Tuckson and Elsey
[2015] FCCA 2713
•13 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TUCKSON & ELSEY | [2015] FCCA 2713 |
| Catchwords: FAMILY LAW – De facto property – declaration that a de facto relationship existed – determination of a relationship in excess of eight years – consideration of contributions of a financial nature at the commencement of and during the relationship – consideration of non-financial contributions by each party – assessment as to any adjustment in respect of percentage distribution as a result of section 90SF(3) factors – consideration as to whether superannuation entitlements including superannuation pension entitlements should be dealt with separate to other assessments – determination to consider superannuation pension entitlements as a separate item for consideration – determination that it was just and equitable to make orders effecting a de facto property settlement. |
| Legislation: Family Law Act 1975 (Cth), ss.4AA, 75(2), 79(2) and (4), 90SF(3), 90SM(4), 90RD Family Law (Superannuation) Regulations |
| Cases cited: Stanford and Stanford Lots of Questions – Very Few Answers, Martin Barfeld QC of the Victorian Bar |
| Applicant: | MS TUCKSON |
| Respondent: | MR ELSEY |
| File Number: | CSC 781 of 2013 |
| Judgment of: | Judge Coker |
| Hearing dates: | 9 – 11 March 2015 |
| Date of Last Submission: | 22 May 2015 |
| Delivered at: | Townsville |
| Delivered on: | 13 October 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Baston |
| Solicitors for the Applicant: | Miller Harris Lawyers |
| Counsel for the Respondent: | Ms Wilson |
| Solicitors for the Respondent: | Wilson Ryan & Grose |
ORDERS
That pursuant to sections 90RD and 4AA of the Family Law Act 1975 (Cth) a de facto relationship existed between the Applicant and the Respondent as and from January 2004 until September 2012.
That the respondent pays to the applicant within 45 days of the date of these orders the sum of $95,591.20.
That orders (3) to (9) (inclusive) are binding on the Trustees of the [omitted] Superannuation Scheme (“the scheme”), of which the respondent is a member.
That, in accordance with section 90MT(1)(b) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the respondent’s interest in the scheme:
(a)The applicant will be entitled to be paid 15% of the splittable payment (which is equivalent to the capital sum of $9,000.27 per annum); and
(b)There will be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders.
That order (4) has effect from the operative time.
The operative time for the purposes of order (4) of these orders is the fourth business day after the day on which the final sealed, signed orders are served on the trustee of the scheme.
That until such time as the superannuation split to the applicant pursuant to these orders can be rolled over into a separate account to the applicant:
(a)The respondent provide to the applicant no less than twenty-eight (28) days’ notice before such time as he elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or in part his entitlement in the scheme;
(b)The respondent direct and authorise the trustee of the scheme to communicate with the applicant and/or any person authorised by her in writing:
(i)To answer any reasonable inquiries as may be made by or on her behalf from time to time in relation to his entitlement in the scheme; and
(ii)To provide to the applicant and/or her authorised representative a copy of any notice of any application or request by the respondent which seeks a release of entitlements in the scheme in so far as that release may affect the applicant’s entitlement in the scheme pursuant to these orders; and
(c)The respondent by himself, his servants and/or agents be and hereby are restrained form doing any act or thing which would prevent the applicant, her heirs, executors, administrators or nominees from receiving the benefits in the scheme to which she is entitled pursuant to these orders.
That, if the superannuation split to the applicant pursuant to these orders can be rolled over into a separate account to the applicant, each of the parties do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.
The trustees of the scheme:
(a)are bound by these orders and must comply with the obligations imposed upon the trustees of eligible superannuation plans under the Family Law Act 1975 and Family Law (Superannuation) Regulations;
(b)consents to these orders insofar as they relate to the splitting of the superannuation interests; and
(c)have been accorded procedural fairness in relation to the making of these orders.
That the applicant retain and/or receive as her absolute property all her right, title and interest to and in the following:
(a)The net proceeds of sale in respect of the property situate at Property A, [A] more particularly described as Lot [omitted] which was sold by the applicant in or around August 2014;
(b)The applicant’s bank accounts;
(c)The applicant’s [omitted] motor vehicle;
(d)The applicant’s personal belongings and other chattels in the possession of the respondent as contained in a storage container located on Property B;
(e)The personal property, furniture, chattels and household effects in the possession of the applicant;
(f)The applicant’s personal belongings and jewellery in the possession of the applicant; and
(g)The applicant’s superannuation entitlements.
That the respondent retain and/or receive as his absolute property and financial resources all his right, title and interest to and in the following:
(a)The following real properties:
(i)Property C, [C], more particularly described as Lot [omitted];
(ii)Property D, [D], more particularly described as Lot [omitted]; and
(iii)Property B, more particularly described as Lot [omitted];:
(b)The respondent’s bank accounts;
(c)The respondent’s 2010 [omitted] motor vehicle, 1995 [omitted] motorcycle and any interest he has in his leased 2012 [omitted] motor vehicle;
(d)The respondent’s plant and equipment located on the Property B;
(e)The personal property, furniture, chattels and household effects in the possession of the respondent, subject to the contrary provisions of these orders;
(f)The respondent’s personal belongings in his possession, subject to any contrary provisions within these orders;
(g)The respondent’s [omitted] in the possession of the applicant; and
(h)The respondent’s superannuation entitlements, subject to order (4)(a) of these orders.
Property D, [D]
That contemporaneously with the payment of monies pursuant to order (2) of these orders the applicant will, at the expense of the respondent, transfer to the respondent all of her right, title and interest in the real property situate at Property D, [D], and the respondent will release and indemnify the applicant with respect to the [omitted] mortgage number [omitted] secured over the subject property.
Personal chattels
That the respondent will forthwith make available for collection the chattels located on Property B described in order (10)(d) of these orders.
General
That, unless otherwise provided for in these orders, the transferee spouse or the spouse receiving the benefit of any transaction pursuant to these orders, will prepare the documentation necessary to give effect to the provisions of these orders at their costs and further be responsible for payment of registration fees and all other fees in relation to the transfer of the property assets to their names.
That unless otherwise provided for in these orders, that any duty payable on transactions arising from these orders, or any documents executed pursuant to these orders, be paid by the transferee spouse or the spouse receiving the benefit of such transfer or transaction.
That the parties do all acts and sign all documents required to implement these orders.
That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all property in the possession of such party as at this date;
(b)each party hereby forgoes any claim they may have to any superannuation benefits belonging to or earned by the other;
(c)all insurance policies to become the sole property of the owner named hereunder;
(d)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.
That the respondent within 45 days of the date of this Order take all necessary steps to effect a transfer to the Applicant of 287,850 Qantas Frequent Flyer points.
Procedural
That if either party refuses or neglects to sign (within 14 days of a written request to do so) any documents necessary to give effect to the terms of these orders the Registrar of the Federal Circuit Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party.
That each party be granted liberty to apply within 28 days in relation to the clarification of any matter arising pursuant to these Orders or in relation to any other application including any application for costs.
IT IS NOTED that publication of this judgment under the pseudonym Tuckson & Elsey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT TOWNSVILLE |
CSC 781 of 2013
| MS TUCKSON |
Applicant
And
| MR ELSEY |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 24 December 2013 Ms Tuckson, whom I shall refer to as the applicant, filed proceedings in this Court seeking a de facto property settlement against Mr Elsey. For convenience, I shall refer to him during these reasons as the respondent. The application related to a relationship which, it was agreed, continued for a period of about nine years between January of 2004 and early 2013.
There was no dispute that a de facto relationship, within the definition of what constitutes such a relationship, existed. In fact, I am not asked to make any specific declaration, it being acknowledged by all that a de facto relationship did exist, during that period.
What is in contest, however, is the issue of any property settlement that might appropriately be effected between the applicant and the respondent. The initial proceedings in relation to the matter, put forward proposals with regard to a property settlement from the perspective of both the applicant and the respondent, however, it was something of a moveable feast, with there being various changes proposed by each of the parties to what they each finally considered would constitute a proper resolution of the issues between them.
THE APPLICATIONS
The final position taken by the applicant was detailed in the amended initiating application filed on 23 April 2014. There the applicant detailed, at some length, the orders that were proposed by her in relation to a final settlement to be effected between she and the respondent. The amended initiating application is in these terms:
1.That the applicant retain and/or receive as her absolute property all her right, title and interest to and in the following
(a)Property situate at Property A, [A] more particularly described as Lot [omitted];
(b)The applicant’s bank accounts;
(c)The applicant’s [omitted] motor vehicle;
(d)The applicant’s personal belongings and other chattels in the possession of the respondent as described in the attached schedule;
(e)The furniture, chattels and household effects in the possession of the applicant at the date of signing of these orders;
(f)The applicant’s personal belongings and jewellery in her possession at the date of signing these orders; and
(g)The applicant’s SunSuper Superannuation Fund.
2.That the respondent retain and/or receive as his absolute property and financial resources all his right, title and interest to and in the following:
(a)Real properties as follows:
(i)Property C, [C], more particularly described as Lot [omitted];
(ii)Property D, [D], more particularly described as Lot [omitted]; and
(iii)Property B more particularly described as Lot [omitted];
(b)The respondent’s bank accounts;
(c)The respondent’s plant and equipment located on the Property B;
(d)That subject to these orders the furniture, chattels and household effects in the possession of the respondent at the date of signing these orders;
(e)That subject to these orders the respondent’s personal belongings in his possession at the date of signing these orders;
(f)Subject to superannuation splitting orders described below the respondent’s [omitted] Superannuation Fund and [omitted] Superannuation Fund;
(g)The respondent’s collect of wine, art and rare fauna; and
(h)The respondent’s share in the company [Elsey] Enterprises Pty Ltd ACN [omitted] and the [Elsey] Family Trust.
Property D, [D]
3.That the applicant will do all such acts, and sign all such documents at the expense of the respondent to transfer to the respondent all of her right, title and interest in the real property situate at Property D, [D] and the respondent will release and indemnify the applicant with respect to any mortgage or other encumbrance secured over the subject property.
Property A
4.That upon the applicant receiving a cash adjustment from the respondent pursuant to the terms of these orders the wife will do all such acts and sign all such documents to release and indemnify the respondent with respect to any mortgage or other encumbrance secured over the property situate at Property A.
