Visser & Drost (No 3)
[2024] FedCFamC2F 118
•20 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Visser & Drost (No 3) [2024] FedCFamC2F 118
File number(s): PAC 4220 of 2022 Judgment of: JUDGE STREET Date of judgment: 20 February 2024 Catchwords: FAMILY LAW - PROPERTY – about 22 months minimal and intermittent homemaker contributions by wife - inheritance of home by husband after end of matrimonial relationship – no financial contributions by wife to home – all outgoings homemaker contributions by husband including to daughter of wife - financial and occupation benefits obtained by wife after separation – husband excluded from home by condition of ADVO - orders for wife and daughter to vacate home - post vacation intimidation of husband by wife - unreasonable debts incurred by wife - alternation of property interests Legislation: Family Law Act 1975 (Cth) Cases cited: AJO & GRO (2005) FLC 93-218
Babett & Falconer (2015) FLC 98-067
C & C (2005) FLC 93-220
Dickons & Dickons [2012] FamCAFC 154
DJM v JLM (1998) FLC 92-816
Dovgan & Dovgan [2021] FamCA 306
Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143
Jabour & Jabour [2019] FamCAFC 78
Kildea v Kildea (2007) 38 Fam LR 347
Kowaliw & Kowaliw (1981) FLC 91-092
Manolis v Manolis (No 2) [2011] FamCAFC 105
Perrin & Perrin (No 2) [2018] FamCAFC 122
Stanford v Stanford (2012) 247 CLR 108
Townsend & Townsend (1995) FLC 92-569
Visser & Drost (No 2) [2023] FedCFamC2F 1368
Division: Division 2 Family Law Number of paragraphs: 169 Date of hearing: 16 November 2023 Place: Sydney Counsel for the Applicant Ms L Judge Solicitor for the Applicant Bell Lawyers Respondent Appeared in person ORDERS
PAC 4220 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR VISSER
Applicant
AND: MS DROST
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
20 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Within ninety (90) days from the date of these Orders the Applicant Husband shall pay to the Respondent Wife the sum of $83,000 by way of property settlement.
2.That for the purpose of Order 1, the sum to be paid to the Respondent Wife is calculated as follows:
2.1The wife is entitled to a payment of $102,000 by way of property settlement, however that sum is reduced by sum of $10,000 already paid to the Respondent by the Applicant by way of interim payment in accordance with Orders dated 31 July 2023;
2.2Pursuant to Order 5 made 31 July 2023 the Respondent is ordered to pay to the Husband the sum of $9,000 being costs occasioned and thrown away by virtue of the adjournment of the proceedings on that day and the Respondent’s obligation to pay that costs order is set off against the $102,000 awarded by way of property settlement and is deemed paid.
3.The Applicant Husband is declared to be the sole owner in law and equity of the property situated at B Street, Suburb C more particularly described in Certificate of Title Folio Identifier: … (the Suburb C property).
4.That in the event of default of payment by the Applicant Husband pursuant to Order 1, then the Applicant Husband shall do all acts and sign all documents necessary to list the Suburb C property for sale with a real estate agent and listing price as nominated by the Applicant Husband and the following shall apply:
4.1The Solicitor or Conveyancer nominated to act on the sale of the property shall be nominated by the Applicant Husband.
4.2If a purchaser makes an offer on the property which is more than 90% of the listing price, the Applicant Husband may agree to accept such offer.
4.3Upon completion of the sale, the nett proceeds shall be applied in the following order and priority:
4.3.1In payment of any Agents commission or other selling costs associated with the sale.
4.3.2In payment of rates and utilities outstanding at the time of sale.
4.3.3In discharge of the mortgage encumbering the Suburb C property.
4.3.4In payment to the Respondent Wife the sum outstanding as provided for in Order 1.
4.3.5In payment to the Applicant Husband the balance of proceeds of sale thereafter remaining.
4.4In the event the Suburb C property does not sell by private sale within three (3) months from the date of these Orders then the Applicant Husband shall do all acts and things and sign all deeds, documents and instruments as may be necessary to list the Suburb C property for sale by public auction, with an auction agent, reserve price and sale price nominated by the Applicant Husband, and the Applicant Husband shall be responsible for all costs and expenses of the auction payable prior to the auction sale and following such sale the proceeds of sale be applied as provided in Order 4.3
5.i. These orders are binding on the Trustee of the public Sector Superannuation Scheme.
ii.In accordance with section 90XT(1)(a) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of the Applicant Husband from his interest in Superannuation Fund 1, Member number …, the Respondent Wife is entitled to be paid by the Trustee of Superannuation Fund 1 the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $50,000 and there is a corresponding reduction in the entitlement the Applicant Husband would have had but for these Orders.
iii.Order 5ii has effect from the operative time and the operative time is 4 business days after the service of these Orders on the Trustee of Superannuation Fund 1.
6.Subject to these Orders, the Applicant Husband and the Respondent Wife shall be and hereby are declared to be the sole and absolute owners at law and in equity of:
(a)All items of furniture, furnishings, chattels and jewellery in their possession, custody and control.
(b)All monies held in cash or in bank accounts solely in their respective names.
(c)All motor vehicles held in their respective names.
(d)All contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent, or expectant, held in their possession, title or name, which are not otherwise dealt with in these Orders.
7.Except as specifically provided by all these orders to the contrary, the Applicant Husband hereby indemnifies the Respondent Wife from and in respect of all actions, claim, suits and demands as may be made against the Respondent Wife in relation to all liabilities on the name of the Applicant Husband.
8.Except as specifically provided by all these orders to the contrary, the Respondent Wife hereby indemnifies the Applicant Husband from and in respect of all actions, claim, suits and demands as may be made against the Applicant Husband in relation to all liabilities on the name of the Respondent Wife.
9.Except as specifically provided or by an order comprised in these orders to the contrary, each of the Applicant Husband and the Respondent Wife release the other from all debts owing from one to the other.
10.That in the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these Orders then pursuant to section 106A of the Family Law Act 1975 (Cth) that the Registrar of the Federal Circuit and Family Court of Australia, shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts are necessary to give validity and operation of same.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
RESERVE REASONS FOR JUDGMENT
JUDGE STREET
INTRODUCTION
These are property proceedings under Part VIII of the Family Law Act 1975 (Cth) (“the Act”), that were commenced on 3 August 2022. The matter has a long and unsatisfactory history, due the conduct, in substance, of the respondent, that has been touched upon in the interim decision of this Court, being Visser & Drost (No 2) [2023] FedCFamC2F 1368.
The proceedings were listed for final hearing on 16 November 2023, pursuant to orders made by this Court on 31 July 2023.
In compliance with those interim orders, the respondent did vacate the Suburb C property, and did put on an amended response and an affidavit. The respondent was, however, unrepresented. At the commencement of the hearing, the Court explained to the respondent the nature of the hearing that would take place.
Due to a section 102NA order being in place, and given that the respondent is self-represented, the respondent was not permitted to cross-examine the applicant. The respondent indicated that she had no desire to cross-examine the expert.
The applicant is 50 and the respondent is 48. Although married in 2016, the relationship started deteriorating in mid 2018, and the parties separated under the same roof on 17 September 2019, with a divorce order made in 2022. The respondent left the home on 22 July 2020 and the applicant, with her daughter, left the home on 18 September 2023. The respondent travelled overseas with her daughter, from an earlier relationship, born in 2004 and the period of the homemaker contributions by the respondent that were minimal and intermittent was 22 months. There were no financial contributions by the respondent to the home inherited by the applicant, upon his mother’s death in 2021 and transferred into his name in late 2022.
CHRONOLOGY
Date Event 1973 Applicant Husband is born. 1976 Respondent Wife is born. 1998 Applicant marries Ms E. 2000 Applicant and Ms E purchase property at F Street, Suburb G. Suburb G property is purchased in applicant’s sole name for $190,000. 2004 Respondent’s daughter from the previous relationship, Ms H, is born in Country D. 2011 Applicant and Ms E separate. A divorce order is made. 2012 Parties communicate online 2013 Parties meet for the first time in person when husband travels to Country D. Mid 2015 Consent property orders made by Federal Circuit Court at Parramatta in relation to the division of assets between the applicant and Ms E. Mid 2015 Applicant receives by way of property settlement a sum of $169,839 being a cash payment from Ms E in relation for the applicant’s interest in the Suburb G property. 2015 Applicant applies his property settlement funds received from Ms E towards renovating the Suburb C property. Applicant estimates he spent $90,000 towards the renovations. 2016 Parties are married in Australia.
Respondent stays in Australia for approximately one month after the party’s wedding. The respondent and her daughter then travel back to Country D.2016 Applicant’s mother is admitted into hospital, where she remained for a few weeks. Arrangements are made by hospital staff for the NSW Trustee and Guardian to be appointed as the applicant’s mother financial manager.
In 2016 after being released from hospital the applicant’s mother was placed into J Nursing Home. The applicant removed his mother from the Nursing Home due to costs and she returned to occupy the Suburb C property with him.Late 2016/ Early 2017 The applicant and respondent placed an advertisement in a newspaper to secure a carer for the applicant’s mother. Two carers are then arranged and cared for the applicant’s mother from late 2016 or early 2017 until mid-2017. Mid 2017 Applicant’s mother is cared for at K Nursing Home where she remained until 2021 being the date of her death. 2016-2017 Respondent and her daughter remain in Country D and return to Australia in or about 2017. Whilst the respondent and her daughter were in Australia in 2017, they occupied the Suburb C property with the applicant. The respondent’s daughter, Ms H was enrolled to attend school.
