Volmer & Krauze
[2023] FedCFamC1F 869
•17 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Volmer & Krauze [2023] FedCFamC1F 869
File number(s): PAC 5150 of 2019 Judgment of: RIETHMULLER J Date of judgment: 17 November 2023 Catchwords: FAMILY LAW – PROPERTY – Consideration of financial and non-financial contributions – Whether the parties were in a de facto relationship prior to marriage – Where the parties have their own children from previous relationships – Whether there should be an adjustment under Robb & Robb – Whether there should be adjustments based on section 75(2) factors – Lottery win – Whether lottery win prior to marriage should be treated as a joint contribution – No matters of principle. Legislation: Family Law Act 1975 (Cth) ss 75, 79, 106A Cases cited: Hsiao & Fazarri (2020) 270 CLR 588; [2020] HCA 35
Kennon & Kennon (1997) FLC 92-757; (1997) 22 Fam LR 1
L & L [1994] FamCA 60
Robb & Robb (1995) FLC 92-555; (1994) 18 Fam LR 489
Division: Division 1 First Instance Number of paragraphs: 77 Date of hearing: 24 July 2023 to 1 August 2023 Place: Parramatta Counsel for the Applicant: Ms Beck Solicitor for the Applicant: Unified Lawyers Solicitor for the Respondent: Michael Vassili Barristers & Solicitors ORDERS
PAC 5150 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VOLMER
Applicant
AND: MR KRAUZE
Respondent
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
17 NOVEMBER 2023
THE COURT ORDERS THAT:
1.Within 60 days of the date of these Orders, the respondent pay the applicant the amount of $325,000.
2.In the event the respondent fails to make payment in accordance with Order 1 within 90 days of the date of these Orders, the respondent do all acts and things and sign all such documents as may be necessary and required to cause the real property known as and situated at B Street, Suburb C NSW, being the whole of the land and property comprised in Folio Identifier Lot … in Deposited Plan … (“the Suburb C property”) to be sold in accordance with the following legal mechanism:
(a)D Company Suburb E be engaged to act as the real estate agent for the sale;
(b)The Suburb C property is to be listed for public auction and instruct D Company, Suburb E (“the real estate agent”) to act as the agent in such sale;
(c)The reserve price for the purpose of such auction at first instance be set at the price recommended by the real estate agent (“the initial reserve price”);
(d)In the event that the bidding at the auction does not reach the initial reserve price at first instance or on any subsequent occasion, the applicant and the respondent may mutually negotiate with the highest bidder(s) or any other interested person(s) or entities and effect a sale of the Suburb C property at a price which is not more than five percent (5%) below the initial reserve price;
(e)If the Suburb C property remains unsold, the respondent forthwith do all acts and things and sign all such documents as may be necessary and required to immediately relist the Suburb C property for sale by public auction again, on a date nominated by the real estate agent and at a reserve price which shall be at least five percent (5%) lower than the reserve price on the previous listing;
(f)F Company, Suburb E, be engaged to act as the conveyancer in the sale of the Suburb C property; and
(g)The respondent execute a Contract for Sale pertaining to the Suburb C property.
3.For the purposes of the sale of the Suburb C property, the respondent co-operate in all reasonable ways with the real estate agent, including (without limiting the generality of the foregoing):
(a)Making the key(s) to the Suburb C property available to the real estate agent;
(b)Allowing inspection of the Suburb C property at all reasonable times requested by the real estate agent;
(c)Not doing or saying anything to hinder or prevent a sale of the Suburb C property from being effected;
(d)Ensuring the Suburb C property, including the grounds, is in a neat and clean condition at the time of any inspection by the real estate agent and prospective purchaser(s); and
(e)Signing all documents requested by the real estate agent in relation to the listing for sale of the Suburb C property except a contract or agreement for sale which has not been authorised by his legal representative(s).
4.In the event that the respondent is in breach or otherwise in default of Orders 2 or 3 herein, the applicant be entitled to:
(a)Enter the Suburb C property upon two (2) days of prior written notice to inspect and maintain the Suburb C property; and
(b)Do all acts and things as may be necessary and required, including engaging the services of a locksmith, to gain entry to the Suburb C property, in order to assist the real estate agent and any prospective purchaser(s) to effect an inspection and otherwise to effect the sale of the Suburb C property.