Property adjustment orders – Real Property and Superannuation
5.That the respondent pay to the applicant after an adjustment for the net value of assets in her possession not less than 37.5% of the net value of the real property assets to be retained by the respondent such sum being equivalent to a cash payment by the respondent to the applicant of $497,625.00.
6.That orders 6 to 12 (inclusive) are binding on the Trustees of the [omitted] Superannuation Scheme (“the scheme”), of which the respondent is a member.
7.That, in accordance with section 90MT(1)(b) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the respondent’s interest in the scheme:
(a)The applicant will be entitled to be paid 30% of the splittable payment (which is equivalent to the capital sum of $17,453.00 per annum) or such sum as the Court deems appropriate but not less than 20% of the splittable payment (which is equivalent to the capital sum of $11,635.00 per annum); and
(b)There will be a correspondent reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders.
8.That order 7 has effect from the operative time.
9.The operative time for the purposes of order 8 of these orders is the fourth business day after the day on which the final sealed, signed orders are served on the trustee of the scheme.
10.That until such time as the superannuation split to the applicant pursuant to these orders can be rolled over into a separate account to the applicant:
(a)The respondent provide to the applicant no less than twenty-eight (28) days’ notice before such time as he elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or in part his entitlement in the scheme;
(b)The respondent direct and authorise the trustee of the scheme to communicate with the applicant and/or any person authorised by her in writing:
(i)To answer any reasonable inquiries as may be made by or on her behalf from time to time in relation to his entitlement in the scheme; and
(ii)To provide to the applicant and/or her authorised representative a copy of any notice of any application or request by the respondent which seeks a release of entitlements in the scheme in so far as that release may affect the applicant’s entitlement in the scheme pursuant to these orders; and :
(c)The respondent by himself, his servants and/or agents be and hereby are restrained form doing any act or thing which would prevent the applicant, her heirs, executors, administrators or nominees from receiving the benefits in the scheme to which she is entitled pursuant to these orders.
11.That, if the superannuation split to the applicant pursuant to these orders can be rolled over into a separate account to the applicant, each of the parties do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.
12. The trustees of the scheme:
(a)are bound by these orders and must comply with the obligations imposed upon the trustees of eligible superannuation plans under the Family Law Act 1975 and Family Law (Superannuation) Regulations;
(b)consents to these orders insofar as they relate to the splitting of the superannuation interests; and
(c)have been accorded procedural fairness in relation to the making of these orders.
13.That the applicant will further particularise her application for property settlement to affect a cash and/or superannuation splitting order upon completion of discovery and valuation evidence during the conduct of this matter.
The [Elsey] Family Trust
14.That upon the respondent’s production, at his expense, of all documents necessary to effect the transaction, the applicant will:
(a)transfer to the respondent all of her right, title and interest in any debit or credit loan accounts of the [Elsey] Family Trust (“trust”);
(b)sign all such documents and do all such things necessary to renounce her entitlement as a beneficiary (including as a default beneficiary) in the trust; and
(c)is restrained from making any claim or demand upon the trustee, for the time being, of the trust as a discretionary beneficiary or otherwise in relation to any capital or income from the trust to her.
Personal chattels
15. The respondent will forthwith make available for collection from the date of these orders and at the applicant’s expense the chattels described in the attached schedule.
General
16. That, unless otherwise provided for in these orders, the transferee spouse or the spouse receiving the benefit of any transaction pursuant to these orders, will prepare the documentation necessary to give effect to the provisions of these orders at their costs and further be responsible for payment of registration fees and all other fees in relation to the transfer of the property assets to their names.
17. That unless otherwise provided for in these orders, that any duty payable on transactions arising from these orders, or any documents executed pursuant to these orders, be paid by the transferee spouse or the spouse receiving the benefit of such transfer or transaction.
18. That the parties do all acts and sign all documents required to implement these orders.
19. That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all property in the possession of such party as at this date;
(b)each party hereby forgoes any claim they may have to any superannuation benefits belonging to or earned by the other;
(c)all insurance policies to become the sole property of the owner named hereunder;
(d)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.
Spousal maintenance
20.That the respondent pay or cause to be paid to the applicant, by way of spousal maintenance the sum of $1,000.00 per week or such other sum as determined by the court.
Costs
21.That the respondent pay the applicant’s costs of and incidental to these proceedings.
Attachment of Chattels
1. Antique furphy
2. Squatter’s chair (made by Mr T)
3. Lawyer cane day bed
4. Wooden wheelbarrow (made by Mr T)
5. Demijohn’s
6. Lead Light wall mounted coat rack
7. Family photographs
8.Books including little golden books, children’s books and Colorado book
9. Grandfathers enamel kitchen canisters
10. Saddlery:
a. stock saddle
b. double head stall bridle
c. crupper
d. martingale
e. breastplate y shaped
f. monkey strap
g. 2 saddle bags
h. bow line stirrups
i. surcingle
j. padded saddle blanket
11. CDs
12. Over mantle
It should be noted particularly, however, that the final orders proposed by the applicant included, specifically, reference to the applicant retaining her interest in the property situate at Property A, [A]. That property has, however, subsequent to the filing of the amended initiating application, been sold, and it is now contended, perhaps more accurately, that the applicant should simply retain the proceeds of sale received following the transaction.
The respondent filed an amended response to the amended initiating application only two weeks or so after the amended initiating application was filed. Again, it detailed more comprehensively what was proposed by the respondent, in relation to a property settlement to be effected between the parties.
However similar to the situation just referred to, it should be noted that when the matter proceeded to trial, the property at Property A had already been sold, and accordingly, the case outline filed by the respondent detailed comprehensively the orders that were proposed by him and included a specific notation to the effect that the applicant should retain the net proceeds of sale, in respect of the property at Property A, [A]. The orders proposed by the respondent in the case outline filed on 6 March 2015 were in these terms:
1.That the respondent pays to the applicant within 45 days of the date of these orders:
(a)The sum of $100,000;
(b)Less an amount representing 50% of the costs of the parties’ joint valuation and mediation expenses incurred by the respondent in this proceeding;
(c)Plus an entitlement to be paid 4.07% of the splittable payment of the respondent’s interest in the [omitted] Superannuation Scheme (“the scheme”) of which he is a member, which equates to the following:
i.A capital sum of $2,368 annually; or
ii.A capital sum of $92,352 over the course of the applicant’s remaining life of 39 years (which represents 10% of the amount the scheme grew in value over the period 01/01/2004 to 29/09/2012):
2.That the applicant retain and/or receive as her absolute property all her right, title and interest to and in the following:
(a)The net proceeds of sale in respect of the property situate at Property A, [A] more particularly described as [omitted] which was sold by the applicant in or around August 2014;
(b)The applicant’s bank accounts;
(c)The applicant’s [omitted] motor vehicle;
(d)The applicant’s personal belongings and other chattels in the possession of the respondent as contained in a storage container located on Property B;
(e)The personal property, furniture, chattels and household effects in the possession of the applicant;
(f)The applicant’s personal belongings and jewellery in the possession of the applicant; and
(g)The applicant’s superannuation entitlements.
3.That the respondent retain and/or receive as his absolute property and financial resources all his right, title and interest to and in the following:
(a)The following real properties:
(i)Property C, [C], more particularly described as Lot [omitted];
(ii)Property D, [D], more particularly described as Lot [omitted]; and
(iii)Property B, more particularly described as Lot [omitted];:
(b)The respondent’s bank accounts;
(c)The respondent’s 2010 [omitted] motor vehicle, 1995 [omitted] motorcycle and any interest he has in his leased 2012 [omitted] motor vehicle;
(d)The respondent’s plant and equipment located on the Property B;
(e)The personal property, furniture, chattels and household effects in the possession of the respondent, subject to the contrary provisions of these orders;
(f)The respondent’s personal belongings in his possession, subject to any contrary provisions within these orders;
(g)The respondent’s medallion of office in the possession of the applicant; and
(h)The respondent’s superannuation entitlements, subject to paragraph 1 of these orders.
Property D, [D]
4.That contemporaneously with the payment of monies pursuant to paragraph 1 of these orders the applicant will, at the expense of the respondent, transfer to the respondent all of her right, title and interest in the real property situate at Property D, [D], and the respondent will release and indemnify the applicant with respect to the [omitted] mortgage number [omitted] secured over the subject property.
Personal chattels
5.That the respondent will forthwith make available for collection the chattels located on Property B described in paragraph 2 of these orders.
General
6.That, unless otherwise provided for in these orders, the transferee spouse or the spouse receiving the benefit of any transaction pursuant to these orders, will prepare the documentation necessary to give effect to the provisions of these orders at their costs and further be responsible for payment of registration fees and all other fees in relation to the transfer of the property assets to their names.
7.That unless otherwise provided for in these orders, that any duty payable on transactions arising from these orders, or any documents executed pursuant to these orders, be paid by the transferee spouse or the spouse receiving the benefit of such transfer or transaction.
8.That the parties do all acts and sign all documents required to implement these orders.
9.That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all property in the possession of such party as at this date;
(b)each party hereby forgoes any claim they may have to any superannuation benefits belonging to or earned by the other;
(c )all insurance policies to become the sole property of the owner named hereunder;
(d)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.
Costs
10.That the applicant pays the respondent’s costs of and incidental to these proceedings, including any reserved costs.
Procedural
11.That if either party refuses or neglects to sign (within 14 days of a written request to do so) any documents necessary to give effect to the terms of these orders the Registrar of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party.
THE EVIDENCE
A number of factors loomed large in respect of the determination of these proceedings, and a significant amount of evidence was called in relation to those various matters. In particular were issues with regard to the applicant’s health and her capacity for future employment, as well as issues with regard to the indirect contribution made by the applicant to the respondent’s [omitted] career, it being the case that the respondent is a [omitted], though he had been a [omitted] prior to the commencement of the relationship in early January 2004.
Interestingly, neither party required the significant number of further witnesses for the other party to be called, though it would appear that each sought to rely upon their witnesses’ evidence.
