation to his (omitted) bank account number 5950 (Exhibit R1). These statements were highlighted by the respondent to indicate receipt of his wages and new start allowance. The statements were also marked to show cash withdrawals from ATMs and Internet transfers, which he alleged, had been made by the applicant.
There was no cross-examination or evidence about the respondent’s earnings between January 1998 and 2003.
Annexure H purportedly provides a summary of the respondent’s employment, his work place, and yearly or weekly wages, from June 2003 to January 2014.
In order to expedite the cross-examination, it was agreed by all parties that the applicant would be given an opportunity to study the Employment Timeline and the respondent’s (omitted) bank statements (which are exhibit R12) from 25 July 2003 to 20 January 2014. She would then be asked to comment on the alleged amounts claimed.
The claims of the respondent and the applicant may be summarised as follows:
Year
Respondent’s claimed amount
Applicant’s response
2003
$29,640
$29,640
2004
JanuaryJuly
September
$50,000 from (employer omitted)
(employer omitted) $17.50 weekly
(employer omitted) - $18,200
Disagrees with the amount claimed, no evidence of regular weekly payments of $960, agrees cash deposits of $9,940
agrees $469 for distribution of papers over a two month period
$1,473
2005
casual (omitted) work
$30,000disagrees with the amount claimed deposit for this period total $2056, 2006
October
(employer omitted) $30,000
New start payment $2049.87
No evidence of deposits between January – September 2006 other than cash and cheque of $2000
Accepts new start payment of $2049.87
2007
August
New start payment $15,600
(employer omitted) – $10,000
Did not calculate the total but accepts $15,600
August – October 2007 (employer omitted) $5280
2008
(employer omitted) $41,678 Accepts he worked for a (employer omitted) but less than $40,000 for 2008 and 2009
2009
October
(employer omitted) $32,000
New start $2924
Accepts $40,000 was earned during 2008 and 2009
accepts $29242010
December
New start $ 17,356
(employer omitted) (occupation omitted))
Accepts new start of the $17,356
no evidence of payment from (employer omitted)2011
FebruaryJuly
(employer omitted)
$22,452New start $7439
Accepts $22,452 for a five month period
accepts new start of $7439, although she did not specifically calculated
2012 Sub contract (employment omitted) $58,222 The respondent did not continue the calculations past 2011
The Applicant accepted that the respondent’s work was at times sporadic and interspersed with receipt of a new start allowance. She did not accept the quantum claimed by the respondent; however, she conceded that at times it might have been difficult for him to work full-time.
The Respondent agreed with the Applicant’s calculations, on many occasions and did not initially press his alleged earnings as set out in the employment timeline. However, when the trial resumed on 12 and 13 September 2017, the respondent was far less inclined to concede the inaccuracies in his timeline of employment.
I prefer the evidence of the applicant in this regard. She quite rightly acknowledged that the respondent had engaged in employment to the extent he was able, due to the constraints of dealing with multiple criminal proceedings, his absences from the family and his mental health issues.
The Respondent appeared to be under the misapprehension that the assessment of contributions was a strictly arithmetical exercise.
Applicant’s transfers from the Respondent's (omitted) Bank Account
On 28 March 2017 respondent filed an affidavit annexing a report from (omitted) Bank, detailing customer transactions on his account with the (omitted) Bank, account number (omitted) from 24 March 2010 to 30 January 2014.
Paragraph 3 of the affidavits states :
“This report demonstrates the significant amount of my wages, the applicant transferred into accounts under her control.”
Both parties agreed that the respondent’s income was deposited into this account and that the applicant had made the withdrawals from that account, which was the subject of the report from (omitted) Bank.
During cross-examination the respondent inferred that the applicant had applied these funds for purposes other than support of the household. He referred to the many and varied accounts into which the funds were transferred.
The applicant’s evidence was that the transfers were primarily to two credit cards, which she used to meet the families living expenses. These were a (omitted) credit card with the prefix (omitted) and a (omitted) Credit Card with the prefix (omitted). She was the primary cardholder on each account and the respondent was a secondary cardholder.
The explanation for the many varied account numbers was that new cards had been successively issued by the bank, for each credit card, when the previous card expired, or in some cases when the card had been misplaced by her.