5.For the purposes of the sale and at the of the settlement of the Suburb C property, the applicant do all acts and things as may be necessary and required to provide in registrable format any document to be filed with the New South Wales Land Registry Services to cause the removal and withdrawal of the Form 11R she previously caused to be filed against the Suburb C property.
6.Upon completion of the sale of the Suburb C property, the sale proceeds be applied as follows:
(a)In payment of the real estate agent’s commission and marketing fees for the sale of the Suburb C property;
(b)In payment of all Auctioneer’s fees pertaining to the auction of the Suburb C property;
(c)In payment of the conveyancer for acting in the sale of the Suburb C property;
(d)The sum of 67.5 per cent of the balance remaining be paid to the respondent;
(e)The sum of $175,254.11 be paid to the applicant’s son, Mr G.
(f)The sum residual amount be paid to the controlled monies account of Unified Lawyers and that:
(i)The applicant’s legal costs owed to H Lawyers (as agreed between the applicant and H Lawyers, or as assessed) be paid to H Lawyers; and
(ii)The residual balance be distributed to the applicant.
7.Except as otherwise addressed within the ambit of these Orders, the parties each respectively:
(a)Be declared the sole owner in equity and in law, to the exclusion of each other, of all other assets, property (including any superannuation benefits and entitlements) and financial resources, including choses-in-action, held in their respective names, custody or control from the date of these Orders; and
(b)Retain and be solely liable for all other liabilities, demands or claims held in their respective names and are to indemnify each other and keep each other so indemnified in respect of any liability or claim(s) arising from or in connection with any debt(s), liabilities or assets retained by them pursuant to and from the date of these Orders.
8.In the event that either party refuses or neglects to execute any deed, document, instrument or writing required to comply with or to give effect to any of these Orders or for any other reason, a Registrar of the Federal Circuit and Family Court of Australia be empowered pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed, document, instrument or writing on behalf of and at the cost of the defaulting party.
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 the pseudonym Volmer & Krauze has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
INTRODUCTION
The applicant wife seeks a property settlement pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) from the respondent husband, following the breakdown of their marriage and separation of the parties in February 2014.
BACKGROUND
The applicant wife was born in 1971 and the respondent husband was born in 1957. The husband migrated to Australia in 2000 after separating from his former wife in Country K.
In or around June 2003, the husband met the wife. It is unclear on the evidence whether the husband met her through his mother or through some other relative. It seems likely that the husband’s mother introduced the parties to each other. The evidence was also unclear as to whether the parties met in person initially or simply by telephone and then had correspondence. However, it matters little in the context of the case.
After this introduction, the parties proceeded to telephone each other regularly, and sent many text messages and letters. The letters included statements by the husband as to the nature of the relationship that he sought with the wife, as well as expressing his amorous desires towards her. These letters included the husband expressing his preference to marry someone who did not have children (the wife had four children from a previous relationship) as well as a desire for a wife that would act on his direction and not challenge him. The letters also contained much intimate material concerning sexual desires or preferences.
April 2004 Visit
In April 2004, the wife visited the husband in Sydney, bringing with her around $9,750. There was a letter from that time which contains a comment by the husband suggesting obtaining a hotel near the city. However, it is not clear whether that was intended to refer to his later visit to Country K or her visit to Australia. In any event, the wife stayed with him in his house and they shared an intimate relationship for a number of nights.
During this period, the wife opened a bank account for the purposes of depositing a bank draft for the $9,750.
In April 2004, the parties agreed to marry and became engaged.
Around the same time, the wife said she withdrew $9,000 from the bank account, using some of the money to purchase engagement rings and, she says, some of the money was provided to the husband to pay for an engagement party in Australia. The wife says that she left Australia in mid-2004, leaving $6,000 with the husband. Whether it was left in cash or had been deposited back into her Australian bank account is not entirely clear. The wife says that she left the money in cash; however, the husband denies this.
After the wife’s return to Country K, the husband requested signed withdrawal slips from her to be able to take money from the account. Counsel for the husband suggested that this was to withdraw the last several hundred dollars from the account. However, there were a number of withdrawal slips requested which tells against the proposition that it was simply for such a small amount.