One of the first issues that arose in relation to the determination of these proceedings was whether the evidence contained within those various affidavits should be able to be relied upon. It was, in fact, contended on the part of the respondent that the material filed by the applicant was late in time and that, therefore, there should not be an opportunity to rely upon that evidence. It is noteworthy, however, that the objection taken with regard to reliance upon that evidence was not specifically pressed at the commencement of the hearing, though it was certainly noted that counsel for the respondent would need to have the opportunity to, at least, take some instructions, in relation to material that was before the Court.
An opportunity was given on the first day of hearing for instructions to be taken by counsel for the respondent, in relation to the material, and the matter was then adjourned, to enable the case to proceed. After then dealing with various objections in relation to certain of the affidavits that were filed, the matter did proceed, and it was noted, at that time, that whilst there might be arguments put forward, in respect of various issues that arose, including matters with regard to costs, the application was to proceed.
I am therefore not enamoured of the suggestion that it should simply be the case of leave being refused with regard to relying upon the contents of the affidavits of each of the various deponents. There is, however, the inherent difficulty that arises with regard to evidence which is untested by way of cross-examination, particularly when, as is the case here, there are conflicting views, certainly with regard to the involvement of the applicant in the furtherance of the respondent’s [omitted] career, but I shall come to those particular aspects of the matter a little later in these reasons.
Suffice it to say that I am satisfied that, to the extent that consideration can be given to the evidence contained within those many affidavits, they should be considered and given the weight that is appropriate, in all the circumstances. What that, of course, means is that the evidence of the deponents called for both the applicant and the respondent needs to be considered and, at least where appropriate, some comment made in relation to their evidence.
It was submitted that the applicant’s witnesses could be broken down into distinct categories. There was suggested to be three categories that might be able to be considered, in relation to those deponents, being medical practitioners, allied health professionals and witnesses able to comment upon the type of contributions that were either directly made or would have been expected to be made by the applicant, in the furtherance of the respondent’s career. I shall turn to each of those witness categories accordingly.
MEDICAL AND ALLIED HEALTH PROFESSIONALS
For the applicant a number of medical professionals were called. They included Dr Y, Dr B, Ms K, and Mr C. Additionally, Ms C, an occupational therapist, provided a report in relation to the applicant. That report provided a comprehensive summary of issues, in relation to the health, both physical and emotional, of the applicant. I shall come to that evidence shortly but beforehand will comment, as necessary, upon the evidence of the various medical professionals called in relation to the applicant’s case.
Dr B is a medical practitioner in general practice in the [omitted] area. He notes that he has been treating the applicant since 1988 and that he, as he describes it:
...manages her general health plan in conjunction with other medical professionals including Dr Y, Dr L and physiotherapists.
He notes in his affidavit that he last attended with the applicant on 26 February 2015, which was only some eight days or so prior to the swearing of his affidavit, in relation to the filing of the affidavit.
Dr B notes that the applicant suffers from severe osteoporosis, as a result of early menopause and has, as a result of osteoporosis, suffered various fractures and difficulties arising from that condition. He notes that she will require ongoing medical treatment in that regard and also notes that Ms Tuckson is suffering from neurodermatitis, as a result of chronic stress related to, it is suggested, her workplace arrangements. With respect though, it is unclear whether those stress circumstances existed prior to her relationship with the respondent and working on occasions for him, or whether they are directly related to the circumstances within her workplace and work with the respondent.
In any event, that particular matter was the subject of independent inquiry and is not necessarily relevant, in relation to the determination to this matter. Dr B, in his report of 1 February 2015, which is, of course, the closest in time to the hearing, noted that he had had the opportunity of reading the report prepared by Ms C and that he agreed with the statements made by her, in relation to the applicant and her illnesses. He specifically confirmed that the applicant suffers from what he described as “incurable conditions of osteoporosis and osteoarthritis”.
He also noted that her conditions led to limitations, in respect of her ability to sit for prolonged periods, which limited her ability to perform clerical or desk duties and went on to note, that it was because of the exacerbation of her left hip pain that she was, he recommended, required to resign from employment. He notes in the final paragraph of his letter of 1 February 2015 that the applicant will require a disability pension long term, which will allow her to work the hours she is able, without exacerbation of her condition.
Dr B, in a letter in response to queries directed to him by the legal representatives for the applicant, noted that the applicant had suffered from hormonal issues associated with the approach of early menopause, in the years prior to meeting the respondent and that she also suffered from anxiety and pseudoseizures, as a result of extreme work hours and deadlines expected in her line of work. Dr B also notes that the applicant’s medical condition is such that she:
...is no longer able to work at the intensity and under the pressure that she has always done in the past.
To the extent that I am able to give consideration to the evidence of
Dr B, I accept his assessments in relation to the applicant. Dr Y is a consultant physician working in the [omitted] area. She notes that the applicant has been a patient since 2006 and confirms that the applicant suffers from the medical conditions of osteoporosis and osteoarthritis. Dr Y has provided various reports in relation to the applicant, the most recent of which is a report dated 22 January 2015, though she also annexes to her affidavit a letter in response to various queries which were directed to her by the solicitors for the applicant.
In the most recent report of January 2014, she notes a number of problems in relation to the applicant’s health. These include:
(1) Osteoporosis with previous left hip fracture December 2007 requiring total hip replacement 2008 and redo in mid-2011
(2) Premature menopause
(3) Hormone replacement
(4) Recent return of hot flushes - for trial of Venlafaxine, (Efexor) in addition to Angeliq ½
(5) Depression
(6) Gluten enteropathy managed with strict gluten-free diet
(7) Viral meningitis January 2006
(8) Significant life stresses
(9) Osteoarthritis most symptomatic at the first and second fingers, as well as the right hip - for trial of Glucosamine/Chondroitin/slow release Paracetamol/Meloxicam
Thereafter, Dr Y goes on to comment upon a recent examination of the applicant and details the issues that were found by her to relate to her health and its effect upon her future employability. In the final paragraph of that letter she notes:
I have asked [Ms Tuckson] to discuss with her employers the possibility of making her workstation more ergonomic in view of her symptomatic osteoarthritis and ongoing requirement for computer work. [Ms Tuckson] will follow up with yourself. Thank you for your continuing care.
It should be noted that whilst that correspondence is of 14 January 2014, and apparently originally directed to Dr B, it has been redirected to Ms C, apparently without any form of change. Again, to the extent that I am able, I accept the evidence of Dr Y in relation to this matter.
The extensive report of Ms C makes reference to a number of other medical reports which were available to Ms C, but there does not appear to be affidavit evidence provided from those various medical practitioners.
Again, to the extent that I am able, I will give consideration to the evidence of Ms C, in relation to the inquiries that she has made, with regard to the applicant’s health but before doing so would note that
Ms K, a physiotherapist, has provided a report as well as Mr C, a psychologist. Both of their affidavits were filed a few days prior to the hearing. Ms K, in her report dated 2 March 2015, noted that the applicant had:
...quite an extensive history of issues relating to her musculoskeletal health.
Ms K indicated that the conditions relating to her area of expertise, certainly indicated that there were limitations in the applicant’s ability to sit for prolonged periods, which greatly limited her ability to perform clerical or desk duties. Ms K noted that there were direct effects of the musculoskeletal presentations for the applicant, which would require ongoing management, particularly as the applicant were to age. She noted that there would be a requirement for twice weekly small group clinical Pilates and other forms of management, which would require the continued determination of the applicant, in relation to achieving the best results that she could, in relation to her future comfort, both personally and work related.
Mr C’s affidavit notes that he initially was briefed by the Australian Government, through Comcare, to examine and prepare a report, in relation to the applicant and that that examination was attended to in November of 2013. But he also notes that a further report was commissioned by the applicant’s solicitors in January of 2015, and that report was prepared and dated 20 February 2015. The report of November 2013, prepared at the request of Comcare, noted that the applicant:
...described a history of symptoms related to stress and depression throughout her relationship with Mr Elsey, and following the breakdown of their relationship and the death of her mother there was an immediate increase in her levels of distress and a worsening of her depression.
Mr C goes on to note:
In my opinion, it is reasonable to assume, given the limited information available to me, that Ms Tuckson’s mental health condition is directly attributable to the alleged abuse she was exposed to throughout the relationship, the traumatic death of her mother, and the stress of having to deal with post-separation issues, including financial stress, loss of employment, and her fears with regard to dealing with Mr Elsey in an adversarial legal setting It is also my opinion that Ms Tuckson is likely to experience ongoing stress and depression until the post‑separation issues are resolved
A little over a year later, the further report of Mr C was made available, though it was, as he noted in his correspondence of 20 February 2015, in response to the questions directed to him by the legal representatives for the applicant. He notes, in particular, that the responses are relatively brief and that the first of those reasons arose from the fact that he had only had the opportunity to meet with the applicant briefly on 4 February 2015 and had not seen her previously for a period of about six months, as the last appointment with him had been in August of 2014.
Additionally, Mr C noted that health conditions relating to the applicant had “never been a significant focus of treatment sessions” and that, as a result of that, he had not previously discussed these issues in any detail with the applicant. The assistance able to be gathered, then, from the more recent comments of Mr C are limited. He himself acknowledges that, in particular, making reference to the fact that the range of psychological outcomes for people with chronic debilitating health conditions and chronic pain vary considerably, and further, that any person unable to continue working during ill health, would necessarily go through a period of psychological adjustment, in relation to their changed conditions.
In that respect he notes that, in his opinion, the applicant is:
...likely to experience a period of heightened stress as she adjusts to being unable to work with symptoms of anxiety and depression; however, I do not think that she is at significant risk of developing long-term psychological problems as a result of this process.
When asked specifically to comment on whether the applicant’s medical conditions would impact upon her quality of life for the balance of 2015 and into the future he, understandably, indicated that he could only comment on the impact of her conditions on her psychological wellbeing and not on her general quality of life and then went on specifically to indicate:
Ms Tuckson is likely to experience a period of psychological adjustment that should resolve in six to 12 months.
Mr C’s report, understandably, was brief and, in light of the limited opportunity for interaction with the applicant, was not able to comprehensively comment upon or provide assistance, in relation to the future prospects that might or might not face the applicant.