The applicant tries to assist the respondent by gaining employment at a Country D Nursing Home in Suburb C. The respondent is hired and given a start date and later identified as not suitable for the role due to her limited English.2017 Respondent travels to Australia from Country D then returns to Country D in 2018. Early 2018 Husband purchases airline tickets for the respondent and her daughter to travel to Country D. Mid to late 2018 Party’s relationship begins to deteriorate. 2018-2019 Applicant attends to payment of costs associate with visa being issued for respondent and her daughter. Mid 2019 to late 2019 Applicant paid $840 a fortnight to NSW Trustee and Guardian Early 2019 Party’s cease sharing a bed and being intimate. Mid 2019 Visas are granted and issued to the respondent and her daughter. Late 2019 Parties separate under same roof- Provisional ADVO made against the applicant for alleged protection of the respondent- communication respondent wants divorce. Late 2019 to mid 2021 Applicant paid $1,100 per fortnight to NSW Trustee and Guardian Late 2019 ADVO against applicant for protections of respondent is finalised at Suburb C Local Court with applicant accepting the AVO on a without admissions basis. March 2020 Applicant notices a letter to the respondent from Services Australia in the mailbox which contained a healthcare card. Mid 2020 Parties and respondent’s daughter Ms H travel to another region for a day out. The respondent slapped the applicant on the face, back of head and upper body. Mid 2020 Provisional ADVO taken out against the respondent for the protection of the applicant. Mid 2020 The respondent provides statement to Police relating to events of the day out. Mid 2020 Due to condition in ADVO obtained by the respondent -the applicant vacated Suburb C property and respondent remains in occupation of the Suburb C property with her daughter. 2020-2023 The respondent continues to send emails and texts to the applicant. Late 2020 Applicant provides statement to the police relating to events of the day out in mid 2020. Late 2020 ADVO taken out for the protection of the applicant against the respondent listed at Suburb C Local Court and dismissed. 2021 Death of applicant’s mother. 2021 NSW Trustee and Guardian serves eviction notice on the respondent. 2022 Order for divorce is made 18 December 2021 to 30 March 2022 Applicant pays respondent $650. Applicant then paid to the respondent $340 per week pending the parties attendance at mediation. March 2022 Parties scheduled to attend mediation however it is postponed due to respondent instructing new solicitor. Applicant continues to make weekly payments to respondent of $340 until April 2022 being the postponed mediation date. Mid 2022 Applicant secures rental accommodation at Suburb G.
Applicant pays $390 rent per week and continues to pay Council rates and expenses associated with the respondent’s occupation of the Suburb C property.3 August 2022 Applicant commences these proceedings by filing an Initiating Application and support documents. 11 August 2022 Notice of address for service filed by the respondent’s newly appointed solicitors, M Lawyers. October 2022 Title Search for Suburb C property still identifies the property as registered in the joint names of the applicant’s mother and father. 26 October 2022 Suburb C property is jointly valued by L Valuers, value identified as $775,000 1 November 2022 Parties attend conciliation conference with SJR. Agreement in principle is reached during the conference. 4 November 2022 Wife withdraws her consent to the agreement in principle reached at the conciliation conference. 18 November 2022 Title Search identifies Suburb C property is registered in the sole name of the husband. 28 November 2022 Proceeds are listed before a JR and directions are made for the preparation of the matter for compliance and readiness hearing. Respondent is legally represented. 15 December 2022 Respondent’s solicitors file a notice of ceasing to act (M Lawyers). 19 December 2022 Further request is received from respondent for a one-time payment of $300-$400 21 December 2022 Applicant agrees to advance $4000 to the respondent as part of overall settlement amount 1 February 2023 Matter is listed before Judge Dunkley for compliance and readiness hearing and is allocated final hearing dates.
Respondent appears in person.17 April 2023 Notice of Address for Service filed by the respondent’s newly appointed solicitors, R Lawyers 1 May 2023 Notice to Produce is filed and served on behalf of the husband addressed to the wife. 11 & 12 May 2023 Matter is listed for final hearing before Judge Street.
The final hearing is adjourned due to respondent’s adjournment application on conditions and relisted for 31 July and 1 August 2023.31 July 2023 Final hearing is vacated on conditions due to respondent’s adjournment application.
Respondent is ordered to vacate the Suburb C property on or before 18 September 2023.
The applicant is ordered to pay the respondent $10,000 to assist with moving costs.
Final hearing is relisted for 16 & 17 November 2023.18 September 2023 Respondent moves out of the Suburb C property and begins to sublet 16 November 2023 Final hearing before Judge Street EVIDENCE OUTLINE
The following affidavits were treated as read, with annexures treated as being in evidence:
(1)Affidavit of Applicant Husband dated 2 May 2023;
(2)Affidavit of Applicant Husband dated 11 August 2023;
(3)Affidavit of Applicant Husband dated 14 November 2023;
(4)Affidavit of Applicant Husband with Valuation Report dated 15 November 2023;
The Court also received into evidence each of the affidavits by the respondent, as well as an affidavit by an expert, identifying the value of the Suburb C property.
(1)Affidavit of Respondent Wife dated 26 October 2023;
(2)Affidavit of Respondent Wife dated 8 November 2023;
(3)Affidavit of Respondent Wife dated 15 November 2023; and
(4)Affidavit of Mr N dated 15 November 2023.
(5)Affidavit of Ms H 26 October 2023.
The Court received into evidence and marked the following as exhibits:
·Exhibit A: Applicant Husband’s Financial Statement dated 2 May 2023;
·Exhibit B: Exhibits annexed to Applicant Husband’s Affidavit dated 2 May 2023;
·Exhibit C: Respondent Wife’s Financial Statement dated 16 November 2023;
·Exhibit D: Schedule of Transactions of Concern appearing in Statements for CBA account number ending #...94 held in the name of Ms H;
·Exhibit E: Schedule of Cash Deposits into CBA account ending #...94 held in the name of Ms H;
·Exhibit F: Schedule of Transfers from CBA account ending #...94 held by Ms H to account ending #...10 held by Respondent Wife.
·Exhibit G: Transaction Summaries for the CBA account ending #...94.
CURRENT ASSETS AND LIABILITIES
The Court finds that the property of the parties is as identified in the following balance sheet.
Ownership Description Applicant Husband’s Value Respondent Wife’s Value ASSETS H B Street, Suburb C $850,000.00 H CBA Account ending …04 $11,978.00
H CBA travel money account $413.00 H Motor Vehicle 1 E $2,500.00 H Home contents E $40,000.00 W Bank Accounts NK SUB-TOTAL $904,891.00 LIABILITIES N/A N/A N/A N/A SUB-TOTAL N/A N/A SUPERANNUATION Member Name of Fund Type of Interest Applicant Husband’s Value Respondent wife’s Value H Superannuation Fund 1 $384,781.00 TOTAL NET ASSETS INCLUDING SUPERANNUATION $1,289,672.00 APPLICANT’S EVIDENCE
The applicant is now 50 years of age, and the respondent is 47 years of age. The parties met on social media in 2012 and met in person in 2013. The parties were married in 2016 and separated according to the applicant’s affidavit on 18 July 2020. However, the Court finds that the parties in fact separated on 17 September 2019. The Court finds, for reasons explained below, that the date in the applicant’s affidavit was when the applicant was required to leave the home due to a condition of an ADVO and that the matrimonial relationship was at an end by 17 September 2019. A divorce order was made in 2022. There are no children of the relationship. The applicant wants to retain the post-breakdown inherited property at B Street, Suburb C (“the Suburb C property”).
The applicant has returned to the Suburb C property and has been intimidated by the respondent attending to demand money after the respondent left the home in September 2023 pursuant to Court orders. The applicant has remained single and has not re-partnered. The applicant is currently employed on a full-time basis as a public servant. After the deaths of the applicant’s parents, the applicant became the registered owner on Title of the property at B Street, Suburb C in late 2022. From about mid-2018 the relationship between the applicant and the respondent began to deteriorate and the parties stopped sharing a bed and being intimate early 2019 and separate on 17 September 2019.
The applicant was previously married in 1988 and separated from his then partner in 2011. The respondent settled his earlier marriage property proceedings in mid-2015, and he received a cash property settlement of $169,839.00. The applicant spent approximately $90,000.00 of those settlement monies on renovations undertaken at the Suburb C property.
The applicant travelled to Country D for 5 weeks in mid-2013 and spent time with the respondent on a daily basis and met her daughter then 9 years of age. The applicant provided some financial assistance whilst in Country D in 2013. The parties maintained daily contact via Skype and the applicant travelled to Country D on several occasions and stayed with the respondent and her daughter in Country D. The parties travelled to Australia and stayed usually about a month. The applicant paid the cost of those trips for the respondent and her daughter. The applicant financially assisted the respondent by transferring money.
In 2016 the parties were married and the applicant paid the costs associated with the wedding. The respondent stayed in Australia for approximately one month after the wedding and then she and her daughter returned to Country D. The respondent and her daughter returned to Australia in 2017 and travelled back to Country D in 2018. The applicant met the costs for visas for the respondent and her daughter. The parties lived with the applicant’s mother at Suburb C upon the respondent’s return to Australia in 2017.
During the marriage the applicant worked full time and was the sole income earner and met all the family’s financial needs and day to day living expenses. The applicant financially supported the respondent’s daughter’s schooling, uniform, related school expenses and fees. The respondent did the majority of home duties and cared for her daughter. The applicant met the medical costs for the respondent that were not covered by Medicare.