The money appears to have been applied, at least in part, towards the costs of the migration application, airfares, and some was returned to the wife in Country K to assist her (and perhaps, also, in furtherance of demonstrating a connection between them for the migration application by the wife).
The husband called evidence from his brother-in-law to the effect that his brother-in-law (his late sister’s husband) had given him $6,000 in order to explain the contents of his bank account and to press his case that he was not given money by the wife. His brother-in-law, Mr J, an elderly gentleman, presented as a frank witness who explained that he had given $6,000 to the husband and that, indeed, since then, he had also contributed $3,000 towards the husband’s legal expenses in these proceedings. Mr J had a recollection of giving it to the husband around the husband’s birthday, which matches the dates in question. Mr J was unable to explain why the money was given as he said that his wife spoke to the husband in N Language and he simply provided the money. It does not appear to me that his evidence is necessarily inconsistent with that of the wife. On the material, the husband rarely had much money and often was down to the last hundred dollars in his bank account and may well have obtained funds from his family, as well as the money that the wife left.
Considerable time was spent on whether or not, when the wife first opened her Australian bank account, she was taken to the bank by the husband’s sister from the husband’s house, or from the sister’s house. There is no evidence to indicate that she was pressured by the sister. Indeed, the evidence is to the effect that after opening the account, they went to a services club and had coffee and that the sister played the poker machines. Whilst there is a real dispute as to the location from which the wife left to head off to the bank, it does not seem to me to matter which of the two houses she left from. Whilst I was pressed to find that this was a matter that goes to credit, it seems to me that such a small difference in memory between the parties should not be considered a significant factor for any credibility finding.
I prefer the wife’s evidence with respect to leaving the money that was brought to Australia. It makes little sense for her to have brought such a sum to Australia, having to pay the exchange rate, and to then take it back to Country K, paying the exchange rate again.
2006 Visit
The husband travelled to Country K in 2006, and the parties spent time together at a hotel and then later at the L Hotel for several nights on each occasion. They were continuing their long-distance relationship during this period. They remained engaged but the husband, despite not having a house of his own in Australia, had not chosen to join the wife in Country K. Also, at this point, the wife and her children had not come to Australia.
Lottery Win
In 2006, the husband won money in the lottery. This was the result of a ticket that he had purchased as part of his longstanding habit of buying lottery tickets (as attested to by his daughter). Following this, the husband told the wife that, “We have won [the lottery]” and that they were now in a position to be able to marry and for her to come to Australia. They did in fact marry in 2006 in Country K. Although, unusually, none of her family attended at the ceremony.
Wife’s move to Australia
In 2007, the wife and her four children moved to Australia to take up residence with the husband. Once the parties were cohabiting, they purchased a house in 2007 using $320,000 from the lottery win. It is clear from the term deposit records that by the time the parties married, there was still $400,000 in a term deposit. The wife and her children thereafter resided with the husband. Once the house was purchased, they moved into the house purchased by the husband. The wife and her children make complaints that the quality of the home was at best modest and required some work and effort to put it into better condition, both in the garden and by cleaning and some painting. Nonetheless, it was a habitable home.
Throughout the period of cohabitation, the husband worked for most of the time, although he was unemployed for a period. The wife had employment from time to time. By 2012, she resigned from her employment. It does not appear that the parties ever had a joint bank account, either before they cohabited or when they were together.
There was considerable evidence about the nature of the relationship. The husband appears to have approached the relationship in the terms that he set out in his early letters to the wife where he expressed expectations of, in substance, obedience by the wife. The wife gave evidence of the difficulties of living with the husband; his controlling behaviour, poor mood, and direction for the children to remain in their rooms rather than, for example, watching TV on the couch.
There was some evidence concerning whether or not the wife had a key to the house, the implication being that she was either locked in or locked out. However, this does not appear to be the situation. She did go to work. In counselling notes she spoke about whether or not she would give back her key after she had separated. There appears to be no doubt that she could come and go from the house. It is also clear that her eldest son had a key to the home.