As I indicated earlier in these reasons, Ms C, in her report of 16 January 2015, confirmed that she had perused and considered various documents and medical records, including those of Dr Y and Dr B as well as the early report of Mr C. Additionally, however, Ms C perused a report of Dr L, a report of Dr H, reports of Ms S of 16 October 2013 and 7 November 2013, though in light of the chronology, had not seen the report or comments of the physiotherapist, Ms K.
Further, she had perused reports of Dr O, documentation made available from the Comcare claim for workers compensation, as well as the report of Dr A, the report of Dr P and other information available to her, which enabled her to, at least some degree, corroborate various issues in respect of the applicant and her health.
She noted that a basic assumption at the time of commencing her report, was that the applicant suffered from severe osteoporosis and a number of other health issues stemming, in the main, from the early onset of menopause, at the age of 32 years. Additionally, notation was made of the fact that there were various other physical health issues, in relation to the applicant as well as her having suffered from viral meningitis in January of 2006, as well as having developed, from about September of 2012, a neurodermatological reaction, which was visible on her arms.
Ms C was asked to comment upon all that she could draw from that evidence, as well as from her own observations and analysis and interpretation of performance tasks, which were directed toward the applicant, as well as interviews and information, which was made available to her by various means. Ms C provided a comprehensive summary of the circumstances that she found existing, with regard to the applicant, in her report of 16 January 2015, and after detailing, at length, a commentary in relation to the various indicators arising from medical reports and allied health reports, that were made available to her and including information gathered from interaction with the applicant, Ms C noted at paragraph 17:
Ms Tuckson’s functional capacities will determine her capacity for work, enjoyment of preferred amenities of life, capacity for personal activities of daily living, capacity to perform her routine domestic tasks and any special dwelling requirements in the future.
She went on to note that in the best case scenario, the applicant could be expected to have the need for various therapeutic regimes and medical treatments now and into the future, and in the worst case scenario the applicant could become:
...considerably disabled, with impaired mobility, being unable to work, dependent on considerable domestic assistance and requiring special aids to enable her to attend to her personal routines with dignity and safety and attend to her domestic routines independently and with safety.
She went on to note that there would obviously be certain adjustments that might be required, dependent upon the best case or worst case scenario coming to fruition, but they might include such things as special aids required in relation to cooking and kitchen tasks, as well as walking aids, bathing aids and dwelling requirements that might include a specific need to relocate to a low set dwelling with lever taps throughout kitchen, laundry, bathroom and the like.
At the conclusion of comments made by Ms C, in relation to specific matters that were raised with her, she noted that, whilst it would be speculative, there were concerns in relation to the applicant’s future, and she said:
In summary, Ms Tuckson’s increased risk of falls associated with aging could be expected to lead to fractures of her wrists, spine, hips, long bones and the like. Risk factors for osteoporotic fractures can be both non-modifiable and modifiable. Intervention for the management of osteoporosis includes recognition of the importance of regular exercise; developing an individualised home-based exercise program; recognising risk and precautions and employing appropriate strategies for same; recognising the importance of posture and back care to minimise the onset and symptoms of kyphosis or ‘Dowager’s hump’; employing good nutrition with adequate calcium intake; employing practical pain management under the guidance of an appropriate medical advisor; receiving appropriate and timely physical, emotional and psychological support, especially as the condition worsens.
Ms C’s report addressed those issues that arise in relation to the future expectations, both with regard to her life generally and with the employability of the applicant. I was assisted by the report by Ms C, particularly to the extent that it drew together the significant amount of evidence that had been gathered, in relation to the applicant and to the difficulties that confronted her, as a result of her health circumstances.
Of course, I accept also, that there is an implied degree of speculation with regard to what the future might hold, and in that respect, it is noteworthy that Ms C identified the amount of stoicism that was shown by the applicant and her ability, therefore, to work and provide for her needs into the future, notwithstanding the difficulties that had confronted her in varying ways. Additionally, it is noteworthy that
Ms C, understandably, was only able to gather from Ms Tuckson her “version of the relationship” between she and the respondent.
I will obviously need to address those issues of credit, in relation to evidence, when commenting upon the evidence of the applicant and the respondent directly.
OTHER WITNESSES
I turn now to the evidence of Mr P, Mr B, Mr G and Ms G. Those witnesses gave evidence, relating specifically to issues with regard to the role and obligations of a spouse, in circumstances where their partner is involved in public life and in particular, [omitted] life, as well as, at least in relation to Mr B and Mr and Ms G, indications of their direct observations of the relationship and interactions between the applicant and the respondent.
Mr P indicated in his affidavit filed on 26 February 2015, that he did not know the applicant and was unsure whether he might even have ever been introduced to her. He indicated, however, that he knew the respondent and that he had, in his role [omitted], had significant involvement in all aspects of [omitted] life, and that he was in that role for a period of some three to four years, between 2005 and 2008.
As [occupation omitted], Mr P was required, he said, to be responsible for the conduct of all aspects of [omitted]. He says that in that regard, he was exposed to a wide range of full-time [omitted] professionals and noted that in his opinion, it was:
advantageous for [omitted] to have a partner, not only to [omitted], but also to regularly assist them in the performance of their diverse daily duties.
Mr P then went on to comment about his views, as to the need for spousal support, as fundamental in relation to getting and staying [occupation omitted] and to varying degrees, all of the partners of those involved in the [omitted] world, were expected to regularly support their spouses and appear at a wide range of events [omitted].
He noted also that partners were, on occasion, required to [omitted]. Insofar as Mr P’s capacity to comment upon the role or involvement of the applicant in this matter is concerned, he was only able to note that he had visited the office of the respondent on a number of occasions in the course of his duties as [omitted] and had always found his office to be professionally run.
Additionally, he noted that the workload of a [omitted] wife would be more than that of a [omitted] and that, in his belief, it would be:
almost a full-time job for a spouse to keep up with diary of invitations, events, requests and a raft of [omitted] inquiries.
Mr P’s affidavit relates to his general understanding and opinions, in relation to matters with regard to the role of a spouse of a [omitted] and to that extent, it is of some assistance, though, of course, does not relate directly to anything observed, in respect of the relationship between the applicant and respondent in these proceedings.
Insofar as the evidence of the deponent’s Mr B, Mr G and Ms G are concerned, however, there are at least some personal observations referred to. Mr B indicates in his affidavit that:
I have for most of my working life been in leadership roles which have required me to train, mentor or supervise and assess people. I have been required to make decisions about the capacity of people to perform tasks which will directly impact on their own personal safety and the safety of others.
He then goes on to detail his work history, which is of little relevance, in relation to these proceedings. However, he also notes that he has been actively involved in the [omitted] process for most of his adult life and indicates, as did Mr P, that the role of one’s partner in a successful [omitted] career is well-accepted.
Mr B then goes on to comment about his own observations of the life of a [omitted] and of their partner or spouse, in relation to the conduct of a successful [omitted] career. More specifically, however, he then speaks of first meeting the applicant through the respondent in early 2004, when he was [occupation omitted]. He notes that he and his wife soon became good friends with the applicant and that they met socially, as well as at public functions.
He indicates that shortly after meeting the applicant in early 2004, at or about the time of the commencement of the relationship with the respondent, that the applicant had indicated that she lacked confidence but had a desire to improve her social skills to better present herself and by extension, the respondent.
Mr B goes on to note his observation, that the applicant quickly grew into the role and became very much at ease at functions, dinners and other public occasions and noted at paragraph 17:
[Ms Tuckson] was a tremendous support to Mr Elsey’s career during their relationship. I do not recall hearing any criticism from Mr Elsey or anyone else about her character or support of him in his public life.
Mr B also commented about the role and support provided by the applicant to the respondent, in relation to the support of the respondent’s son, [Z], who came to live with the applicant and respondent in or about 2007.
Mr B was not required for cross-examination, though I do note, that counsel for the respondent specifically raised with the applicant, in cross-examination, issues with regard to whether Mr B and the respondent were rivals of some sort, within the [omitted] sphere. The applicant acknowledged that there had been some form of falling out between Mr B and the respondent in 2007 or thereabouts, but was unable to comment as to what that might have related to, or otherwise to comment in relation to the evidence of Mr B.
To the extent that I am able to accept the unchallenged evidence of
Mr B, I do so.
Insofar as the evidence of Mr G and Ms G are concerned, their evidence relates specifically to their own experience within the [omitted] sphere. Mr G indicates in his affidavit of 24 February 2015, that he was [occupation omitted] in March of 1983 and retired from [omitted] in February of 1993. Mr G goes on to note in paragraph 6:
I credit much of my success in [omitted] to the support I received from my wife Ms G. Ms G was indispensable to me. Ms G attended countless functions with me and in my absence. I spent significant periods of time in [omitted], away from home travelling around [omitted].
Similarly, Ms G, in her affidavit, also filed on 24 February 2015, noted in paragraph 2:
Even though I saw myself as being in the background to Mr G’s [omitted] life, it soon became apparent to me that I had no choice but to participate in community affairs, if I was to support his [omitted] career.
Again, there is no personal knowledge of the relationship or services that might or might not have been provided by the applicant to the respondent during their relationship, and in the course of the respondent’s [omitted] obligations, but I accept as unchallenged that their personal relationship required significant input by Ms G, to the [omitted] career of Mr G.
Finally, in respect of the supporting evidence called on the part of the applicant, I note that the applicant’s father, Mr T, swore an affidavit, also filed on 24 February 2015. Mr T was not required for cross‑examination and, again, I accept his evidence generally relating to the matter as unchallenged. In particular, Mr T commented upon his daughter’s “unwavering commitment”, to the respondent, and his observation of her having performed administrative tasks for the respondent in their home, and his observation of the applicant frequently being on the telephone, coordinating activities associated with the respondent.
Mr T also commented upon the respondent being complimentary of the applicant and indicating to Mr T his satisfaction with the work that she performed on his behalf. Mr T also commented upon his observations of the relationship and interaction between the applicant and the respondent’s son, [Z], and noted that they appeared to have “established a good relationship”. Mr T commented upon moneys lent by him to the applicant, in various capacities, during the time subsequent to separation between the applicant and the respondent.