Both credit cards were used to purchase groceries, pay for utilities for the family and to pay fuel for the Respondent when he was (employment omitted) to earn income. Expenses incurred by the Respondent whilst (employment omitted), including coffee and food were paid for using either of the two cards.
In addition to the transfers to the credit cards, there were a number of transactions to an account numbered (omitted). The Applicant’s evidence was that this account was the mortgage secured against the family home, and she occasionally made transfers to the mortgage from the Respondent’s bank account.
The Respondent queried a couple of other discrete transfers which are referred to in the annexure. They were as follows:
a)25 July 2011 – $300 transferred to (omitted), which the Applicant said was applied towards the purchase of industrial kitchen equipment;
b)18 November 2013 $1171 transferred to (omitted), which the Applicant said was used to purchase their tickets for herself and the three youngest children to travel to (country omitted).
The Applicant’s evidence was that the Respondent was aware of her access to the accounts and that all transfers were done with his knowledge and consent.
The Respondent cross-examined the Applicant about a series of transfers from his (omitted) Bank account number (omitted). The statements of the respondent’s bank account from 25 July 2003 to 30 January 2014 are exhibit R12.
In particular, the respondent alleged that there were numerous transactions for unusual amounts such as $201, $301 and $401. The majority of examples of such withdrawals put to the applicant occurred in 2008 and 2009. The respondent attempted to challenge the narrative in the bank statements, which stated that the payments were to various credit cards, utilities and other family expenses. The applicant’s evidence was that it was her practice to round up amounts to the nearest dollar and that is reflected in the bank statements. The respondent asserts that some or all of these amounts may have been transferred into bank accounts in the control of the applicant or indeed transferred overseas. He was unable to provide any evidence of transfer of these funds overseas.
Despite the respondent’s best endeavours to insinuate that the applicant had somehow made unauthorised transactions on his account without his knowledge, I accept the evidence of the applicant and consider it to be inherently plausible.
Applicant’s raising of $20,000 to enable settlement of the former family home
The respondent cross-examined the applicant about her evidence that in January 2005 she raised an additional $20,000 to enable the parties to complete the purchase of the former family home. The respondent did not appear to dispute the applicant’s evidence that the initial offer of finance was withdrawn by (omitted), when he was arrested for (omitted) offences on the day prior to the scheduled settlement.
He did not dispute that the applicant obtained alternative finance from (omitted) finance, subject to her increasing the initial deposit by $20,000. He did, however, cross-examine her about the source of this money, including expressing some scepticism that she was able to sell jewellery for $8000.
However, it was common ground that at the time the applicant raised the additional $20,000 to enable the purchase of the property; the respondent was incarcerated. The respondent claimed that the bulk of the $20,000 was raised by the (country omitted) community during the course of fundraising to meet his legal expenses. Additional amounts were raised to pay his legal fees and some of the funds raised were applied, to enable the purchase of the property to settle.
The respondent’s evidence was that the only direct financial contribution made by the applicant towards the purchase of the family home, was the first home owners grant of $12,000. He would not concede any other lump sum financial contributions.
During the relationship household accounts were paid from the respondent’s bank accounts, which included deposits of his income. The applicant worked during the relationship, and her evidence was that her earnings were also applied towards the benefit of the family.
The Applicant claimed that she was the primary income earner between 2004 and 2008. She did not provide any documentary evidence to support this assertion.
Given the constraints of the family are five children, and limited income flowing into the family. I find that each party obtained employment when they were able to do so. They contributed those funds for the benefit of the family.
Respondent’s absence from the family, incarceration and criminal proceedings
In March 2001 the parties and their infant daughter, V travelled to (country omitted). The Applicant and V left (country omitted), in (omitted) 2001, according to the applicant, and according to the Respondent, in (omitted) 2001. They returned to Australia via (country omitted).
The respondent remained in (country omitted) until his return to Australia in (omitted) 2003. He was unable to leave (country omitted), as he had obtained a visa from the (country omitted) in 2001, to enter the country. The applicant had not obtained a visa from the (country omitted) to enter (country omitted) and was able to leave. The applicant cared for the child without any assistance from the respondent between either June 2001 or September 2001, until June 2003.