The wife’s daughter gave evidence of the husband inappropriately touching her (the daughter) on the breasts when she was washing up at the sink and on one occasion, kissing her. Her son gave evidence of seeing the husband slap the mother sufficiently hard to knock her to the ground. I accept that life for the children in the household was very difficult, as was also demonstrated by the fact that once the eldest child was earning an income, he moved out and obtained separate accommodation, and thereafter the other children went to live with him, rather than remaining in the household. The wife, however, remained at the house with the husband until the parties separated.
CREDIBILITY OF THE PARTIES
The wife’s evidence included admissions that she had made false statements to the Department of Immigration and also appeared to be characterised by a strong desire to say whatever she could to better her case against the husband. This was borne out, for example, in her giving evidence that she had been asked by the husband to arrange tradespeople and collect rent on one occasion for the house in which he has title to a half-share of a leasehold, that is located in Country K. Yet no details were forthcoming of this alleged assistance. On the balance of the evidence, it is difficult to conclude that the husband has had any involvement in that property since he left his first wife some 20 years ago.
The husband’s evidence was characterised by him prevaricating when asked questions and often not acknowledging even obvious inconsistencies that were put to him. His evidence was most unimpressive. To the extent that it is inconsistent with the evidence of the wife’s children, I prefer the wife’s children’s evidence.
COUNTRY K PROPERTY ISSUES
Husband’s leasehold interest in Country K
The husband is a tenant in common of a leasehold interest in Country K with his former wife. On his case, he has had nothing to do with the Country K property since he left his former wife 20 years ago. There is no evidence of any financial connection between him and the Country K property. There is no evidence of who is in possession of the Country K property, such as evidence of an inquiry agent attending at the Country K property to make enquiries. At best, there is the applicant wife’s claim that the husband had asked her once to go and collect some rent and to organise a tradesperson but with no detail given. The husband says that he left the Country K property and was not intending to resume occupation of it, leaving it for his first wife. Given his generally poor financial position over many years, it seems remarkable that he would not have pursued his interest in the Country K property had it been realistic to do so.
A Country K solicitor was called, as well as a valuer, in order to establish the value of the Country K property (subject to what costs would be incurred to ensure council approvals were obtained for any improvements). The valuer said that he took into account the assumption that the Country K property did not have a cyclone rating in striking a value in Country K currency (approximately AUD111,000). Although, it is difficult to see how that could be accurately taken into account without an inspection of the inside of the structure and without some cost estimate of obtaining a cyclone rating for the premises.
The solicitor gave evidence about the law of Country K. He said that the husband could bring proceedings for the sale of the leasehold interest in order to recover his one-half share, and that it was open, in Country K, for the first wife to respond with family law proceedings seeking leave to bring property proceedings there out of time. The solicitor thought it would be difficult for the husband’s first wife to obtain such leave, given the lengthy period of time that had passed. However, there is no evidence as to the extent to which the first wife has contributed to or preserved the value of the Country K property, met any mortgage payments, nor as to whether she relied upon retaining the Country K property. Neither party sought to locate her or call her to give evidence.
On the material before the Court, it is difficult to assess a true value of the leasehold in the hands of the husband. Despite arguing that the value of the husband’s interest was 50 per cent of the value of the Country K property (as assessed by the valuer), counsel for the wife did not wish to have a transfer of that half-share to the wife as part of any property settlement, given the very real difficulties that would be faced in converting the leasehold interest into a cash amount.
The wife’s property in Country K
The applicant wife gave evidence that in Country K, at least prior to the relationship, she was in a five-bedroom house and had vehicles that were being hired out, at least until the time that her first husband died. Following her first husband’s death, she received a compensation payment of around 30,000 Country K currency which in part funded the money she brought to Australia and in part has been used for the care of their children. She said that her deceased husband owned their house in Country K although, at present, there is no explanation as to what happened to that property and why she would not have received any share of that property. However, she appeared dependant upon her family before moving to Australia, so dependent that at times she was without electricity if her brother failed to put money in the meter.
Ultimately, I am not persuaded that there is evidence to show that either party has immediately realisable property in Country K, rather, it is likely they each have some form of financial resource there but that the lack of clear evidence makes it difficult to value those resources. Importantly, both appear to have some form of entitlement in Country K which is best considered as a financial resource and taken into account on that basis.