Additionally, on behalf of the applicant, an affidavit was filed under the hand of Mr D, a forensic accountant, in [omitted]. Mr D was not required for cross‑examination and, with respect, his evidence in relation to this matter was of little direct consequence, in relation to the determination of these proceedings. To the extent, however, that it is necessary to acknowledge the evidence of Mr D, I note that it is unchallenged and accepted as an accurate reflection of what existed, in respect of the financial particulars upon which he was asked to comment.
I turn then to the evidence of various witnesses called on behalf of the respondent. In particular, there is again a necessary distinction, that is to be drawn between what might be referred to as [occupation omitted] commentary and personal commentary, within the evidence of the deponents.
Called on behalf of the respondent was Mr W. Mr W indicated that he had known the respondent since he first [omitted] in 2001. He indicated that he had held a variety of positions within the [omitted]. More particularly, Mr W indicated that he had worked [omitted].
Mr W also said that he knew the applicant, having met her as the respondent’s partner in around late 2004. Mr W gave evidence that the applicant had never been a [omitted]. Perhaps the best that can be said in relation to that, was that, to Mr W’s knowledge, the applicant had not played an official or unofficial role in any of the [omitted], but that is not to say that she did not, in various ways, perform a role or provide assistance or support for the respondent, that was not known to Mr W.
If you like, it is simply the counter to the position taken by the various witnesses called on behalf of the wife, including particularly Mr B and Mr and Ms G, which indicated what they understood were the roles of spouses of [omitted], at different times. Quite simply, there is little that I can draw from the statements of Mr W, but note that it is a counter‑perspective, to that taken by the various witnesses for the applicant.
However, also giving evidence in relation to the aspect of the support provided, in relation to the respondent’s [omitted] career, are Ms J and Ms H. Ms J, in her affidavit filed on 13 February 2015, indicates that she has known the respondent for approximately 20 years and first met him when he started to travel to [omitted], in 1995. She also noted that subsequent to 1996, when the respondent was first [occupation omitted], she kept in touch with the respondent, though in 2002 she moved to the [omitted].
Ms J indicates that she then knew the respondent’s current wife, Ms E, who at that time was the respondent’s personal assistant, but also, in maintaining contact with the respondent, came to know the applicant. She indicates that after moving from the [omitted], where she had previously been residing, to [omitted] in 2008, she often interacted socially with the applicant and the respondent.
Ms J noted that from 2008 onward, she would often visit the respondent at his farm for the day, and also on occasion stayed overnight. She noted that the respondent would frequently entertain guests at his farm for lunch or dinner, and deposed to the fact that:
[Ms Tuckson] refused to go there after she fell off a horse at the farm in the previous year.
Ms J indicated that, in the circumstances, she also acted as a hostess, assisting the respondent with the cooking and to make up the numbers for the respondent’s luncheons or dinners. More particularly, Ms J noted that the applicant was aware of her going to the farm and of the role that she was performing at the farm, and indicated that the applicant had advised that she was not interested in attending at the farm and did not like attending there any more.
Ms J was not challenged in relation to that particular aspect of the matter and, although it is not in identical terms to the indications given by the respondent, in relation to the applicant’s attendances subsequent to a fall from a horse in 2007, it is clear that her unchallenged evidence is that the applicant did not, from at least 2008 onwards, provide the hostessing or partner’s support, at least insofar as functions at the respondent’s farm was concerned.
Additionally, Ms J commented upon the fact, that from September 2010, when the respondent [occupation omitted], she commenced to work for him and that she, in that capacity, then had interaction with the applicant, when she would drop in to the office. Ms J noted that the applicant maintained the respondent’s personal accounts, as well as the office accounts, but deposed to the fact that she did no other work for him and did not, to her knowledge, work in the office at any time.
She also noted, that the applicant rarely accompanied the respondent to work‑related events, unless there was a specific personal reason for her to attend, indicating that the applicant had suggested that they were “boring”. Ms J was not challenged in relation to these observations, and it is interesting and noteworthy, in that respect, that she was not challenged with regard to her specific comments, in respect of the work performed by the applicant on behalf of the respondent, as well as with regard to the specific issue of the support provided by the applicant, as the respondent’s spouse or partner.
It is significant in that one of the major heads of claim on the part of the applicant, is that she performed, to an extensive degree, such a role on behalf of the respondent. I was assisted by Ms J’s evidence in this matter.
Similarly, I was taken to the evidence of Ms H. Ms H had been the respondent’s executive assistant and then chief of staff, during the time that the applicant worked for the respondent. Ms H noted that the applicant was employed to complete administrative tasks, which were completed from home over two days per week, and that that included some irregular administration tasks such as [omitted] allowance reconciliations, bookkeeping, and some general office tasks, as requested by the respondent.
Ms H commented upon her observations of the role of a spouse in public [omitted] life. She noted at paragraph 5:
Prior to my employment with Mr Elsey, I had worked for a number of [omitted], both in a paid capacity and as a volunteer. Their partners would [omitted].
Ms H then goes on:
During my time in Mr Elsey’s office Ms Tuckson did not attend any [omitted]. Ms Tuckson was very much in the ‘background’, to a point, I think it is fair to say, she offered no tangible assistance outside of her paid duties.
Ms H goes on to indicate the difficulties that she observed in the relationship between the applicant and the respondent, particularly, it would seem, toward the end of the relationship. She indicates, for example, the applicant would contact her to ascertain whether the respondent would be “in town” on particular days, and suggested that the applicant indicated to her that she made these inquiries, so that she could arrange work at her other jobs on those days, so she did not have to see the respondent.
Ms H suggested that the applicant would speak down about the respondent to her and to other office staff, and suggested that she would speak of the respondent in a derogatory manner. Ms H noted concerns with regard to communications between herself and the applicant following the applicant and respondent’s separation, and noted that it was -
…my personal decision not to return her calls, because they were not of a professional nature -
and also, no doubt, because of her professional obligations to the respondent.
Ms H noted, in particular, that the respondent was not aware of the calls or the decision made by her, and at no time was she aware of any comments, of derogatory or other nature, made by the respondent about the applicant, to any of the staff within the office.
Again, I note that Ms H was not required for cross‑examination in relation to this matter, and would simply recognise the significance of that, in relation to Ms H having made very specific comments, in relation to what might or might not have been the role of the applicant within the respondent’s office, and in particular her specific comments with regard to the lack of any outward appearance of support provided by the applicant to the respondent.
Additionally, evidence was taken from Ms N. Ms N noted that she knew the applicant and the respondent, as they became her neighbours in 2006. She also indicated that a sincere friendship had developed between she and the respondent, as well as with other members of her family. Ms N specifically spoke of her observations as a neighbour, in respect of the relationship between the respondent’s youngest son, [Z], and the applicant. She noted that [Z] grew close to her family after he moved into the residence shared between the applicant and respondent, and commented in paragraph 3:
[Z] appeared to be extremely unhappy living with [Ms Tuckson], and they always seemed to be arguing. [Z] would often come to my home very upset or in tears because of the way in which [Ms Tuckson] spoke to and treated him.
Ms N went on to note, that she would provide [Z] with meals when his father was away, because of complaints that [Z] made that there was no food in the house, as well as noting that [Z] and the applicant did not seem to have a close relationship. It is also noteworthy that, in paragraph 5 of her affidavit, Ms N notes that:
[Ms Tuckson] told me that she really wanted to be left alone, and that she did not want the responsibility of kids.
Ms N was not required to give evidence in relation to this matter and, again, I note the significance of that particular evidence, though I recognise that it is contrary to the evidence given by Mr B, in relation to the enthusiastic approach taken by the applicant to the primary parenting role that she had, in relation to [Z]. It is noteworthy, however, that Ms N’s comments arise from direct observation, whilst Mr B’s comments all are couched in terms of indications given to him by the applicant, of her relationship with [Z] and of the enthusiastic nature of her adopting the role, in the life of the parenting of this boy.
Also providing evidence by way of affidavit was Mr E, the respondent’s older son, and his current wife, Ms E. Mr E indicated a less than close relationship with the applicant. In particular, he suggested that his son’s relationship with the applicant was not as positive as was suggested in the report of Ms C, which report detailed information provided to Ms C by the applicant, specifically with regard to her relationship with Mr E’s children.
Further, and perhaps more significantly, however, Mr Elsey commented upon the business relationship between he and the applicant, in respect of the operation of the business “[T]”, as well as his observations of the applicant’s involvement in, and attendances at, the respondent’s farm at Property B.
There is significant divergence between the evidence of Mr E and that of the applicant, in respect of who performed what tasks and in what proper manner. But it is noteworthy that Mr E was not called or challenged, in relation to his statements, both with regard to the operation of the business and with regard to the suggestion that the applicant did not accompany the respondent to the farm from 2005 onwards, and in noting that he was not aware of any visits that the applicant made to the farm, during the period from 2005 onwards.
It was unclear to me whether the fall from the horse, that the applicant speaks of, in 2007, occurred at the farm property or at some other place, but, either way, it is clear that Mr E was not supportive of any suggestion, in respect of the applicant’s involvement in the business or the operation of the farm.
Ms E provided an affidavit which was objected to in a number of respects, with regard to relevance and otherwise. What is significant, however, is that Ms E was in a relationship with the respondent from about 1998 until April 2003, but then later married Mr A, and there was a child of that relationship, [X], who is now the stepdaughter of the respondent.
Ms E noted that she and the respondent married on [omitted] 2013, and that she now takes a significant role in the support of the respondent. Much of what is deposed to by Ms E, with regard to her professional life, her emotional wellbeing and her daughter, [X], are not directly related to the determination of this matter, nor, with respect, are issues in respect of her property settlement or finances, arising from her circumstances, in regard of her previous relationship.
However, it is noteworthy that Ms E details between paragraphs 90 and 98, under the heading “Key Responsibilities”, what activities and involvements she has with or on behalf of the respondent. She notes, for example, that she manages his [omitted] allowance and provides end of financial year information to his accountants. She manages financial matters relating to Property B, as well as being responsible for the couple’s personal finances. She also manages the logistics of running two homes on a day‑to‑day basis, and has effected various works upon properties. More particularly, however, at paragraphs 97 and 98, she says:
I represent Mr Elsey at functions and events when he is unable to do so. By way of example I have [omitted].