The parties’ second child, W was born on (omitted) 2004. On (omitted) 2004 the respondent was arrested in Australia and charged with (omitted) offences. He was incarcerated until he was bailed on (omitted) 2005. The applicant cared for V and W whilst the respondent was incarcerated.
The respondent was tried on three charges in the Supreme Court, commencing on (omitted) 2006 and was convicted of two charges. He successfully appealed the conviction in (omitted) 2006.
In (omitted) 2006 the respondent was the subject of a control order application, which he later challenged in the High Court. The control order was upheld by the High Court in (omitted) 2007.
He was then retried in (omitted) 2008 for (omitted) offences and was convicted of one offence.
Between (omitted) 2004 and 2009, he was incarcerated for a period of (omitted) days. During this period he was obviously devoting considerable energies to defending his criminal proceedings. The respondent’s evidence was that he was employed during the time he was facing criminal charges and worked to the best of his ability. The Applicant agreed with that. However, it is obvious that whilst he was attending court, attending lawyers and incarcerated, the care of the children and the running of the household was the Applicant’s responsibility. She was also solely responsible for the financial support of the children during the Respondents periods of incarceration, although she may have received some financial assistance from relatives.
The respondent deposes to suffering post-traumatic stress disorder (PTSD) during this time. However, that did not preclude him from obtaining employment. His document entitled “Opening Remarks”, at page 12, refers to the fact that he suffered PTSD for a six-month period, and major depression nearly 10 years ago.
Similarly, the respondent asserts that the applicant suffered from mental health problems during the relationship, which precluded her from caring for the children in an appropriate manner, and that he was required to assume substantial care of the children.
Section 90SM (4) (b) and (c) non-financial contributions
Both parties claimed that they provided the majority of care for the children during the relationship.
The respondent claims that at times he has been the primary carer of the children due to the applicant’s mental health and consequent inability to care for the children in particular, the applicant was hospitalised in a psychiatric ward for approximately a month and spent an additional period of a couple of months recuperating with a friend. During this time the respondent’s evidence was that the children were cared for by him and his parents. He is also critical of the applicant’s standard of care of the children.
The applicant claims that she has been the primary carer of the children during the relationship.
The respondent did not seem to fully appreciate that whilst he was absent from the family and incarcerated, the financial and emotional burden of caring for their then two children fell solely with the applicant.
Subsequent to the criminal charges and his incarceration, the respondent claims he suffered stress. The applicant agreed with that contention and her evidence is that as a result of the stress, he was unable to hold down a stable full-time job.
This is reflected in the respondent’s own evidence. There was no evidence about the emotional capacity of the respondent to contribute towards the care of the children, although the applicant alleges that after the birth of the fourth child in 2007, the respondent engaged in family violence towards the applicant.
I find that both parties contributed to the care of the children during the relationship.
Contributions post separation
Subsequent to the party’s separation in September 2014, the four younger children have remained living with the applicant. They had spent nominal time with the respondent, and indeed. Since final parenting orders were made by consent on 6 October 2016, the respondent has only spent time with the children on a few occasions.
The respondent is currently unemployed and has been assessed to pay child support of $34.50 per month. Subsequent to separation, the applicant received $1,429 from the respondent’s superannuation withdrawals, for arrears of child support.
The applicant has therefore been responsible for the majority of the financial support of the children and the continued maintenance of the household, albeit she has had the benefit of living in the family home with the children. I accept the evidence that the oldest daughter has lived with the respondent’s parents and at times with the applicant.
Conclusion as to contributions
As a result of the evidence of the parties and my findings referred to in the preceding paragraphs, I assess the contributions of the applicant at 57.5% and the respondent’s 42.5%.
The Section 90SM(4)(d),(e),(f) and (g) and the Section 90SF(3) factors
Section 90SM(4)(d): the effect of any proposed order upon the earning capacity of either party to the de facto relationship.
The orders which I propose to make will have will not have any affect on the earning capacity of either party.
Section 90SM(4)(e): the matters referred to in subsection 90SF(3) so far as they are relevant.
Section 90SF(3) The matters to be so taken into account are:
(a) the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship );
The applicant is aged 47 and is in receipt of a supporting parents benefit. She works part time casually as a (occupation omitted). There was no evidence that she had any physical health difficulties. It was agreed that she had long-standing mental health issues.