ALLEGED QUEENSLAND PROPERTY
The husband had told the wife that he owned a property in Queensland. The wife believes this statement, although searches of the Queensland Titles Office have not identified any properties in the husband’s name. He attended upon a solicitor at one point to attempt to have a family trust set up with a company as the corporate trustee, in order to hold his NSW house for the benefit of his daughter. However, there is no record of any trust deed being stamped at the Stamps Office in NSW. Nor is there any record of the company holding any property in Queensland. The property in NSW (the Suburb C property) remains registered in the husband’s sole name. It seems that he did not proceed with the trust arrangement, despite opening a bank account in the company name (where a few payments, which appear to be amounts that would likely be rent, were paid). There is no evidence the company is now registered or that the bank account is still operating.
The husband’s financial position has always been very modest. I am not persuaded that he in fact has or had a home or real property in Queensland, whether held directly or through a trust, at least on the state of the evidence before the Court. Nor am I persuaded that he holds property other than the former matrimonial home in NSW.
PROPERTY OF THE PARTIES
The first step in considering property settlement and orders under s 79 of the Act is to identify the property of the parties. It is agreed that the former matrimonial home in Australia has a value of $1 million. I proceed on the basis that the property pool consists of the home valued at $1 million. Whilst there are no doubt chattels and other minor items, neither party sought to have these types of items considered.
The wife has very little superannuation, amounting to $11.01 according to financial statement filed 20 July 2022, although, in this document she explains she withdrew $4,000 from her superannuation to pay her legal costs.
The husband appears to have no superannuation at present and is working as a contractor and therefore not receiving employer superannuation contributions. It appears that he held around $37,819 in superannuation in June 2013 with Superannuation Fund 1, although the balance of this account was nil by February 2014.
I have discussed their financial resources above. The wife and her four children came to Australia after the marriage with the husband. The parties lived together for some seven years, with the wife contributing to the household. Title to the Australian property is held solely by the husband (the Suburb C property). I am satisfied that it is just and equitable that there be some form of property settlement. There was no argument put to the contrary on this issue.
CONTRIBUTIONS
The second step in the process of considering a property settlement is to assess contributions under s 79(4) of the Act. When assessing contributions, I have regard to the winnings brought to the relationship by the husband. This was a significant initial contribution. The wife had brought money ($9,750) to Australia during an earlier visit. Whilst that was prior to cohabitation, it is a contribution by her to the circumstances of the parties and should be taken up as a contribution of $9,750.
Considerable argument was addressed towards whether or not the husband’s lottery win should be taken up as a joint contribution or a contribution on his part. The case was argued on the basis that the parties were in a de facto relationship prior to the marriage. I do not accept this argument. There are a number of circumstances of the parties that do not tell in favour of the parties being in a de facto relationship at that time. Primarily, the parties were not cohabiting as the husband lived in Australia while the wife lived in Country K. They never cohabitated until after marriage. It is not a case where circumstances beyond their control kept them apart in that the husband, at least, could have travelled to Country K to cohabit with the wife. The parties did not have any joint bank accounts at that point. Their relationship, whilst an arranged one, was relatively short and premised upon the proposition that they would ultimately marry, which they did at a later date. Whilst they had a sexual relationship during the periods when they were together for visits, it was a modest number of nights they spent together over the years prior to marriage.
Counsel for the wife pressed an argument that there was a financial interdependence based on the proposition that the wife had left some money in Australia and the husband had returned part of that to her to assist her in Country K and had used the balance. The amount was minor in comparison to the period and it does not indicate that there was any financial interdependence by the two of them as each clearly principally supported themself prior to the wife coming to Australia.
They never owned property together. Although the wife pressed the husband to have the home registered in joint names, he never did so. There is no suggestion that any property in Country K was jointly owned. Their commitment to a shared life was, at least until marriage, only a promise to marry and become a couple, which they ultimately did. The parties had no children together. The husband made the point that he did not wish to have children in the current relationship (he, too, had previously had children in a prior relationship).
The reputation and public aspects of the parties’ relationship is more complex. It appears that the relationship was well-known to the husband’s family but not so well known to the wife’s family, or at least resisted by the wife’s family. The wife’s family did not attend the parties’ wedding and she stated that they were unhappy with her seeing the husband when he was in Country K.