Unless [Mr Elsey] is in [location omitted] for a fortnight there is not a week that goes by that I do not accompany him to one or more functions [omitted]. Over any given weekend there can be up to five different events or functions. I am a highly visual [omitted] wife and I see that as part of my role.
Ms E was not challenged in relation to that evidence, and I accept that it is an accurate reflection of the responsibilities and obligations that fall upon her in relation to supporting the respondent’s [omitted] career. However, it is clear that she has taken on that role and notes, as she does, that she sees it as part of her role, as the spouse of the respondent.
The distinction between Ms E’s evidence and that of the applicant, in relation to this matter is clear, when Ms E was not challenged in relation to her evidence with regard to that aspect of her role as the partner of a local [occupation omitted], whilst the applicant was clearly the subject of significant cross‑examination, in relation to such issues. What might or might not be able to be drawn from that is something that I will come to during the discussion in these proceedings.
Before turning, then, to the evidence of the parties themselves, and of course, they are the most significant deponents and provide the most significant evidence, in relation to these proceedings, I note also the various affidavits filed by Mr S, a director of [omitted] Pty Ltd, and Mr B, a director of the legal practice [omitted] and operator of the consulting practice, [omitted].
Both Mr S and Mr B have provided opinions in relation to the [omitted] pension available to the respondent. I was not particularly taken to the evidence of either of those gentlemen, and note that their comments simply relate to methods of valuation and the appropriate application of the various laws and regulations, with regard to the super scheme. In any event, it is clear that the parties acknowledge that the [omitted] pension has a value of $1,614,458, if valued as required, pursuant to the legislation. The issue really relates to how that particular scheme should be dealt with, pursuant to a just and equitable determination of the Property Batters between the applicant and the respondent.
THE EVIDENCE OF THE PARTIES
I note that the parties commenced their relationship in January 2004, and at that time the applicant was 38 years of age and the respondent was 53 years of age. They separated on 28 September 2012 and, as I indicated at the commencement of these proceedings, the relationship was a little short of nine years in length.
They did continue to live under the same roof for a period of some five or six weeks, after they acknowledged that separation had occurred, but it would appear that that was more a situation of convenience, particularly from the applicant’s perspective, prior to the applicant being able to arrange alternate accommodation. The issues that I have previously identified as being critical to the determination of this matter relate particularly to the contributions of the parties, at the commencement of and during the relationship, both financial and non‑financial, as well as issues with regard to the future circumstances, as best they can be assessed, in relation to both the parties.
There are also issues raised by the applicant, with regard to the possibility of spouse maintenance being ordered, as well as stemming from the issue of contribution, including the exact nature of the support that was provided by the applicant to the respondent, in respect of his [omitted] career. Both the applicant and the respondent provided lengthy affidavits and were cross‑examined for a significant period of time, during the conduct of the trial.
Each of the parties in different ways impressed me, but also, as is not uncommon, each in different ways troubled me with regard to the nature of their evidence and the degree to which their evidence could be accepted as a credible statement of the circumstances that existed, during the relationship.
Insofar as the applicant was concerned, for example, I was impressed, as, it would seem, was Ms C, with her stoicism. I gained the distinct impression that, for many years, and certainly for a period prior to the commencement of any relationship with the respondent, as well as, of course, during the relationship and subsequent to separation, the applicant has dealt with a multitude of debilitating and painful physical and medical issues. The evidence provided in relation to the applicant’s circumstances were the subject of some challenge, but, I must say, only on a much more technical basis than a challenge as to the correctness of the diagnoses, that were relied upon.
I am satisfied that the applicant does suffer from a number of medical conditions, as well as, unfortunately, in more recent times, some psychological concerns, which affect her capacity to continue in employment. It is clear, however, that she has, perhaps, over and above what was reasonable to expect of her, continued to seek employment and to work in various capacities, because that is an indication of her determination to be involved in all of the circumstances of her life.
There were, however, just as clearly, other issues which troubled me. Simply by way of comparison, the impression I gained of both the applicant and the respondent was that, in some respects, they were not as full and frank, particularly with regard to disclosure, as might have been appropriate.
For example, the applicant sold her property at Property A, [A]. She was entitled to do so. She owned the property and had liabilities that attached to the Property Dhich she wished to deal with. But it does appear clear that, notwithstanding her complaints about non‑disclosure on the part of the respondent, this information did not become known until, literally, the days just prior to the commencement of the hearing.
Of course, there was a similar complaint made with regard to the respondent transferring at least part of his interest in the Property B farm to his now wife, Ms E, without notice being given in relation to that.
What is distinguishable, however, is that the respondent did not suggest that there might be any change in values associated with the Property B farm, or at least the interest that might properly be taken into consideration, approximately $800,000, notwithstanding that he no longer owned the entirety of the property. With regard to Property A, however, there was clearly a significant change which was not readily identified on the part of the applicant.
What was of greater concern, however, was the apparent inconsistency between what the applicant said were her specific medical needs, and her failure to take any real steps to address those needs. For example, the report of Ms C, which was sought to be relied upon heavily in relation to the proceedings, had made numerous recommendations with regard to various pieces of equipment and bedding, which would provide some comfort and support for the applicant, as well as for various forms of treatment or therapy that, again, would provide some assistance, in relation to dealing with some of the difficulties associated with the applicant’s medical conditions.
It would appear that the applicant, though seeking the assistance of the respondent, financially, in relation to dealing with such matters as were recommended by Ms C, had not taken steps in relation to addressing those issues herself, notwithstanding the fact that, for example, she had received significant sums from her father, which were utilised for various purposes, none of which related to the actual direct attention to issues, in relation to her health and her needs.
Similarly, I was troubled by her evidence in relation to financial contributions to the relationship between she and the respondent. Quite simply, there appeared to be and it was identified repeatedly on the part of the respondent, circumstances of moneys simply being removed from one account, placed in another account, and then utilised for various purposes. There did not appear, in my assessment, to be any real legitimacy in relation to the multitude of payments that the applicant suggested she made.
More specifically, she was cross‑examined about transactions and payments relating to the property previously owned at Property D. She indicated that she had bought the dishwasher, and had paid for insurance and rates, and replaced the pool filter, and had made other payments. However, when pressed, she acknowledged that the respondent had made the first payment on the dishwasher of $300, and then that she suggested that she had paid the balance.
There was a general inconsistency and, I thought, a recurring theme of exaggerating the contributions of a financial nature made by her, and minimising or, in fact, simply disregarding the financial contribution made by the respondent. That’s not to say that there were not contributions made by the applicant during the relationship, and I accept that there was, at least to some extent, a merging of the funds of the parties. However, I note and accept that it was much more, as suggested by the respondent, a situation of his finances being merged with the finances of the applicant, but far lesser an instance of the applicant’s finances being mixed or melded with those of the respondent.
The impression I gained was that there was a significant amount of money moving between various accounts, all of which gave the impression of more significant contributions being made by the applicant, to the joint financial obligations of the parties.
Similarly, whilst I acknowledge the serious nature of the applicant’s various medical conditions, there also does not appear, when it suited the applicant, to be as many restrictions on her activities as she would suggest. In that regard I note, for example, that she has engaged, in more recent times, in the purchase of motorcycle riding gear, as well as the purchase of an activity type camera, a GoPro, for the purposes of motorcycling with a friend, [name omitted].
Whether or not there is a relationship with [name omitted] is irrelevant, but it is clear that the applicant is not as debilitated, in relation to many of her social endeavours as she would suggest would be the case.
Similarly, it appears that only a matter of a few months before the trial, in November 2014, the applicant travelled to [omitted] Island to visit with a friend and slipped whilst boating. It may be, of course, that any injuries she sustained and difficulties were as a direct result of the physical effects of her medical conditions, but what is abundantly clear is that they are not, when it suits the applicant, as debilitating as she suggests.
It is, therefore, a little troubling that, whilst the evidence of Ms C and other medical professionals clearly suggests that there are difficulties with regard to employment, there is not a total restriction in relation to same, though the applicant ceased employment just prior to the hearing. It was suggested that she was “hedging her bets”, and that was categorically denied by the applicant, but there was certainly an impression that, whilst the applicant may not have been able to continue in the full‑time employment that she had sought to take on, there was nothing that would suggest that she would not have been able, in various respects, to take on work of a part-time or less arduous nature, similar to that which had been available to her, until the recent past.
Additionally, the evidence of the applicant, in relation to what she says was the nature of her relationship with the respondent, troubled me. The applicant placed some reliance upon the purchase by her of a Collette Dinnigan wedding dress and the purchase of a ring which, at least from her perspective, she considered an engagement ring. The best evidence that the applicant could provide, particularly with regard to marriage or in respect of any proposal of marriage, was that it was suggested by the respondent to her in 2004, no doubt, during the early stages of their relationship.
The marriage never eventuated, but there seems to have been some significant reliance by the applicant upon what was said by her to be a reference to marriage, though categorically denied by the respondent as ever having been suggested.
In light of those comments and findings, I am satisfied that the best assessment of the assets of the parties is as detailed below:
Assets Value Property C, [C] $385,000 Property D, [D] $580,000 Property B $800,000 Proceeds of sale – Property A $105,427 2007 [omitted] $9,100 [omitted] – Pickup $19,500 [omitted] – Soft Tail $8,075 [omitted] $15,555 Bank accounts as at 06/03/2015
CPB [1] $55
CPB [2] $1,600
ECU $1,200$2,855 Bank accounts as at 06/03/2015
CPB [1] $8,746
CPB [3] (-$23,068)$ (14,322) Chattels – [omitted] Street $15,150 Chattels – Property D $17,705 Chattels –Property B $26,855 [animal omitted] – [location omitted] $14,000 Total $1,984,900
Liabilities [omitted bank] ($444,550) [omitted] - lease ($1,744) Personal tax ($2,192) Total ($448,486)
Superannuation SunSuper accumulation a/c $119,762 [omitted] Pension $116,278 [omitted] accumulation a/c $101,797 [omitted] pension $1,614,458 Total $1,952,295
Interestingly, though there appears to have been no real argument raised in relation to Qantas Frequent Flyer points, both the applicant and the respondent sought to have them included at the very least as a financial resource available to each of the parties. They are unable to be converted to a specific amount but certainly do have value when used by one or other of the parties, either to upgrade the class of air travel that one or other might engage in, or to be utilised for the purchases of products distributed through the Qantas Frequent Flyer program. The frequent flyer points are able to be assigned by holders of such points to others, at least if there is some connection between the holder and the person to whom the points are being assigned, and for the purposes of completeness I will consider at the conclusion of these reasons whether to order the assignment of any such points, as it would seem impossible to actually attempt to quantify them.