The applicant transferred funds into the respondent’s bank account, and there were times where the applicant withdrew cash and gave the cash funds directly to the respondent. The respondent spent a lot of time at a club, and mostly attended the club without the applicant. The applicant attended the club with the respondent on one occasion and identified that the respondent withdrew $300.00 from an ATM machine using an OTP Key card. The OTP Key card is for a Country D bank and the applicant observed the respondent using the money to gamble on gaming machines.
In 2019, the applicant received a call from the respondent to attend the club due to the respondent having won considerable amounts of money. The respondent paid for dinner using large wad of $100.00 bills. In addition to the gambling of monies, the applicant identified that the respondent has spent money on regular alcohol purchases.
The applicant lived at the Suburb C property with his parents for a large part of his life, apart from the ten years he was with his then former partner. In 2015, when the applicant’s father passed away, the Suburb C property then became solely occupied by the applicant and his mother. The applicant does not have any siblings.
When the applicant’s mother passed away, she did not have a will. At the time of the applicant’s mother’s death, the applicant’s father was still registered as an interest holder in the Suburb C property. The applicant became the registered owner in late 2022. On 26 October 2022, the Suburb C property was jointly valued by L Valuers for the purpose of these proceedings, and the property was valued at $775,000.00. The property is unencumbered.
The applicant deposes that after several months in Australia, the respondent became verbally and physically violent towards him. The respondent was also very critical towards the applicant and called the applicant names in Country D language. The applicant also identified that the respondent was very fiery tempered during their relationship and on one occasion, the respondent damaged the floodlights at the front of the Suburb C property and damaged the applicant’s tablets and other possessions due to rage. During the course of the relationship in 2018, the respondent hit the applicant in the face, head and torso with an open hand, spat and choked applicant.
The applicant identified that the respondent relied heavily on alcohol throughout the relationship and the respondent drank two bottles of wine at least once per fortnight. From about mid to late 2018 the relationship between the applicant and the respondent began to deteriorate and the applicant and respondent stopped sharing a bed and being intimate in early 2019 and that the matrimonial relationship ended on 17 September 2019 when the respondent communicated that she wanted a divorce.
In late 2019, a provisional Apprehended Domestic Violence Order (ADVO) was made against the applicant for the protection of the respondent and the respondent communicated as to wanting a divorce. The ADVO was finalized in late 2019 and the applicant agreed to the ADVO without admissions.
In or around March 2020, the applicant identified that the respondent received a letter from Services Australia in the mailbox which contained a health care card. The applicant knew that the respondent was not eligible for the card. The applicant took the card and filed a report. The applicant contacted the relevant body in relation to the fraud and the applicant filed out a Module P form which the respondent signed, to state that the parties were in a relationship. The applicant identified that it would have terminated any payment the respondent would have been claiming fraudulently.
The applicant confronted the respondent regarding her receiving the Centrelink payments. The applicant asked what the respondent was doing this for and whether it was financial gain, to which the respondent responded with “yes”.
In mid-2020, the applicant, the respondent, and the respondent’s daughter travelled to another region for a day trip. The applicant was driving and when he took a wrong turn, the respondent began slapping the applicant in the face, back of his head and upper body. The applicant reported the incident to Suburb C Police out of fear that the respondent would continue to further verbally and physically abuse him, as well as damage property at the applicant’s mother’s home. The applicant was aware of the ADVO conditions which were placed at the time. The applicant then reported the incident to the Police and the applicant deposes that the respondent reported the incident to the Police in a way that the applicant was the aggressor.
In late 2020, the ADVO for the applicant’s protection was listed at Suburb C Local Court and was dismissed.
As a result of the incident in mid-2020, the Police filed an application to vary the ADVO that was in place against the applicant for the protection of the respondent. The Application to vary sought a condition that the applicant and respondent do not live in the Suburb C property and that the applicant does not approach the respondent, unless through the respondent’s lawyers. Consistent with that condition and due to the family violence by the respondent and conflict by the respondent, the applicant vacated the Suburb C property on 22 July 2020.
Since the applicant vacated the home, the respondent continued to send emails and text messages to which the applicant did not respond to. The communications that were sent have been in the Country D language or have consisted of video clips from YouTube. The applicant provided the emails and text communications to his solicitor and instructed that arrangements be made to have them translated into English.
On four occasions since the parties separated, the respondent has accosted and intimidated the applicant for money. On one of those occasions, the respondent entered the car using her spare key whilst the applicant was parked at the supermarket car park in Suburb C. The respondent wanted to talk to the applicant and applicant asked the respondent to get out. The respondent wanted to be intimate again with the applicant, to which the applicant refused. The respondent refused to get out of the car, the applicant drove to his parents’ home and dropped the applicant home.
The applicant identified that the respondent hated living in Suburb C and wanted to live in the city. The applicant told the respondent that financially there is nowhere else that they can go and live and it is not something they can afford to do, and on numerous occasions, the respondent packed a suitcase and threatened to leave the Suburb C property and the applicant tried their best to calm the respondent down and unpack her bags.
The applicant’s mother did not have a Power of Attorney or Enduring Guardship documents. In or about 2016, the applicant’s mother was admitted into hospital where she remained for two weeks. While the applicant’s mother remained in hospital, arrangements were made by the hospital for the NSW Trustee and Guardian to be appointed as the applicant’s mother’s financial manager.
The applicant’s mother lived and was cared for at K Nursing Home from mid-2017 and until the time of her passing. At the time of the applicant’s mother passing, the NSW Trustee and Guardian remained as her financial manager. Whilst the applicant’s mother was cared for at the nursing home, the applicant continued to occupy the Suburb C property with the respondent and the respondent’s daughter.
From mid-2019 to late 2019, the applicant paid $840.00 per fortnight directly to the NSW Trustee and Guardian. The applicant also paid a sum of $1,100.00 per fortnight to the NSW Trustee and Guardian during the period of late 2019 to mid-2021. These payments were directly debited from the applicant’s income.
In mid-2021, correspondence was received from the NSW Trustee and Guardian relating to the service of an Eviction Notice on the respondent. Further correspondence was received from the NSW Trustee and Guardian confirming that a Notice to Vacate had been served on the respondent one week later, and despite the Eviction Notices being served to the respondent, the respondent continued to occupy the Suburb C property.
After the applicant vacated the Suburb C property in July 2020, the applicant was living with friends for two years. In mid-2022, the applicant entered into a Residential Tenancy Agreement and secured a rental property and the applicant paid rent of $390.00 per week. The applicant continued to pay the Council rates associated with the Suburb C property including home and contents insurance, water service and usage fees and the electricity account which are all a result of the respondent and her daughter occupying the Suburb C property.
The applicant has identified that two private mediations occurred with the respondent, however, they were unsuccessful. On 18 December 2021, the applicant paid the respondent, by way of bank transfer, a sum of $650.00. This amount was transferred directly to the respondent’s bank account and was done by agreement pending their attendance at mediation. The applicant further transferred a sum of $340.00 per week to the respondent and these payments were made during the period of 18 December 2021 to 30 March 2022.
Mediation was scheduled to occur in March 2022. However, mediation was postponed to April 2022. The applicant continued to pay the respondent a sum of $340.00 per week until April 2022 and made a final weekly payment of $480.00 on 20 April 2022. On 1 November 2022, both parties attended a Conciliation Conference with a Senior Judicial Registrar, and an agreement was reached. However, on 4 November 2022, the respondent withdrew their consent and the matter remained unresolved. On 19 December 2022, the applicant’s solicitors received an email from the respondent with a request for a onetime payment of $300.00 to $400.00. On 21 December 2022, the applicant instructed their solicitor to respond and confirmed that they agreed to advance $400.00 on the basis it would be considered as part of the overall settlement amount.
On 9 September 2022, the respondent filed a Financial Questionnaire in these proceedings, and at point 6 of the Questionnaire, the respondent deposed to the following:
The Respondent sold her [Country D] property in or around 2017, approximately two months before the parties married, for approximately $53,000.00 AUD. The Applicant demanded that the funds be transferred to his bank account, to demonstrate to NSW Trustee and Guardian that he had access to fund so that he would not access his mother’s funds. The Respondent refused and she exhausted these funds to support herself and her daughter. The Respondent was required to pay for her own basic necessities, with the minimal funds she received from Centrelink.
The applicant denies the allegation regarding the demand of funds from the sale of the Country D property to be transferred to their bank account. The applicant asserts that they have not been provided with any information regarding the property owned by the respondent, except for a conversation prior separation.
On 31 July 2023, the applicant made an interim payment of $10,000.00 to the respondent as a result of orders made by this Court on 31 July 2023. On 7 August 2023, a sum of $10,000.00 was transferred from the Trust account of Bell Lawyers to the respondent’s bank account.
On 18 September 2023, the respondent vacated the Suburb C property, and the applicant made arrangements through their lawyers to collect the keys from the respondent. The applicant received the keys on the evening of 18 September 2023 and on 19 September 2023, the applicant took possession of the Suburb C property.
The applicant deposed that the Police contacted the applicant in late 2023 in relation to the ADVO against the applicant for the protection of the respondent. During the telephone conversation with the Police, the applicant deposes that the ADVO against him was extended because the respondent was still in fear of him. The applicant consented to having the ADVO being extended.