In evidence before the Court were representations made to the Department of Immigration. However, to the extent they were made by the wife, she acknowledged she made false representations to the Department of Immigration. The husband stated that he completed the forms as best he could to obtain the visa for her. It does not appear to me that anything either of them said to the Department of Immigration could be relied upon as truthful in the circumstances of this case.
It was acknowledged by the wife that part of the visa application was the requirement that the husband show financial capacity to sponsor the wife, and that he had transferred money to her through Western Union, although she said she did not ask for that money. There was some dispute about the extent of those transfers, which the husband’s solicitors sought to address by obtaining an FOI consent from the wife to lodge with AUSTRAC. However, this consent was not forthcoming from the wife’s solicitors, claiming that such a record would not exist for such a long period in the past. Why such a consent would not have been given to enable the husband to make the enquiries, even if those enquiries failed, is unclear. I prefer the husband’s evidence about money transfers.
With respect to the lottery win, there is no question that the ticket was purchased by the husband. Counsel for the wife carefully cross-examined the husband about the use of the money that he had when the wife had first come to Australia, demonstrating that $6,000 of it had been expended well before the lottery ticket was purchased. There was no evidence that any of the small remaining amount was retained and applied to the purchase of the ticket. The wife was not in Australia at the time the lottery ticket was bought. They were not cohabiting, and they were not de factos. The lottery winnings were a contribution by the husband rather than simply the ticket. The cases where lottery winnings have been taken to be a joint contribution have all occurred after the time of marriage and prior to separation.
Contributions prior to cohabitation can be taken into account, as occurred in L & L [1994] FamCA 60 and Hsiao & Fazarri (2020) 270 CLR 588. However, in none of the cases did the law go so far as to suggest that a windfall obtained by a party prior to cohabitation should be considered a joint contribution as opposed to property contributed by one to the other of the parties, when assessing the property settlement. On the material in this case, the husband’s contribution of his lotto winnings must be taken to be a contribution by the husband and not a joint contribution by him and the wife.
Following separation, the husband remained in the matrimonial home. It does not appear that orders were sought for maintenance or interim property settlement. In any event, the husband had the use of the home. He expended moneys on improving a granny flat, which he is able to rent out.
Whilst I have little doubt that it was a suffocating and domestically violent relationship, it does not appear to have been as extremely constrained as was portrayed by the wife. For example, she did have keys to the house; she did engage in employment outside the house by herself; she did have her own bank account from which she purchased personal items. Once the children had left the household, she did visit them, though the frequency of visits is not clear on the state of the evidence. She would have it as being quite frequent, although her daughter gave evidence that it was infrequent. On the daughter’s version, it was unclear as to why she would not have been able to see her mother at a café or the shops when the mother was coming home from work or similar even if she no longer went to the house.
Whilst there were no children of the parties’ relationship, the wife sadly suffered a complicated pregnancy and termination after the parties were married.
The wife’s son gave evidence that when they decided to come to Australia, they were living in a house on a property of his uncle’s and there were times when the uncle did not pay the electricity meter recharge and that the property was quite small. He had, however, a scholarship in Country K and abandoned that to come to Australia but agreed that the husband helped him obtain employment here.
The son explained that the first house they stayed in was too small for the six of them, although they had been living in a one-bedroom house in Country K immediately beforehand. The husband then purchased a bigger home, although the son was critical of it because it required maintenance and cleaning and painting. The son was required to cut down a tree at the back, which he was concerned about as it required him to climb up and cut down branches without a harness.
The son and his sister have been very supportive of the mother, including providing her with a significant loan for the legal fees for these proceedings, lending her $175,254.11, which has been paid to her lawyer. The son seeks repayment of those moneys lent by him and his sister (the sister being content for her brother to be repaid the total and for them to account between themselves).
The husband renovated the ‘granny flat’ at the premises. The evidence in the husband’s affidavit filed 30 June 2023 was that it cost between $10,000 to $15,000 for one part of the renovations, as well as $2,000 to $3,000 for another part (see the husband’s affidavit, paragraphs 116–117). This has enabled him to receive an income from renting the granny flat, which, on the most recent tax returns, returned around $18,000 for the year. Although, the income from that granny flat has been inconsistent over the years, with one year resulting in a loss. The husband’s use of the house has also relieved him of the need to rent other accommodation, whilst the wife has been renting elsewhere, with her not having another property in which to live.