Having determined as best I can the asset pool for distribution between the parties, it is necessary to engage in the consideration of the contributions of each of the parties under the various sub-headings detailed in section 90SM(4). The first contribution to be considered is the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship to the acquisition, conservation or improvement of any of the property of the parties. The evidence of the parties could not be more significantly different.
Quite simply, the applicant’s position is to suggest that what she brought into the relationship may not have had comparatively a value approaching that which was brought in by the respondent, but that over the period of the relationship, some eight to nine years, that there was a blending of the parties’ financial affairs and that she therefore contributed financially to the improvement and acquisition of the pool which now exists. The respondent could not disagree more vehemently. His position is to say that he brought the three remaining properties into the relationship and the property brought into the relationship by the applicant and subsequently sold by her were not the subject of contribution or improvement by the other party.
There is, with respect, strength in that argument. The applicant had only shortly prior to the commencement of the relationship purchased the property at Property A. It was certainly utilised as a residence by the parties for a period of about eight or nine months, but otherwise was generally rented or used for other purposes and income earned by those means was utilised for payments relating to the mortgage on the property. The other properties were previously owned by the respondent or were purchased as a result of utilising the proceeds of sale of other previously owned properties. The respondent suggests that each, to a significant degree, if not entirely, were responsible for the liabilities attaching to the properties that they held and that there was little, if any, responsibility in relation to joint properties.
Insofar as the residence at Property D, [D] is concerned, the parties do own that property jointly but it appears clear that the current liabilities attach almost entirely to that property and that the seed capital for purchase of that Property D property came from the sale of the respondent’s property in [omitted] which had been owned jointly between the respondent and his former wife and which was sold to effect a property settlement between them.
There are arguments raised by the applicant with regard to contributions of a financial nature during the relationship and certainly strong suggestions of moneys from accounts operated by the applicant being utilised for the payment of various outgoings and expenses in relation to at least the joint property of the parties. However, I indicated earlier in these reasons concerns that I had with regard to the bland assertion of figures as being utilised entirely for certain purposes. Quite simply, the applicant’s suggestion of payments and contributions being made from her accounts fell flat when it was clear that there were apparent transfers of sums from various accounts to other accounts without any real accounting able to be done. It is nonsensical to suggest that because a sum, say $100, passed from account A to account B and then from account B to account C and so on, mean that there were multiples of $100 payments or contributions.
As I noted earlier, I gained the distinct impression that the applicant was very quick to emphasise her contributions, both financial and non-financial and to minimise or seek to almost entirely disregard, the contribution made at the commencement of the relationship or the ongoing financial contribution of the respondent. It is therefore not a simple mathematical calculation that is required to be done in order to consider the contribution by each of the parties within the context of a financial contribution.
By the same token, it is disingenuous of the respondent to suggest that there has been no financial contribution by the applicant to the relationship and yet, in the same breath, argue that spouse maintenance should not be considered in relation to any settlement because of the applicant’s long-established and continuous work history. The applicant may not have brought as much into the relationship, financially, as did the respondent, nor have earned as much during the relationship as was earned by the respondent, but it cannot possibly be suggested that there was not a real financial contribution made at the commencement of and during the relationship between the applicant and the respondent.
The exercise that a Court enters into in attempting to take into account the direct and indirect financial contributions of the parties, is to balance, as best it can be done, all of those factors and to reach some final assessment, perhaps on a percentage basis, most commonly as to the value of the contribution of each of the parties. It is not however only a consideration of the direct or indirect financial contributions of each of the parties that must be looked at, but also consideration of the contributions in a number of other capacities, such as by way of partner, homemaker, parent and the like.
Unfortunately, in respect of those considerations, similar to those of a financial nature, the parties’ positions are worlds apart. The applicant emphasised the value of her contribution to the respondent’s [omitted] career and of the significant “behind-the-scenes work” that was done by her. She relied upon her own evidence in that regard and also, of course, upon the evidence of Mr and Ms G, Mr P and Mr B. As I noted in the commentary with regard to those witnesses, however, there was evidence to the contrary, particularly that of Mr W, Ms J and Ms H.
I am inclined to the view that somewhere between the positions taken by the applicant and her witnesses and the respondent and his witnesses lies the real contribution and support provided by the applicant to the respondent. It would be ludicrous to suggest that the applicant had done nothing in supporting her partner’s [omitted] career between 2004 and 2012. There were no doubt occasions where the applicant, because of her relationship with the respondent, attended functions either with the respondent or in his absence, which carried some [omitted] for the respondent. It is clear from the evidence of the respondent’s own wife, Ms E, that there are a multitude of calls made upon a [omitted]’s partner and whilst some may have been able to be avoided, it could not possibly be the case that there was no non-financial contribution by the applicant to the respondent’s [omitted] career.
By the same token, simply attending dinners and functions as a [omitted]’s partner, does not of itself constitute a non-financial contribution. Whether the partner attended or not, the [omitted]’s salary was to be paid and entitlements to a [omitted] pension were accrued. It does not correlate directly with the situation that is often seen of a partner taking on a significant role within the home and in respect of the care of children so as to enable the other partner to build a business or acquire assets. There is a distinction to be drawn.
As I indicated in these reasons, the impression that I gained, at least in part, was that the applicant was far more willing to participate to activities of a social nature and to accept the pluses of being a [omitted]’s partner, than to otherwise engage in activities of a more mundane character. In that respect, I note the photographs which were produced by the applicant relate to those social aspects of the respondent’s career, far more than the less glamorous obligations that arose. Whilst one would not expect as many photographs as would be taken at a social occasion, there appeared to be little if any indications of the applicant’s involvement in committees and such like that would arise in the respondent’s [workplace].
Additionally, rightly or wrongly, the applicant was employed for at least some time in the respondent’s office and accordingly was paid by [omitted] for the performance certain tasks within that office. It would indeed be irregular for the applicant to be paid for performing duties within the office and then to additionally seek some additional entitlement in relation to a property settlement, arising from contributions for which she had already been paid.
Ultimately, as is the case when attempting to quantify a percentage with regard to financial contributions, a discretion must be exercised to reach an assessment, wholistically, of the contributions made by each of the parties during the relationship to the acquisition and preservation of the assets which are available for distribution.
Interestingly, consideration must also be given to the contribution made by one party or other to the welfare of the family, including the contribution made in the capacity of homemaker or parent. Like the preceding two considerations, the parties’ views as to those contributions are entirely different. The applicant not only suggested that she was more significantly involved in the tasks and role of homemaker, but also emphasised the contribution that was made by her in the care and supervision of the respondent’s youngest son, [Z].
There was certainly some contest in relation to the homemaking contributions of each of the parties, but I am inclined to the view that whether it was the majority of the contribution or perhaps an equal contribution, it could not be suggested that there was not input during the relationship by the applicant, particularly when it would be clear that during [omitted], the respondent would be absent and the day-to-day maintenance of the home must fall upon the applicant. I have no difficulty in accepting the contributions in that respect would have been provided by each party in differing ways, but that it would be of a generally equal nature.
What does give rise to further difficulty in any assessment, however, is the contribution by the applicant in the role of step-mother to [Z]. The evidence was clear from the applicant that she had a close relationship with the child and that her contribution to the child’s life was significant during the time that she and the respondent were in a relationship. However, the respondent denied that that was the case and it is significant that the unchallenged evidence of Ms N paints a very different picture of the outward appearance of the relationship between the applicant and [Z], as well as indicating the applicant’s attitude to the parenting role.
As I noted earlier in these reasons, the comments of Ms N arise from her own observations of the interaction between [Z] and the applicant, and are totally at odds with the applicant’s suggestions of what actually existed.
In any event, it does not appear that [Z] remained in the household for any significant period of time during the relationship and in those circumstances, coupled with the apparently unchallenged observations of Ms N, I am not of the view that there is any additional consideration to be given as a result of a contribution by the applicant by way of parenting for [Z].
Section 90SM(4), like section 79(4), then goes on to require consideration to be given to the effect of orders upon the earning capacity of either party to the relationship as well as to consider other factors which are not relevant in respect of this relationship. What is necessary therefore, is to as best I can then consider the various forms of contribution made by each of the parties at the commencement of and during the relationship, and to attempt to assess and appropriate figure in relation to that contribution. The respondent, in his submissions, and of course using the figures relied upon by him, says that at the commencement of the relationship the applicant’s contribution amounted to a little less than 4 percent of the net non-superannuation assets.
The applicant’s submissions were based on a different premise altogether and suggested that contributions could not be accurately assessed, because of the failures of the respondent to provide full and frank disclosure. In any event, the suggestion of what would constitute the contributions of each of the parties was based upon an overall consideration of contributions in the range of 30 to 40 percent on the part of the applicant and of course, correspondingly, 60 to 70 percent on the party of the respondent.
Somewhere between those two figures, in my assessment, lies the true assessment of what constitutes the contributions by both of the parties. There cannot simply be a disregard of the enormous disparity between what each of the parties brought into the relationship at its commencement. If, as I indicated, the respondent’s figures were correct, then a contribution of 96 percent of the equity could not simply be disregarded, or so eroded over a period of 8 or 9 years, especially when there does not seem to have been significant other changes to the asset base.
However, to suggest that over that same 8 or 9 year period there was no contribution by the applicant in any way, financial or non-financial, so as to provide some basis for further entitlement, flies in the face of the evidence in this matter. In all the circumstances, I am satisfied that when considering the second stage of the four-step process, the contributions of the parties, that a proper assessment expressed as a percentage would be 85 percent to the respondent and 15 percent to the applicant.
As is clear, it is necessary then to consider any adjustment to that percentage as a result of consideration of the matters often referred to as the section 75(2) factors. Of course, in a de facto relationship however, those matters are to all intents and purposes reflected in the section 90SF(3) considerations. Looming large in those considerations are the matters included in subsections (a), (b), (f), (g), (j), (k), (m) and (n).