In late 2023, the respondent attended the Suburb C property whilst the applicant was home. The respondent asked for money from the applicant, but the respondent was asked to leave. The respondent then left the Suburb C property, and on the same night re-attended the property. The respondent was uninvited and persisted with knocking on the front and back doors as well as the side windows. The respondent then became forceful with each knock. The next day, the applicant prepared and filed an Application for ADVO at the Suburb C Local Court. However, it was not approved.
Around one week later, the respondent attended the property again and knocked on the back glass door and the applicant called the Police and remained on the phone with the operator until the Police arrived at the Suburb C property. Following these events, in late 2023, a Provisional Apprehended Domestic Violence Order was made against the respondent for the protection of the applicant.
The applicant deposes that he did not give permission to the respondent to attend the Suburb C property and denies that any voicemail messages were sent to the respondent. On the Application made by the Police in support of the ADVO for the applicant’s protection, the respondent alleges the applicant and respondent had sexual intercourse following an argument. The applicant deposes that he did not have sexual intercourse with the respondent. Following these events, in late 2023, a Provisional Apprehended Domestic Violence Order was made against the respondent for the protection of the applicant.
The Apprehended Domestic Violence Order Application and charge brought against the respondent was listed at the Suburb C Local Court in late 2023 and the order was made, and the respondent was ordered to pay a fine.
On 17 November 2023, the applicant provided a valuation report through an affidavit for the Suburb C property for the current fair market value of the Suburb C property being $850,000.00.
As a result of these proceedings, the applicant incurred legal costs at a total sum of $16,005.00 (including GST) for having a Solicitor and Counsel to represent the applicant at the hearing on 31 July 2023. On 2 August 2023, a Tax invoice was issued to the applicant by Lachlan Macquarie Chambers which provided that the applicant owed $10,890.00 because of use of a Barrister in these proceedings. Additionally, on 2 August 2023, a Tax invoice was issued to the applicant by Bell Lawyers which provided that the applicant owed $5,115.00.
RESPONDENT’S EVIDENCE
The respondent is currently 47 years of age and has a daughter from a previous relationship, who is currently 19 years of age. The relationship between the parties, according to the respondent’s affidavit dated 26 October 2023, lasted for eight years and that the parties lived together for six years, including the time before the marriage. The parties were married in 2016 and separated in mid-2020 due to an AVO and divorced in 2022. The respondent is seeking a total sum of $400,000.00.
In 2014, the respondent and her daughter moved to Australia, and the respondent only then found that the applicant’s parents own the house, and the guardianship office manages all of the applicant’s parents’ assets. The current Apprehended Domestic Violence Order against the applicant for the protection of the respondent is in place until late 2024.
In 2012, the applicant wrote to the respondent via social media and saying that he wanted to get to know the respondent for a serious relationship. The applicant was living in Australia at that time and the respondent and her daughter was living in Country D at that time.
The respondent used to work three jobs, and after the parties had known each other for five months, the applicant wanted to financially help the respondent. After the respondent left the two other jobs, the applicant supported the respondent by transferring between $300.00 - $500.00 a month to the respondent and increased their contact daily via Skype.
The applicant arrived in City Q in 2013.
The respondent told the applicant that they did not want to stay in the Suburb C property and wanted to move to another country. However, the applicant could not move because of his work and the applicant could only support his family and work in Australia.
The applicant took the respondent back to the house of his parents and stated that this would be their future. The parties renovated the house together. The respondent planned everything during the renovation because this was one of the respondent’s jobs in Country D, and she loved to do this kind of work.
Before the respondent moved to Australia, she did not know that the applicant had a previous wife, who lived in a property owned by the applicant. The property in which the former wife was living in was transferred to her in late 2018, which was roughly 5 years after the applicant and respondent began their relationship. The respondent was shocked to learn that the applicant still owned the property in which the former wife was living in during their relationship.
The applicant continuously managed the Partner visa, Bridging visa and marriage visa for the respondent.
The respondent asserts that the applicant continues to deny the length of their relationship, that being, the relationship lasted for eight years and lived together for six years, including the time before marriage.
The applicant identified that the relationship was “extremely short”.
The respondent identified that the relationship lasted for eight years and that the parties lived together for six years, including the time before marriage. The parties had to show their relationship to the Australian immigration with photos and videos every year. The respondent received a visa that only allowed the respondent to leave Australia for a maximum of three months or their entire visa application would have been interrupted. The respondent sold everything and gave up everything in Country D for their relationship.
When the parties received their marriage visa in late 2015, the applicant asked the respondent to sell their apartment in Country D because their permanent home was in Australia. The applicant told the respondent to not be afraid because he will love them for the rest of his life and that they are in a family that provides financial and emotional security. When the respondent sold the apartment, the respondent identified that the applicant asked for money because the applicant had to prove to the guardianship office that he is not using his mother’s money and that he has enough money. The respondent identified that the applicant was asking for money because he no longer had any money.
The parties were married in 2016 in Australia. During the marriage, the respondent was pregnant twice. The applicant demanded that the first child be aborted, and the respondent had a miscarriage with the second child due to stress. The applicant demanded that the respondent devote her time to taking care of his mother. The respondent could not go to an English course or work. The respondent asserts that there was not a moment of calm because the applicant’s mother was an excuse for everything. If the respondent cooked the food, the parties did not eat it because the applicant’s mother spat in it or reach into the whole food. The respondent asserts that the applicant shouted at his mother and aggressively pounded the door.
The respondent asserts that the applicant’s mother needed extensive care which required medical support. The respondent alleges that the applicant would not let the respondent leave the house because the applicant’s mother could not be left alone for five minutes. The respondent alleges that the applicant’s mother became aggressive at times, and pulled the respondent’s daughter’s hair and slapped the child for no reason. The respondent alleges that the applicant’s mother wanted to beat her and the respondent called the applicant.
The respondent went back to Country D to try buy back the sold apartment. The respondent had to pay with her child from the remaining money of the sold apartment and the respondent did not return to Australia until the applicant’s mother was hospitalized. After the respondent came back, the applicant and respondent spent the rest of the respondent’s money because the applicant had no money left. The respondent asserts that the applicant would not let the respondent work because he was jealous if the respondent met people. The applicant regularly sent money to the account in the respondent's name, to which the applicant had full access from the beginning until 2020-2021. The respondent gave cash to the applicant. Due to the applicant being their sponsor, the applicant had to show immigration that he could support them.
After the respondent returned to Country D, the applicant’s mother’s physical condition worsened, and she was hospitalized. The applicant’s mother was placed under guardianship because the respondent did not take care of the applicant’s mother. The applicant placed his mother in the K Nursing Home until her death. The respondent received letters to go to the hospital and the respondent would be shown how to change the applicant mother’s diaper. The respondent still had to appear in guardianship courts. The respondent alleges that the applicant brought his mother home and for the respondent to take care of her, without the respondent’s knowledge. The applicant signed documents with the respondent and the applicant told the respondent that it was necessary for immigration.
The respondent receives $360.00 a week of jobseeker payments from Centrelink, and it is the only source of her income and cannot afford food, rent, legal fees, or other expenses.
The respondent alleges that the applicant was extremely controlling and manipulative, where the applicant would hurt the respondent verbally and physically, and in some cases would discriminate the respondent. As a result of this treatment, the respondent asserts that it caused diseases to develop.
The respondent left her home, workplace and took out her pension insurance in Country D. The respondent’s daughter could not continue with her sports and hobbies in Australia.
The Suburb C property was renovated in 2015, which cost $35,000.00. The applicant transferred money to the respondent on several occasions, which the respondent had to pay back in cash due to the applicant having no money. The applicant would transfer the respondent large amounts of money due to the applicant being her sponsor, and the respondent would always return the money back to the applicant.
On one occasion in 2015 while overseas, the respondent alleges that the applicant slapped the respondent. The applicant also shouted at the respondent’s daughter. Following this, the respondent wrote to the applicant’s previous partner and asked about their previous marriage. The then partner of the applicant wrote back to the respondent and stated that she was unhappy with her marriage with the applicant.
The respondent caught the applicant having several conversations with other women via social media. The respondent asserts that the applicant presented the respondent as a negative person. At times the respondent wanted to end the relationship in 2018. The applicant did not spend Christmas with the respondent and her daughter. The respondent asserts that the applicant regularly threatened her with suicide and said he would never divorce, especially after the applicant’s mother passed away.
The respondent went back to Country D because of the abuse she was experiencing. The applicant would call the respondent over the phone asking her to return, the respondent said no, and the applicant said that he was in the kitchen, and he had harmed himself. The respondent called the Suburb C police from City Q through the TIS to attend to the applicant premises after hearing what the applicant told the respondent. On that occasion, the applicant did not hurt himself. On another occasion while driving, the applicant told the respondent that if she left him, he would hit a tree and they will die.
The respondent was entirely dependent on the applicant due to all her money being gone, including her Country D super. On one occasion, the applicant’s relatives and an acquaintance, threatened the respondent with the police when the applicant attempted to self-harm in 2018. The respondent alleges that the relatives and acquaintance were verbally and physically abusive towards her and discriminated against her. The applicant took the respondent and her daughter’s passport and hid them and did not give them back because the applicant did not want them to leave. The respondent told the police of this incident. However, no further action was taken against the applicant. The respondent then called the Country D embassy. The embassy told the respondent to go to City U with her daughter and they would issue the respondent a temporary passport to travel to Country D.
On one occasion, the respondent found Motor Vehicle 1 on the internet, the applicant liked the vehicle and is now using it. The respondent negotiated the price and both her and her daughter have only sat in the car three times. The respondent and her daughter were always alone and could not visit Country D families. When the respondent travelled back to Country D, the respondent did not have an apartment to live in and had to sublet during their visits. The respondent has also stated that she does not want to live in the Suburb C property.