At the outset of the hearing, counsel for the wife stated that the wife did not argue for any consideration based upon the principles identified in Kennon & Kennon (1997) FLC 92-757.
After relocation from Country K in 2008, the wife was earning $200-300 a week in a trade. From August 2008 to January 2012, the wife was earning around $500 per week in her trade. The wife claims this income was applied to the household. From June 2012, she was unemployed and contributed her Centrelink payments ($934 per month) to the household. In 2012, she received a bereavement allowance from her miscarried pregnancy to the amount of $5,437. She says she gave $4,000 to the respondent for his personal use and she spent the remainder on the household. The husband worked during much of the relationship, earning a modest income.
I note that the only significant asset of the parties is the house that was purchased from the funds that the husband brought to the relationship. However, I also note the nature of the contributions that the parties made during the time they were together and the use that the husband has had of the Suburb C property post separation. I have discussed the parties’ financial resources which I take into account, above.
Considering the contributions of the parties as a whole, I’m persuaded that the wife’s contributions should be assessed 27.5 per cent.
SECTION 75(2) FACTORS
The third step in considering a property settlement is to consider the factors under s 75(2), as required by s 79(4)(e). In this case, the wife is in her fifties and not working (although she can work up to 18 hours per week according to a social security assessment). The wife says that she can only work part-time and has been looking for receptionist work.
The husband is currently working, earning $1,000 per week, but is 66 years of age and earning his income from delivery for a contractor. He says that he expects to retire next year and would be limited in how long he could continue to work in this occupation in any event.
Counsel for the wife submitted that neither should be seen as having an advantage under s 75(2) of the Act with respect to income matters, which submission I accept.
Counsel for the husband submitted that the husband ought to receive an adjustment under s 75(2)(o) of the Act in accordance with the principles from Robb & Robb (1994) 18 Fam LR 489 as a result of having provided, at the very least, accommodation, but also food and other benefits for the wife’s children living in his household for the period between when they arrived in Australia and moved out. An adjustment under Robb & Robb is not simply a financial calculation that in some ways compares the arrangements to that of a boarding house. It is a matter of considering the circumstances of the family as a whole.
In this case, the eldest child was working to contribute money to the household for the other children. The wife was also working during the period.
In her affidavit filed 31 May 2023, the wife’s eldest daughter described sexual assaults she suffered by the husband between 2007 and 2009, when she was living at his residence (see affidavit of Ms O, paragraphs 31–34, and 44). There were numerous instances where the husband would approach the daughter from behind and grab her breasts. The daughter, in her affidavit, described crossing her arms over her chest whenever she heard the husband approach her from behind in order to attempt to protect herself from him (see affidavit of Ms O, paragraph 31). She described incidents where she had been washing dishes at the sink and heard the husband enter the kitchen. She would leave the tap running while her arms were occupied protecting her chest, and the husband would reprimand her for not turning off the tap (see affidavit of Ms O, paragraph 31). On another occasion, she said that the husband grabbed her crotch (see affidavit of Ms O, paragraph 32). When she went to console the husband on the day of his own older daughter’s death, he forcefully kissed her, causing her to flee the room (see affidavit of Ms O, paragraph 33). In her affidavit, the daughter also sets out that the husband sent her a text message containing a picture of his genitalia, which she forwarded to the wife.
The wife also gave evidence that the husband would hug her daughters from behind and they would complain that he would touch their breasts (see wife’s affidavit filed 1 June 2023, paragraph 155).
In her affidavit, the wife says that she recalls the incident that occurred around late 2010 or early 2011, wherein the husband sent the daughter a picture of genitalia. She confirmed that the daughter forwarded a copy of the text message to her (see wife’s affidavit filed 1 June 2023, paragraph 156).