The respondent is aged 44 and is unemployed. He was previously in receipt of Austudy payments and is awaiting the outcome of his application for a disability pension. There was no evidence that he had any physical health difficulties. His evidence is that he has mental health issues, namely post-traumatic stress disorder and depression.
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
The applicant has not filed a financial statement since March 2016. The respondent filed a financial statement in May 2016.
The property of the parties is referred to in these reasons. The respondent alleges that the applicant has property overseas, although no details were provided and she was not cross-examined about this issue.
Both the applicant and the respondent suffer from mental health issues, although there was no expert evidence in relation to the applicant. The respondent emphasised the applicant’s past mental health issues and asserted that this precluded her appropriately caring for the children during the relationship. He did not present any evidence of the effect of the applicant’s mental health on her capacity to obtain employment.
The respondent relied on the affidavit of Dr P filed 9 February 2016. Annexure A to that affidavit is a report dated 17 November 2015 relating to the respondent’s mental health. Dr P was not required for cross-examination.
The respondent first attended upon Dr P in 2005 and was treated for a combination of severe post-traumatic stress disorder and major depression. He continued to see Dr P regularly up to 2009, when his care was transferred to a psychologist, Mr R. As at the date of the report, Dr P was of the opinion that the respondent would continue to suffer low-grade symptoms of post-traumatic stress and periods of lowered mood and anxiety. Despite that he was of the view that he was able to function, “at least in terms of occupational performance”.
The respondent’s evidence was that despite his previous depression and post-traumatic stress, he had been able to engage in full-time employment for significant periods following his return to Australia from (country omitted).
In his final submissions, the respondent disclose that he is now in receipt of a disability support pension.
(c) whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and
The four younger children of the relationship, aged 13, 11,10 and 7 live with the Applicant. The oldest child, aged 16 lives with her paternal grandparents, but continues to have a relationship with her mother. Final parenting orders were made by consent in October 2016, which provide for all children to live with the applicant and for the children to spend time with the respondent as agreed between the parties.
Since separation the Respondent has spent limited time with the children for a few hours on two or three occasions. The responsibility for the care of the four younger children falls primarily with the applicant.
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
The commitments of each of the parties that are necessary to support himself/herself are set out in their respective financial statements.
Neither party was cross-examined about the expenses claimed in the financial statements.
(e) the responsibilities of either party to support any other person; and
The parties are parents of five children under the age of 18. Both parents have an obligation to contribute to the support of the children, although the eldest child, V, is currently living with her paternal grandparents. There was no evidence as to the extent of financial support for V provided by the paternal grandparents.
(f) subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
Since February 2016 the applicant has been in receipt of a supporting parents benefit. She also received one payment of a supporting parents benefit after she made an application in November 2012. She did not persist with this application as the parties remained in a relationship.
The Respondent was previously in receipt of Aus Study payments. However, he has ceased his study. He has applied for a disability pension, and according to his final submissions, his application has now been successful.
(g) a standard of living that in all the circumstances is reasonable; and
The parties separated in September 2014. Since then, the applicant and the children have remained living in the former family home. The applicant has been responsible for payment of the mortgage secured against the property. Since December 2015 the respondent maintains that he has been unemployed and has no fixed address.
The orders which I intend to make for division of property will result in a payment from the applicant to the respondent, which would enable him to re-establish himself by at the very least, renting another property. The respondent will either be in receipt of a disability pension or obtain at least part-time employment, which may increase to full-time employment, depending on his prognosis.
The respondent will have the option of retaining the former family home and increasing the mortgage to pay the respondent a lump sum, or alternatively a sale of the property, which would result in her retaining a lump sum.
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
This is not a relevant consideration.
(i) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
This is not a relevant consideration.
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
This is not a relevant consideration.
(k) the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
The parties were in a relationship from (omitted) 1999, when they underwent an (religion omitted) ceremony in (country omitted), until September 2014, when they separated. The applicant has the care of four children of the relationship, and her capacity to work outside the home, it is obviously limited due to her commitments to care for the children.