After the parties separated, and when the applicant moved out of the Suburb C property in July 2020, the respondent asserts to having paid all the property’s water and sewage fees. The respondent identified that those invoices were left with her former lawyers, who did not return her documents, together with the guardianship office documents. On one occasion, an acquaintance of the applicant came to the house and put a padlock on the mailbox to which the respondent could not access the letters and invoices sent out. The respondent called the police and they removed the padlock.
The respondent asserts that her contributions to the property during the relationship was made more difficult due to the alleged domestic violence committed by the applicant.
The respondent asserts that the applicant has lied about how aggressive, alcoholic and a gambler the respondent was. The respondent alleges that every time she travelled to Country D, the applicant would either threaten to kill them or would be sobbing and crying.
According to the respondent’s affidavit dated 15 November 2023, the respondent received a text message from the applicant in late 2023 requesting that the respondent to go over to the Suburb C property because the applicant wanted the respondent and the respondent’s daughter back in the house. The applicant and respondent spent the night together. Post-separation, the respondent and the applicant behaved normally together, as if they did not separate. The respondent asserts the applicant regretted what he did to the respondent and her daughter.
According to the respondent’s affidavit dated 26 October 2023, while living in the Suburb C property, the respondent made various improvements to the house, which included painting the house, installing a new letterbox and light outside. The respondent also did the washing, cooking, cleaning and removed the garbage. According to the respondent’s affidavit dated 15 November 2023, the respondent ordered and requested large kitchen double glass doors and windows for safety and sound insulation purposes.
The respondent is currently unemployed, mentally, and physically ill. The respondent is unable to work due to her ongoing health condition. The respondent has a medical condition, which causes significant and lasting pain, post-traumatic stress disorder, anxiety and major depression. Since 2017, the respondent needs an unrelated surgery. Due to a car accident in 2019, the respondent’s experiences constant swelling and pain. The respondent has developed diseases, which makes the respondent’s body painful.
Due to the respondent being unable to work, the respondent is unable to secure a rental apartment, and currently both the respondent and her daughter do not have a permanent address. Both are living in the emergency accommodation for 35 days which was organised by a government service. The respondent’s only source of income is Centrelink’s fortnightly Jobseeker payment. According to the respondent’s affidavit on 26 October 2023, the respondent is seeking $400,000.00 in cash for her health, physical and mental illness, surgeries, a safe home, and legal fees. The respondent has identified that she owes a significant amount in legal fees. Relevantly, the respondent owes $129,991.00 to M Lawyers; $4,866.40 to R Lawyers; $1,647.80 to S Lawyers; and $4,047.04 to T Legal Service.
The respondent asserts that they do not have any money. The respondent identified that she needs 30% of the applicant’s cash because she wants to buy an apartment, and pay for medical expenses and legal fees.
The respondent alleges that the applicant did not contribute to the respondent’s health. The respondent asserts that the applicant did not give the respondent money to see doctors, such as dentistry and specialists. The respondent asked the applicant serval times to withdraw money from the super for doctors or surgeries for herself, given that she is his wife. The applicant did not withdraw money from super for medical expenses, and the respondent has identified that her medical condition worsened. The respondent also identified that that medicines and ointments do not relieve the pain either.
The DJ housing provided the respondent with a sublet and the respondent had assistance from a friend to obtain a loan. According to the respondent’s affidavit on 8 November 2023, the respondent owes sublease contract, plus her Centrelink debt, half of DJ Housing and legal fees. The respondent has not been able to support herself for many years because the applicant held the respondent back from everything the applicant would have built in the respondent’s life. The respondent owes an additional $38.00 per week due to the previous loan with Centrelink, and the DJ housing which is $69.00. The respondent is unable to buy food, other cleaning products, or medicine.
According to the respondent’s affidavit dated 8 November 2023, the applicant refused to give the respondent’s daughter money to buy a school uniform or change glasses during the marriage, and a relative of the respondent sent money to the respondent’s daughter so that the daughter could buy the things she needs for her studies.
The respondent collected and sold items that were being thrown away by others on the street, and the applicant did not like it and did not allow the respondent to get their own money.
The respondent left a job opportunity in City Q in 2019 which would have given her more respect and greater financial security than what the applicant could offer her here. The respondent was offered a job in the City Q public service. The respondent was a service worker for 20 years, worked in sales for 10 years. Then did part-time casual work at a foreign embassy in City Q.
In cross examination the respondent alleged the applicant had not money at the commencement of the relationship and this was contradicted by a bank statement showing that he had substantial funds. The respondent failed to produce any record to support her alleged return of funds to the applicant. The respondent conceded that she returned to Country D when the relationship with the applicant was bad. The respondent conceded spending significant funds gambling at a club. The respondent conceded that the applicant’s mother was in a nursing home at the time she alleged that she was looking after the applicant’s mother. The respondent was evasive as to the question of the applicant paying all the bills and suggested he had no money.
The applicant’s daughter deposed to the relationship and corroborated that there was some conflict during the marriage. The daughter said “My mother fought allot with [Mr Visser]”. The daughter corroborated the applicant sending the respondent money. The daughter said that complete loneliness was what her mother and her felt in this country. The daughter referred to the applicant bringing his mother home and the respondent refusing to care for her as well as an interaction with the mother in a car. The daughter confirmed that she and her mother would fly back to Country D many times. The daughter asserted no help with school related things by the applicant. The daughter suggested that the applicant didn’t help the respondent speak English and suggested he didn’t help her look for work. The daughter was not cross examined.
ALTERATION OF PROPERTY LAW
In respect to the parties dispute regarding the division of their property these proceedings, s 79 of the Act sets out the following:
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or
…
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d)an order requiring:
(i) either or both of the parties to the marriage; or
…
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
…
(2) The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
In exercising that discretion, the court is required to take into account the matters set out in s 79(4) of the Act, as follows:
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The High Court in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”), at [35] confirmed that before an order is made adjusting the parties property the court is required to make a determination that it is just and equitable to do so. That determination is to be made, however, not as a discrete or preliminary issue but requires the Court to consider the matters set out in section 79(4) of the Act.
In the leading case of Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143, the Full Court held at [39] that, in considering the matters set out in section 79 (4) of the Act the preferred approach was to adhere to the following four steps:
(a)Identify and determine the value of the asset pool of the parties as at the date of the hearing (this necessarily involves identifying both the assets and liabilities);
(b)Identify and assess each of the parties’ financial and other contributions up until the date of the hearing (this can include the financial contributions made before, during and after the marriage);
(c)Assess how future and other events may have a financial impact on either of the parties, such as their age and state of health and their income and property or financial resources (known as the s 75(2) factors); and
(d)Step back and examine this formula-based reasoning against the history of the marriage, intangible considerations and other contingencies so as to consider whether the outcome represents a just and equitable result.
That approach had been endorsed many times: see, for example, Manolis v Manolis (No 2) [2011] FamCAFC 105 at [63] (per Coleman, May and Ainslie-Wallace JJ); Kildea v Kildea (2007) 38 Fam LR 347 at [104] (per Finn, May and Boland JJ); C & C (2005) FLC 93-220 at [22] (per Bryant CJ, Finn and Coleman JJ) and [142] (per O’Ryan J). However, as the High Court noted at [35] in Stanford, s 79(2) of the Act provides that the Court shall not make an order altering the interests of the parties to the matrimonial property, “unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”. Accordingly, since Stanford, it has generally been the practice of the Court to determine, as an initial issue, whether it is just and equitable to make an adjustment of marital property.
The Full Court in Perrin & Perrin (No 2) [2018] FamCAFC 122 cited at [57]–[58] with approval, the decision in Babett & Falconer (2015) FLC 98-067 at [44]:
Within the family law context, those comments [in respect to the adequacy of reasons] should be seen as reinforced by the fact that the nature of the s 79 inquiry is, in essence, a broad discretionary assessment, which is neither an accounting nor mathematical exercise and which, effectively as a corollary, requires a "broad-brush approach".(Citations omitted)
Contributions
The Court is required to make an assessment of the nature and quality of the totality of the parties’ contributions throughout the entirety of their relationship, together with their contributions in the period subsequent to their separation. In [29] Dickons & Dickons [2012] FamCAFC 154, [14] (Bryant CJ, Faulks DCJ, Murphy J); Jabour & Jabour [2019] FamCAFC 78, [61] (Alstergren CJ, Ryan and Aldridge JJ). See also Dovgan & Dovgan [2021] FamCA 306, [347] (Harper J), which restates the need to holistically assess contributions following the case of Dickons, and that ‘all contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder’.
SUBMISSIONS
The applicant’s case outline, consistent with the application, contended a property adjustment of $10,000 prior to vacating the property to the respondent and a further $60,000 within 60 days of vacating the property. In default the applicant provided orders for sale of the property and payment of the $60,000. The applicant also proposed a super splitting order under s90XT with a base amount allocated to the respondent of $50,000.
The applicant’s case outline contended a property pool based on a value of the Suburb C property as being $775,000 and identified the super accumulated by the applicant over his more than 30 year working career. The applicant submitted that it was a short marriage of 4 years and that the sole financial contribution of the major asset was made by the husband after separation and that he made the sole initial financial contributions throughout the relationship.
It was submitted that the respondent made no initial contribution and that the evidence that the unit in Country D was sold was not supported. The submissions referred to the lengthy periods of time following the marriage spent by the wife in Country D with her daughter.