The age and state of health of the parties is significant here. The applicant is 49 years of age and the respondent is 65. One would normally have expected therefore that the applicant has considerably better long-term prospects than would be the case with the respondent. However, when combined with considerations in relation to issues of the health of the parties, along with the respondent’s future entitlements to a [omitted] pension, as well as the very different financial circumstances of the parties, a re-consideration of what might be considered the normal expectation must be looked at.
The applicant has serious health concerns. They cannot be ignored, especially when there are such clear indications of a diminished capacity for the applicant to engage in full-time employment. As I noted earlier in these reasons, the applicant suffers from a significant number of physical, as well as emotional or psychological difficulties. Ms C’s extensive report provided a helpful analysis of the applicant’s health and whilst she was unable to be definitive, noted that the applicant would have limitations placed upon her capacity for work.
There were also concerns expressed that the effects upon the applicant, dependent upon whether her difficulties gave rise to a best case, worst case, or most likely somewhere in between, would be determinative of what work the applicant might be able to engage in, as well as its effects upon her quality of life. It is impossible, with any degree of certainty, to assess what the future might hold for the applicant. It is clear however that whilst the applicant has until recent times engaged in various forms of work, it is becoming more and more difficult for her to do so. I do not accept the suggestion that was made on the part of the respondent to the effect that the applicant was simply not working at this time, for the purposes of furthering her claim, and that there was a real expectation that she would return to full-time work once the matter was determined. The weight of evidence available in relation to the applicant’s health cannot be ignored in that regard.
Unfortunately, like so many other aspects of this case, there are however other considerations to be looked at. They include the applicant’s obvious desire and determination to be involved in the workforce, as well as her obvious stoicism in respect of her difficulties and yet continued involvement in the workforce. Further, there is the concern that I touched upon earlier in the reasons with regard to her engaging in activities which would not be expected if the full impact of her difficulties was felt by her. Quite simply, there is, at least to some extent, a concern that I do hold with regard to the applicant not being as limited in her activities as might be suggested.
As I noted, there is also a very distinct difference between the financial circumstances of the applicant and the respondent, especially when consideration is given to the respondent’s future entitlement to a [omitted] pension. It is a financial resource available to him upon his retirement or failure to [occupation omitted], and it places the respondent in a privileged position as compared to the applicant, or in fact, many other members of the community generally. It is a factor which weighs in favour of the applicant, and needs to be considered in relation to any adjustment to the percentages assessed in relation to contribution.
Section 90SF(3)(g) relating to a court taking into account a standard of living that in all the circumstances is reasonable is difficult to assess in this case. I say that in the sense that, whilst the applicant and the respondent were in a relationship, their life was very different to that which would be experienced by most other members of society. It involved extensive travel and social engagements, and to seek to consider maintaining such a lifestyle would be impossible, certainly for the applicant post-separation, or from the perspective of the respondent, subsequent to him leaving [occupation omitted].
The applicant is of course entitled to the opportunity to maintain a reasonable standard of living. But that consideration must be looked at and balanced against the various other matters already looked at pursuant to section 90SM(4) and those other factors to be taken into account pursuant to section 90SF(3). Quite simply, when any pool is divided between the parties, each of course must receive less than what was available for the two. No matter what might be the ultimate outcome, I am satisfied that each party will be able to maintain a reasonable standard of living following the end of this relationship.
It is interesting that much of the argument in relation to any property settlement to be effected focussed upon the respondent’s entitlements arising pursuant to the [omitted] Superannuation Scheme. That is more so the case when the applicant’s contention was that she should receive some entitlements, in relation to the respondent’s [omitted] pension, in the vicinity of 30 percent of the splittable payment and the respondent’s position was to say that there should be no inclusion of any entitlement of the applicant in his [omitted] pension.
It is difficult to assess or place a figure upon what might be the applicant’s contribution to any entitlement that the respondent has to a [omitted] pension. It arises specifically from his role as an [omitted]. The respondent was first [occupation omitted] in 1996. He was then [occupation omitted] in the late 1990’s, as well as in 2001 and in October of 2004. The first three [omitted] were conducted prior to the relationship between the applicant and the respondent commencing. As I understand the scheme, the respondent’s entitlement to a [omitted] pension arose at the time of him being [omitted] in November of 2001. The relationship did not commence until early 2004.
Clearly, the parties were in a relationship in October 2004 when the respondent was [omitted] and continued in that relationship when the entitlement to benefits pursuant to the [omitted] Superannuation Scheme commenced to be received following the respondent’s retirement [omitted]. The applicant therefore, between 2007 and 2010 when the respondent again [omitted] and was successful, received some of the benefits that the respondent had already accrued from his previous time in the [omitted].
When the respondent was [omitted] in 2010, the parties remained in a relationship, but had separated prior to the respondent’s last [omitted] in September 2013. The question then of what might have been the contribution made by the applicant to the respondent’s entitlement in 2007 and future entitlement, either when he retires or is [omitted], is difficult to assess. It is no doubt one of the reasons that the respondent’s submissions included specifically a suggestion that if there was to be some entitlement to an interest in the respondent’s [omitted] Superannuation Scheme, it should be significantly reduced.
In part, that arises from the agreement that the respondent’s [omitted] Superannuation Scheme entitlements had a family law value of $784,305 at the time of the commencement of the relationship, and a family law value of $1,706,491 at separation. Interestingly, the family law value of the respondent’s interest in the [omitted] Superannuation Scheme continues to reduce because of the respondent’s age. It is for this reason that it is suggested that the family law value for superannuation should not be incorporated in any actual figures utilised for the purposes of distribution because it is not an amount that can be commuted into a lump sum and is only able to be received by way of regular pension instalments.
The respondent’s entitlement to that pension existed prior to the relationship commencing between he and the applicant. The entitlement continues into the future and is not, with respect, to what is submitted by the applicant, something that has been contributed to by her in the sense of increasing the respondent’s future entitlement or financial resource. She no doubt expected during the relationship to receive the benefits of the [omitted] pension and, in fact, did so during the period 2007 to 2010, when the respondent was not a member of [omitted]. It is reasonable for the applicant to expect some future entitlement in relation to the respondent’s [omitted] pension, but it does not, in my assessment, arise from any specific contribution made by her to the acquisition of that pension.
The entitlement arises far more as a result of the consideration detailed in section 90SF(3)(k). The duration of the de facto relationship and the extent that it has affected the future earing capacity of the applicant. The applicant’s life changed when she commenced the relationship with the respondent and changed again, radically, when the relationship ended, 8 or 9 years later. She had been in that relationship, and though there is dispute as to her contributions, it is clear that there was contribution and that the relationship with the respondent affected her life as it previously was, and changed her expectations. There is, in my assessment, clearly a consideration there in respect of the distribution to be effected between the applicant and the respondent, but also a clear distinction to be drawn between the distribution of immediately realisable assets and quantifiable superannuation entitlements, as opposed to the interest in the [omitted] Superannuation Scheme.
There are a number of matters therefore that weigh in favour of an additional percentage to be awarded to the applicant. There are, however, factors that also weigh in favour of the respondent. In particular, it is necessary to recognise that the respondent has re-married, and consequently has responsibilities now in respect of providing for the support of his wife and step-daughter. Additionally, he continues to provide support for his son [Z], as well as at least notionally, some support for his older children. There is also a need to recognise the ongoing obligations that the respondent has accepted in respect of providing for his elderly mother, and a sister with particular needs. They are all factors that weigh in favour of the respondent’s financial circumstances being increased.
Finally, it is necessary to consider the orders that will be made in relation to this matter and how they might affect the financial circumstances of each party. It is clearly acknowledged that it is proper to effect a property settlement between the applicant and the respondent and that the orders that the court will make will adjust the current circumstances of the applicant and the respondent. On the face of it, it will improve the applicant’s financial standing and will either reduce the respondent’s financial resources or lead to him necessarily being required to borrow funds to facilitate any payment to the applicant. The orders that will therefore be made in relation to a property settlement also need to be taken into account in the assessment of any variation as to the percentage distribution between the parties.
It is not in my assessment a significant adjustment that would arise pursuant to that consideration but it is a factor that would be favourable to the respondent in whatever way it might be included.
The assessment of any variation or adjustment that should be made is a balance between factors weighing in favour of the applicant and factors that weigh in favour of the respondent. In submissions, the applicant has suggested that any adjustment should be in the vicinity of 15 to 25 percent and the respondent suggests that no adjustment is warranted. Similar to the consideration of contributions and how they might be assessed, I am of the view that somewhere between the two stated positions lies the real figure.
In this matter, I am satisfied that an adjustment in favour of the applicant of a further 7.5 percent, at least in relation to the immediately available assets and quantifiable superannuation, is appropriate. I am not however of the view that there should be any adjustment in relation to any split of the [omitted] Superannuation Scheme over and above an interest of 15 percent.
Accordingly, the distribution to be effected between the applicant and the respondent in relation to assets, other than the respondent’s interest in the [omitted] Superannuation Scheme, is in my assessment 77.5 percent in favour of the respondent and 22.5 percent in favour of the applicant. I should note, as I referred to it earlier in this judgment, that a distribution of any interest in frequent flyer points should also be apportioned in accordance with this percentage. Insofar as any entitlement held by the applicant in the respondent’s [omitted] Superannuation Scheme is concerned, I am of the view that 15 percent represents a just and equitable distribution in all the circumstances.
Insofar as any order is sought with regard to further adjustments in respect of any monies to be paid, including as specifically sought by the respondent for an amount representing 50 percent of the costs of the parties’ joint valuations and/or mediation expenses, I am satisfied that to seek to further alter the orders that are detailed herein is unnecessary and that each party should, as required pursuant to these orders, be otherwise solely responsible for any liability held in their name as at the date of these orders.
Accordingly, the orders at the commencement of these reasons reflect the distribution that I have determined is in all the circumstances just and equitable.
I certify that the preceding two hundred and fifteen (215) paragraphs are a true copy of the reasons for judgment of Judge Coker
Associate:
Date: 13 October 2015
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Remedies
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Statutory Construction
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