The respondent has not spent lengthy or consistent time with the children since the orders of October 2016
(l) the need to protect a party who wishes to continue that party's role as a parent; and
There was no evidence adduced on behalf of the applicant to suggest that she had any intent, other than to remain the primary care giver of the children. It would be preferable if she were able to obtain sufficient funds to make a payment to the Respondent so that she could retain the family home.
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
The applicant is not cohabiting with another person. The respondent’s evidence was that he has a girlfriend who has a disability, which was not specified, and that he is not currently living with her.
(n) the terms of any order made or proposed to be made under section 90SM in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
I am satisfied that the orders I intend to make under s.90SM are sufficient to enable both parties to adequately maintain themselves.
(o) the terms of any order or declaration made, or proposed to be made, under this Part in relation to:
(i) a party to the subject de facto relationship (in relation to another de facto relationship); or
(ii) a person who is a party to another de facto relationship with a party to the subject de facto relationship; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
This is not a relevant consideration.
(p) the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:
(i) the party to the subject de facto relationship; or
(ii) a person who is a party to a marriage with a party to the subject de facto relationship; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
This is not a relevant consideration.
Section 90SF(3)(q) any child support under the Child Support (Assessment) Act1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and
The respondent is currently assessed to pay child support of $34.50 per month for all four children. There have been two occasions in the past, namely December 2016 and February 2017, when the applicant has received lump-sum payments of arrears of child-support. This occurred in the context of the respondent accessing his superannuation entitlements. The child-support is in accordance with the current assessment; however it is manifestly inadequate to contribute to the support of the children in any meaningful manner.
Unless the respondent obtains employment in the future, there is no prospect of him making any adequate financial contribution towards the financial support of the children.
(r) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
All relevant factors have been referred to in these reasons.
(s) the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and
This is not a relevant consideration.
(t) the terms of any financial agreement that is binding on a party to the subject de facto relationship..
This is not a relevant consideration.
Section 90SM(4)(f): any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship
The parties have previously entered into a parenting consent orders, which, in summary provide for the children to live with the applicant and to spend time with the respondent by agreement between the parties.
Section 90SM(4)(g): any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship
This factor is considered at paragraphs 171 and 172 of these reasons.
Is it just and equitable to alter the parties’ property interests
Both parties, in their respective Application and Response have sought orders adjusting their respective interests in property.
As a result of the findings made relating to contributions and future needs, I am satisfied it is just and equitable to make orders adjusting property between the parties.
Adjustment of interests
Taking into consideration the above matters, I am satisfied that there should be an adjustment in favour of the Applicant of 20% pursuant to s.90SF(3) factors. Each party should be responsible for their own legal costs incurred in family law proceedings.
The overall division of assets I have determined is that the Applicant should receive 77.5% of the asset pool and the Respondent should receive 22.5%.
The division will be effected as follows:
Applicant’s Assets Property A $550,000 Motor Vehicle $6,000 Applicant’s superannuation $ 1,193 Sub total $557,193 Less Liabilities Mortgage encumbering Property A $130, 336 VLA Liability secured by Caveat $50,000 VLA Liability secured by Caveat $18,826 Cash payment to Respondent $75,036 Nett Assets $282,995
Respondent’s Assets Payment from Applicant $75,036 Motor vehicle $4,700 Superannuation $7,149 Sub total $86,885 Less liabilities VLA liability secured by Caveat $4,724 Net assets $82,160
On the basis of the property pool I have determined, the applicant will retain the family home, if possible, subject to the mortgage and VLA Caveat for the husband’s criminal proceedings and her liability to Victoria Legal Aid arising from family law proceedings. She will also retain her motor vehicle and superannuation.
The respondent will receive a lump sum payment from the applicant, and will retain his motor vehicle, superannuation and the benefit of funds access from his superannuation entitlements. He will be responsible for his liability to Victoria Legal Aid arising from his family law proceedings.
This result will be achieved by either the applicant increasing the mortgage secured against the Property A property and making a lump sum payment to the respondent, or alternatively a sale of the Property A property and a payment of part of the proceeds of sale to the respondent.
I intend to make orders accordingly.
I certify that the preceding one hundred and eighty five (185) paragraphs are a true copy of the reasons for judgment of Judge Williams
Date: 15 December 2017
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
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Civil Procedure
Legal Concepts
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Remedies
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Costs
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Jurisdiction
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Procedural Fairness
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