The submissions pointed out the significance of the Suburb C property not being the applicant’s asset at the time the parties occupied that property. At the commencement of the marriage the applicant had $43,000 in a savings account, a motor vehicle and $306,342 in superannuation. The applicant also applied approximately $90,000 towards renovations of the Suburb C property prior to the marriage.
The applicant was the sole income earner and applied his income towards the family expenses and costs. The applicant also paid for the respondent’s visa, travel costs, sent her money before and after the marriage and paid for the wedding. The applicant made emotional and financial support to the respondent and contributed to the care and welfare of the respondent’s daughter. The applicant assisted in caring for the daughter including educational needs and homework which continued until he left the house in July 2020. The applicant contributed as homemaker and to the upkeep of the house and undertook home duties outside his work hours.
Post separation the wife has had the benefit of occupying the Suburb C property and the applicant paid rates, insurance and related expenses associated that occupation by the respondent and her daughter. The applicant became the registered proprietor in late 2022 and following an initial payment of $650 in December 2021 from that date until April 2022 transferred the sum of $340 per week to the respondent. The respondent paid a further $400 in December 2022 and a further $10,000 pursuant to Court orders in 2023 for the vacation of the premises by the respondent.
The applicant addressed the s75(2) factors. It was submitted the wife would not be prevented from obtaining employment. It was submitted that the wife had directed funds away from the marriage and household through gambling.
It was submitted that this was an extremely short relationship where the parties only spent limited time together in the same country and that the applicant’s contributions were overwhelming more significant than that of the respondent and that the only major asset was transferred after separation.
It was submitted that the respondent’s contributions would reflect a finding in the region of 95% to the applicant and 5% to the respondent. It was submitted that an adjustment of 2.5 -5% was appropriate in favour of the respondent. It was submitted that the orders sought by the applicant reflected a ratio of 90% to the applicant and 10% to the respondent and that these orders were just and equitable.
The applicant identified the proposal for the making of an order, splitting his superannuation in the sum of a base amount of $50,000.00, that reflects approximately 12 per cent, or slightly over, of the asset in respect of the superannuation. The applicant initially proposed a further payment to the respondent, in the sum of $60,000.00, in addition to the $10,000.00 that had already been paid pursuant to the orders made on 31 July 2023.
At the conclusion of the respondent’s cross-examination, during submissions the Court identified that the real asset appeared to be the property, with a value of $850,000.00. During the hearing the Court raised with the parties that 12 per cent of that amounted to $102,000.00, and the Court also raised that it may be appropriate to deduct the $10,000.00 that was paid under the interim orders and also allow an amount of $9,000.00 deduction pursuant to the orders made on 31 July 2023. The Court raised that those deductions $102,000.00, making an amount of $83,000.00 that might be an property alteration from property at the Suburb C and that otherwise if unable to pay the respondent the property should be sold. The applicant then submitted that the appropriate alteration of property interests, taking the four stage process, should be an order reflecting 12 per cent of the superannuation and 12 per cent of the real property asset from which the deductions identified should be taken into account.
The applicant initially foreshadowed they are also seeking an order for costs, but after the Court indicated its concern in relation to the financial circumstances of the respondent, no application for costs was made by the applicant.
The respondent’s response dated 22 September 2022 didn’t state what amount the respondent wanted from the Suburb C property but did seek a super split of $178,785 to the respondent that would be difficult to justify. The amended response filed 27 October 2023 sought an amount of $10,000 and a further $440,000 making a total of $450,000 and no super splitting which ambit claim would be difficulty to justify. The Court heard submissions from the respondent. The respondent identified that she wanted at least $400,000.00, which she described as being 30 per cent. The respondent contended that the property pool was $1.4 million. The respondent contended that the relationship started before the marriage and continued up until 2020. The respondent submitted that she had made contributions of a financial nature, albeit not a document was adduced to support that proposition. The respondent contended that she had made substantial homemaker contributions during the period of the relationship.
The Court raised with the parties, the potential of pronouncing orders and reserving reasons. Towards the end of submissions by the respondent, the respondent then indicated that she wished to seek an adjournment, and made reference to, again, trying to contact Legal Aid. The stage of the final hearing was such, with evidence concluded, that the Court was not persuaded that an adjournment was warranted in the interest of the administration of justice and declined to make any order adjourning proceedings.
The respondent put further submission as to her needs because of debts that she owed to solicitors, her intention to have particular operations in respect of her health, and her desire to acquire a flat, and the needs of her daughter.
The respondent contended that she had left Country D, where she had a unit and brought her daughter here to Australia at the behest of the applicant and that effectively, she had realised the only property she had in Country D and contributed towards the relationship with the applicant. There is not a piece of paper that supports any financial contribution by the respondent to the applicant.
The Court explained to the respondent that the Suburb C property was not inherited by the respondent until after, on any view, the termination of the marital relationship. There was a dispute as to whether the matrimonial relationship ended in late 2019. At that time, the respondent conveyed to the police at the time of seeking an Apprehended Domestic Violence Order, that she wished to be divorced from the applicant, and intended that to be communicated to the applicant and it was so communicated to the applicant.
An ADVO was obtained by the applicant in mid-2020 which was subsequently dismissed. The applicant obtained an ADVO in late 2023.
The applicant finally contended for a 12 per cent alteration of property interest in the Suburb C property, in favour of the respondent, and a 12 per cent super splitting order, approximately in the amount of $50,000 in favour of the respondent. The respondent maintained that she wanted 30 per cent of $1.4 million, and that unless she received $400,000.00, she would not be able to move forward with her life.
The Court raised with the parties the possibility of pronouncing orders today and publishing reasons in due course. Towards the end of the argument, the respondent then indicated that she proposed to appeal if she did not get what she wanted. It was in those circumstances, that the Court indicated that it would take a course of reserving its decision and orders.
The respondent put submissions that the relationship was of a duration of eight years, had lived together for six years including pre-marriage and that she had made substantial financial contributions. The respondent contended that she had repaid funds she received from the applicant, when overseas. The respondent contended that she made significant contributions as a homemaker in looking after the applicant’s mother, before she was placed in a nursing home. The respondent did not accept the applicant’s contention that the relationship continued as a genuine domestic relationship as a couple, up until 17 September 2019.
The respondent contended that without an amount of $400,000.00, she would not be able to undertake the operations she proposed to have done and made reference to her affidavit, which annexed a doctor’s report in 2021, identifying proposed surgery. The respondent made reference, in her affidavit, to having other problems, which she summarised as dentistry, medical specialties, made reference to surgeries, having a medical condition and being in pain every day. The respondent deposed that there is a hole in her tooth, which has been swollen for years.
The respondent contended that she and her daughter needed somewhere the live. The respondent contended that she needed an amount that permitted her to pay out her outstanding legal costs, which the respondent had summarised, with supporting invoices, as being $129,991.00 to M Lawyers, $4,866.00 to R Lawyers, $1,600.00 to S Lawyers, and $4,047.00 to T Legal Service.
The respondent identified, at the commencement of her evidence, that she is living in a unit with her daughter and pays $380.00 per week. The respondent identified that she receives $442.00 per week from Centrelink. The respondent identified that her daughter also receives a Centrelink payment of $390.00 per week. The respondent said she receives no other carers pension. The respondent identified that neither she nor her daughter are working. The respondent indicated that she had commenced an English language course, which she proposed to complete, for the purpose of advancing her prospects of employment.
The respondent contended until she had her medical problems attended to, she would not be able to be employed. The respondent contended that she would homeless unless she received $400,000.00. The respondent, in her affidavit, had referred to needing a surgery in 2017. The respondent had a car accident in 2019, where her she experienced swelling and pain. The respondent said that she had developed medical conditions, whereby her whole body is painful. The respondent also said that she had to see a psychologist due to, she contended, for how she was treated by the applicant.
The applicant maintained that the relationship was no more than 38 months, and commenced at the date of marriage and ended on 17 September 2019. The applicant contended that the respondent made no financial contribution to the property that was inherited. The applicant maintained that there was no other financial contribution by the respondent throughout the relationship. The applicant did not accept that the respondent contributed to any renovations to the property.
The applicant submitted that the respondent’s credit was materially undermined by her own evidence that was inconsistent and unreliable. It was further undermined by the want of any evidentiary documentation to support the respondent’s evidence, and it was further undermined by the consistency and supported evidence of the applicant.
The applicant identified that there had been substantial periods during the marriage relationship, when the respondent was overseas, and was not contributing as a homemaker. The applicant submitted that there was no more than 2.5 years during which the applicant could be found to have contributed as a homemaker. In fact the overseas travel supports a homemaker period of only 22 months. The applicant accepted that although the Suburb C property was inherited after the relationship had come to an end, it would be just and equitable to make at least some order in favour of the respondent.
FINDINGS AND CONCLUSIONS
The Court finds that the property of the parties is as identified in the above balance sheet. In substance the Court accepts the applicant’s submissions.
In relation to financial contributions, directly or indirectly, the Court finds that the respondent made no financial contribution, directly or indirectly, to the inheritance of the property by the applicant, after the end of the matrimonial relationship. The Court finds that the matrimonial relationship came to an end on 17 September 2019. The Court finds that the relationship deteriorated in mid-2018 and intimacy had ceased by early 2019. The applicant continued living under the same roof until excluded by the respondent through the obtaining of a condition to an ADVO in mid-2020.
The Court does not accept that there was any financial contribution by the respondent, during the relationship with the applicant. The respondent’s assertion of receiving payments when overseas from the applicant, and then having to refund them, was unsupported by any documentary evidence. The Court does not accept that the respondent refunded any payments received from the applicant. The Court does not accept that the respondent contributed to any renovations to the home and finds that the applicant made a significant financial contribution to the home of $90,000 prior to the marriage to the respondent. The Court finds that this financial contribution to the property he inherited was the bulk of his earlier matrimonial settlement and materially added to the value of the home.
The Court finds that the applicant provided significant funds to the respondent, prior to the marriage, during the relationship and after separation, notwithstanding that he was excluded from the Suburb C property, by the respondent living there with her daughter, for almost 3 years. The Court does not accept the respondent’s assertions of family violence by the applicant. The Court does accept applicant’s evidence of the family violence by the respondent during the intermittent period of the relationship of approximately 22 months. The Court finds that the respondent made minimal homemaker contributions during the 22 months period and finds that her homemaker contributions were primarily directed towards her daughter. The Court does not accept that the respondent contributed in any substantial way as a homemaker over the 22 months of the relationship. The Court does accept the applicant’s evidence that he met all the outgoings during the relationship and that he contributed financially and to the education, schooling and upbringing of the daughter over that 22 months and that he was the more significant homemaker over that period, albeit he was also working. The Court finds that the respondent made minimal contribution to the acquisition of superannuation by the applicant over the duration of the marriage. The Court accepts the applicant’s evidence as to providing other carers to look after his mother when she was at the Suburb C home. The Court accepts the applicant’s evidence as to the brief period over which the applicant’s mother was at the Suburb C property with the applicant and the respondent prior to going into a nursing home. The Court finds that there is no contribution by the respondent to be taken into account in relation to the care or welfare of the applicant’s mother.
The Court finds the respondent was not a reliable or credible witness. The Court finds the respondent gave unresponsive answers and endeavoured to advocate her case. The respondent was prepared to exaggerate and/or embellish her evidence, in trying to advance her case of alleged greater contribution by her during the marriage and to exaggerate the duration of the relationship. The Court finds that the respondent’s contribution during the marriage as a homemaker was minimal and intermittent. The quality of the homemaker contribution by the respondent was impaired by her family violence to the applicant. The Court also finds that the respondent was in breach of her duty of disclosure as to financial records, which was raised during cross examination, and more readily draws the adverse inferences open on the evidence as to the lack of financial contribution by the respondent and as to the respondent’s overseas travel. The Court finds that the respondent gave false evidence as to the applicant having no money when they were married and gave false evidence as to repaying monies provided by the applicant. The Court finds the respondent gambolled significant funds at the club and does not accept the allegation that the applicant was gambling too. The Court finds the gambling alone by the respondent at the club corroborates the evidence as to the irretrievable breakdown of marriage by 17 September 2019. Overall, the Court does not find the daughter’s evidence to be of much assistance, albeit that it does in part corroborate some of the applicant’s evidence and gives the same little weight.
The Court finds that the applicant provided financial support to the respondent from the date of their marriage until the termination of their relationship as a couple on 17 September 2019 and continued thereafter to provided financial support. The Court finds that that relationship as a couple on a genuine domestic basis, ceased and that marriage had irretrievably broken down on 17 September 2019. In late 2019, when the respondent conveyed, through the police at the time of seeking the ADVO, that she wanted a divorce from the applicant. The respondent gave evidence that she intended that communication was to take place to the applicant.
The respondent gave evidence suggesting that the relationship did not change after the obtaining of that ADVO in late 2019. The Court finds that evidence was not credible. That evidence was also contradicted by the respondent’s own evidence later given, that by the time of seeking that ADVO, she was unhappy, and the relationship was obviously in a different state. The Court finds that there was no intimacy between the parties after early 2019 and rejects the respondent’s allegations of further intimacy.
The Court accepts that the applicant did continue to provide some financial support to the applicant until he moved out in July 2020 and, indeed, thereafter. The Court does not accept that continuing financial support by the applicant after 17 September 2019 or after July 2020 meant that the relationship continued as a couple on a genuine domestic basis. The Court finds that the matrimonial relationship came to an end in late 2019 with the applicant being informed that the respondent wanted a divorce. The Court finds thereafter, the applicant continued to provide some financial assistance to the respondent, notwithstanding that the respondent was occupying the applicant’s home, from which the applicant was excluded from 22 July 2020, until this Court made orders for the respondent to vacate by 18 September this year.
The Court has taken into account that the applicant provided substantial financial contribution before, during and after the relationship to the respondent, for the benefit of the respondent and her child, who then became an adult. The child was not a child of the relationship by the applicant with the respondent. The Court finds, under s 79(4) of the Act, that the financial contributions by the applicant were very substantial and significant, and that there were no financial contributions, directly or indirectly, by the respondent. In respect of the inherited property by the applicant after the matrimonial relationship had ended the Court finds that the respondent made no financial contribution to that property whatsoever. The Court finds that the respondent did not contribute at all the to maintenance of that property during the period which she stayed there, which included approximately 3 years after the applicant vacated the home. The applicant also met the whole of the outgoings during that 3 year period.
In relation to non-financial contributions, the Court accepts that the respondent provided some intermittent contributions as a homemaker, from the commencement of the matrimonial relationship, subject to the periods that she was overseas, until the termination of that relationship on 17 September 2019. The Court finds that they were not homemaker contributions to the home, which was subsequently inherited by the applicant. The Court does not accept that those homemaker contributions by the respondent were significant over the 22 months intermittent relationship, given the overseas travel, and finds that the quality of those limited homemaker contributions were impaired and diminished by respondent as a result of the family violence by the respondent to the applicant and conflict by the respondent to the applicant. There Court finds that the quality of the homemaker contributions by the respondent were minimal and further were diminished by the adverse conduct of the respondent towards the applicant.
The Court finds in respect of that the marriage relationship was from 2016 until 27 September 2019, that the respondent was overseas from mid-2016 until the beginning of 2017 and that the respondent again, travelled overseas from mid-2018 until mid-2019. This means that of the over three years of the married relationship the respondent and her daughter were overseas for more than 15 months. The Court finds that the respondent was not contributing as a homemaker to the applicant, during the substantial period that she was overseas. The Court finds that the period of the homemaker contributions by the respondent was approximately 22 months. The Court finds that the respondent was primarily looking after her daughter during that 22 month period and made minimal contribution to the welfare of the applicant over the period of the relationship. The Court accepts the applicant’s evidence as to the overseas travel and rejects the respondent’s assertion in cross examination that she left in late 2017 and returned in early 2017. The respondent in cross examination admitted that she was in Country D from about mid-2018 until mid-2019, and the Court rejects her further evidence seeking to qualify that answer to the effect that she left in late 2018.
The applicant inherited the Suburb C property in 2021, more than a year after he had vacated the property, and the applicant and respondent remained in occupation until 18 September 2023.
The Court does not accept that the respondent provided substantial or any care to the applicant’s mother or that the respondent substantially contributed to the welfare of the applicant. The Court prefers the applicant’s evidence that he had carers for his mother and that she was then placed in a nursing home and does not accept that the respondent provided any care to the applicant’s mother. The Court also accepts the applicant’s evidence that the respondent was verbally and physically violent towards the applicant. The Court accepts the applicant’s evidence that the respondent during the marriage hit him on the face, head and torso, spat on him and on one occasion in 2018 choked him. The Court does not accept that the applicant engaged in any conduct that supported the ADVO obtained by the respondent in 2019. The Court finds that the respondent used to ADVO process, without fearing the applicant, to exclude the applicant from the home and to continue his exclusion from the same, without any contribution to outgoings by the respondent.
The Court does not accept that the ADVO obtained by the respondent or the condition to exclude the applicant from the home was based on any family violence by the applicant. The Court finds the condition and ADVO were obtained by the respondent to try and exclude the applicant from the home and not because of any fear by the respondent of the applicant. On any view, the marriage had broken down irretrievably by 17 September 2020 from which date the parties lived separately and apart. It is apparent, from the earlier decision of the Court, that after the inheritance of the property, which on any view occurred after the end of the matrimonial relationship, the respondent refused to vacate the premises until orders were made by this Court in July of this year.
The applicant’s first ADVO in 2020 was not successful albeit the Court accepts that there was a proper basis for the applicant to seek the same. The applicant’s most recent ADVO was obtained after repeated intimidation of the applicant by the respondent and endeavours by the respondent to obtain money.
The Court notes that the respondent’s bank account identifying the commencement of gambling by the respondent at a club, is consistent with the relationship having deteriorated to a point, at that time in September 2019, where they were no longer continuing to live under the same roof as a couple and that the marriage had irretrievably broken down.
The Court finds that the period over which the respondent provided housekeeping and relationship contributions, was no more than 22 months. The Court finds that the extent of the homemaker contributions by the respondent, were minimal and of diminished quality as explained above. The Court has taken into account that the applicant did provide homemaker contributions, as well as assisting financial and non-finally, the applicant’s daughter as she completed her education and as he had greater English language skills.
In relation to the s 75(2) factors of the Act, the Court has taken into account that the applicant is aged 50 years old and in reasonable health, and that the respondent is aged 47 years old and does have health issues. The Court does not accept that the respondent is unable to work. The respondent’s daughter from a previous relationship is now 19 years of age and is living with the respondent. The vigour and tenacity with which the respondent has pursued and protracted these proceedings are also consistent with the applicant having a continuing capacity to work, if she so saw fit. The Court finds that her undertaking of her English course in which she is currently enrolled, is consistent with the position that the applicant will be able to obtain employment, when she chooses to do so.
In relation to s 75(2)(b) of the Act, the applicant has a job, and is now living in his home at Suburb C, which is unencumbered. The Court finds that the applicant receives a salary of approximately $1,500.00 before tax, per week, and after expenditure, receives approximately $1,315.00 per week.
The Court finds that the respondent is physically and mentally capable of obtaining gainful employment. The Court has taken into account the respondent’s evidence referring to her various ailments. However, for the reasons given, the Court finds the respondent was an unsatisfactory and unreliable witness and finds that the respondent was seeking to exaggerate her impairments in health, in order to try and increase the alteration of property interests that she might otherwise obtain.
In relation to s 75(2)(c) of the Act, there is no child of the relationship. The Court notes that the respondent’s daughter is an adult.
In relation to s 75(2)(d) of the Act, the applicant has no person that he has to support, and the respondent does not have a responsibility to support her daughter, who is now an adult.
In relation to s 75(2)(e) of the Act, the Court has taken into the account that the respondent has a daughter who has been living with her for a substantial period of time. The respondent brought the daughter to Australia, and the respondent and the daughter have been providing mutual support to each other.
In relation to s 75(2)(f) of the Act, the Court notes that the applicant is not in receipt of any pension or allowance. The Court notes that the respondent is in receipt of a weekly pension, as identified above, and that her daughter is also in receipt of a financial benefit.
The Court has taken into account that the applicant has accumulated almost $400,000.00 in superannuation, over his working career. The Court has taken into account that the applicant is entitled to a standard of living, in all the circumstances, that permits him to continue to occupy the Suburb C home, as being reasonable.
The Court is of the view, given that the parties are divorced, that the respondent is capable of obtaining a standard of living that is reasonable, in all circumstances, due to her potential gainful employment and earning capacity.
In relation to s 75(2)(h) of the Act, the Court has taken into account that the applicant did provide a form of maintenance after separation to the respondent as identified in the applicant’s above submissions.
In relation to s75(2)(ha) the Court was alive to the fact that the respondent has substantial debts owing to solicitors. The applicant too, because of these proceedings, has debts owing to solicitors, that were the subject of a costs notice filed in the proceedings, in accordance with rules. The Court has also taken into account the interest of the respondent’s creditors and that the substantial costs that appear to have been generated by the respondent were generated in substance by the unreasonable conduct of the respondent. The Court rejects the contention advanced by the respondent that the applicant caused her to incur significant legal costs and rejects the respondent’s contention that she has in any way been overcharged for the servicing that she required of her lawyers.
In relation to s 75(2)(j) of the Act, the Court does not accept that the respondent made any real contribution to the earning capacity of the applicant. The Court finds the respondent made no contribution to the Suburb C property inherited by the applicant. The Court finds that there was a period of 22 months, over which the respondent contributed to a small degree and of minimal quality as a homemaker, in respect of which the applicant’s financial resources, in respect of his superannuation, would have been slightly enhanced. The applicant did try to contribute to the respondent’s earning capacity during the married relationship.
In relation to s 75(2)(k) of the Act, the Court finds that the duration of the marriage was from 2016 until 17 September 2019. The Court finds that the marriage relationship was intermittent due to the overseas travel by the respondent and her daughter. The Court finds that the duration of the relationship taking into account that travel was approximately 22 months. The Court does not accept the respondent’s evidence that the applicant prevented her from earning or obtaining employment during the relationship. The Court prefers the applicant’s evidence that he, in fact, endeavoured to help the respondent obtain employment.
In relation to s 75(2)(l) of the Act, this factor is not relevant. In relation to s 75(2)(m) of the Act the Court has taken into account the respondent living with her daughter, and that the daughter helps the respondent from the financial benefits she receives, in their living expenses. The applicant is living on his own in the Suburb C property.
In relation to s 75(2)(n) of the Act, the Court has taken into account the order that was made under s 79 of the Act, in relation to the provision of $10,000.00 to be brought to account in the alteration of interest to be made by this Court. The Court has also taken in account that the Court anticipated a section 79 order also bringing to account the costs that were ordered by the Court in July of this year, as a condition of the grant of an adjournment.
In relation to s 75(2)(naa) of the Act, the Court has not accepted that the parties were in a genuine de facto relationship prior to their marriage.
In relation to s 75(2)(na) of the Act, this has no application.
In relation to s 75(2)(o) of the Act the Court regards the fact and circumstance of the inheritance of the Suburb C property by the respondent after the marriage ended, being a significant factor, that justice requires be taken into account, in that the applicant made no contribution to the acquisition of that property. There are some cases where after-acquired inherited property might be excluded from the property pool altogether. While the Court accepts that in the circumstances of this case, where the property pool is so small, it is appropriate to treat the after-acquired property as being part of the property pool. The Court must, however, weigh, as a matter of justice, in favour of the applicant, that this after acquired property was not contributed to by the respondent at all. The Court also regards the pre-marriage contribution of the $90,000 to the renovation of the property by the applicant to be a further significant factor to take into account in determining the alternation of the property interests and what is just and equitable. The Court finds that financial contribution would have materially added to the value of the inherited property.
There is no agreement of a kind that needs to be taken into account s 75(2)(p) of the Act or in relation s 75(2)(q) of the Act.
The Court has taken into account that the whole of the non-financial contributions by the respondent, and finds taking into account the whole of the evidence, the respondent’s contributions might be equated with an order in the amount of approximately 10 per cent of the value of Suburb C property as being an order that would be just and equitable, reflecting the contributions of the respondent. The Court finds that that would reflect an amount of $85,000.00. The Court accepts that some adjustments should be made for the future given the respondent’s extremely limited means and the potential hiatus between her obtaining useful employment and the need for her to undertake some potential medical interventions.
The Court does not accept the respondent’s evidence that she had quantified the cost of her proposed surgeries. The Court does not accept that all the surgeries are required given the unreliability of the respondent’s evidence. The Court does, however, on balance take the view that a further adjustment in favour of the respondent in the order of 2 per cent is appropriate. The adjustment in favour of the respondent has also taken into account her recent conduct in seeking to intimidate the applicant requiring an ADVO for his protection and that the Court has found the respondent is capable of obtaining employment if she chooses to do so. The Court finds that it is just and equitable to alter the property interests of the parties in favour of the respondent by ordering that the applicant pay the respondent 12 per cent of the property pool, excluding superannuation, which is in substance 12 per cent of the Suburb C property, reflecting the sum of $102,000.00. The Court finds that that alteration of property interest is just and equitable in favour of the respondent and appropriate. The Court finds, in all the circumstances of this case, that that alteration of property interest is just and equitable even if the relationship was viewed as being longer than three years, given that over 15 months overseas diminishes the quality of homemaker contributions and contributions to the welfare of the family.
The Court notes that there has already been an interim distribution under s 79 of the Act made by the applicant of $10,000.00 to the respondent pursuant to orders made on 31 July 2023 that must be brought to account. The Court also notes that orders were made under s 117 of the Act for the Court to fix costs thrown away by reason of the last adjournment, and that the Court took into account the factors under s 117(2A) of the Act. The Court has read the affidavit of the applicant in support of the qualification of those costs which identified a total amount in excess of $14,000.00. The Court is satisfied that a reduction to $9,000.00 reflects the party‑party costs thrown away by reason of the adjournment. That amount should also be deducted from the alteration of property interests consistent with the orders made on 31 July 2023. Accordingly, that leaves a balance of $83,000.00 to be paid by the applicant to the respondent within 90 days. The Court is satisfied that such an order is just and equitable.
The Court finds that an order as being sought by the respondent in the sum of $400,000.00 or reflecting a 30 per cent would be neither just nor equitable. First, because the property of the respondent, other than superannuation, is only acquired the after termination of relationship, Suburb C property with a value of $850,000.00. Secondly there was a substantial pre-marriage financial contribution to that property by the applicant of $90,000 renovations which improved its value. The Court does not accept that the property inherited by the applicant after termination of the relationship has any greater value as alleged by the respondent and repeats that the respondent declined the opportunity to cross-examine the property expert in that regard. The respondent’s claimed value of $1.4m is unsupportable.
The Court finds that to impose upon the applicant an alteration of property interest based on the value of $850,000.00 in the order of 30 per cent of that property, which would be $255,000.00 would not be just and equitable, taking into account the three further steps to which the Court has referred.
In summary, the Court finds that the respondent made no financial contribution to the Suburb C property. The continued occupation and use by the respondent of the Suburb C property, after inheritance of the Suburb C property by the applicant, prior the eviction of the respondent, were not an indirect financial contribution by the respondent. Apart from homemaker contributions during the marital relationship, the occupation and use of the Suburb C property by the respondent was for her own benefit and that of her daughter.
The Court does not accept the respondent’s contention that she made substantial and significant contributions during the relatively short relationship that would warrant an alteration of property interests in the order of 30 per cent. The respondent’s assertion of a property pool of $1.4m is without foundation.
The Court does not accept the respondent’s contention that what she perceives she needs should dictate what order should be made, including an unreasonable and exaggerated view of the duration of the relationship and an unreasonable and exaggerated view as to her contributions. The Court finds that the respondent’s incurring of unreasonable costs and protraction of the proceedings do not make just and equitable a greater alteration of property interests in favour of the respondent.
Accordingly, the Court makes the above orders.
I certify that the preceding one hundred and sixty-nine (169) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 20 February 2024
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