In the husband’s affidavit filed 6 June 2022, he denies the allegations, stating he did not “sexually molest” the wife’s daughters, nor did he touch or squeeze the eldest daughter’s breasts, grab her crotch, kiss her, or send her a text message of his genitalia (husband’s affidavit filed 6 June 2022, paragraph 25). In his affidavit filed 30 June 2023, the husband again denied touching the daughter’s chest or “private parts”, as well as denying that he sent her a picture of his genitalia (see husband’s affidavit filed 30 June 2023, paragraphs 145–146).
The oral evidence that the daughter gave during cross-examination was detailed and consistent with the evidence put forward in her affidavit. When recounting the incidents set out in her affidavit, her distress was palpable. She said the events in which the husband would come up behind her and grab her breasts happened, on many occasions. She demonstrated how she would hold her arms up to protect her chest, resembling the description from her affidavit. She described being much younger at the time of the incidents, around 17 to 18 years of age, and was therefore much smaller than the husband. She recalled the husband forcibly moving her hands when she was attempting to cover her chest to “do whatever he wanted to”. She stated, “he didn’t take no for an answer”. The daughter described how the husband forcefully kissed her “on the day he lost his daughter”. Her demeanour was that of a credible witness with regards to these details.
The husband resolutely denied the allegations when they were put to him by counsel for the wife. The husband also denied that he had sent the daughter a photo of his genitalia. However, when the wife’s counsel pressed the contention, the husband stated that the picture was not of his genitalia, but of someone else’s, and that it was sent to him by another person. He said that the wife was beside him, saw the picture, and asked for it to be sent to her. He said that, by mistake, it was sent to the daughter’s mobile, and that the wife explained to the daughter that it was a mistake.
There is no evidence that the daughter was able to actually identify the husband’s genitalia from the photo that she received, however, it remains clear that even on the husband’s version in cross-examination, a photo of male genitals was sent by the husband to the daughter (although he maintains that this was done in error).
Having seen the witnesses give evidence on this issue, and bearing in mind the gravity of the allegations, I am persuaded on the balance of probabilities that the husband engaged in the conduct alleged by the wife’s eldest daughter. Whilst I am unable to be satisfied on the balance of probabilities that the photo the husband sent was of his own genitalia, I am persuaded that he sent the daughter a photo of male genitalia. I am not persuaded by his explanation that the photo was sent inadvertently.
Having regard to the nature of the relationship of the husband with the children, the support that the wife’s son provided both in monetary terms and in providing a residence for the other children to move out of the matrimonial home, together with the conduct of the husband towards the daughter, I am not persuaded that any adjustment ought to be made under s 75(2)(o) of the Act, for support by the husband of the wife’s children of the former relationship (see generally: Robb & Robb (1994) 18 Fam LR 489).
There remains the question of the differential in the asset position of the parties. On a 27.5 per cent contributions assessment in favour of the wife, the husband is significantly financially better off than the wife. I also note the financial resources of the parties in Country K and that whilst no adjustment is contended for on the basis of income differential, the parties both have low earning capacities, highlighting the significance of a differential in asset position.
I am persuaded that an adjustment of five per cent in favour of the wife is warranted in the circumstances of this case.
JUST AND EQUITABLE
The final step under s 79 of the Act is to step back and consider whether the overall effect of the orders is just and equitable. I have made findings supporting a property settlement of 32.5 per cent in favour of the wife and 67.5 in favour of the husband, pursuant to s 79 of the Act. This results in the husband having to pay the wife $325,000. I am persuaded that this division is just and equitable as between the parties.
Whether the husband will be able to borrow this sum with the assistance of friends and family or will be required to sell the property located at B Street, Suburb C NSW (Lot … in Deposited Plan …) (“the Suburb C property”) is not clear on the material before me.
Counsel for the wife sought that the orders simply force the immediate sale of the Suburb C property. Orders for property settlement, where a person is living in their home, would ordinarily provide at least some opportunity to retain the home rather than immediately forcing a sale, providing there is some prospect the home could be retained. I am not persuaded that there is no real prospect of the husband retaining the Suburb C property. I will therefore give the husband 60 days to attempt to obtain finance to pay out the wife for her share of the Suburb C property. If this is not complied with within 90 days, then the Suburb C property should be placed on the market for sale.
Remarkably, the solicitors for each of the parties were unable to even agree upon a real estate agent and conveyancer for the sale. I directed that they exchange lists of three of each. From the list of three agents provided by the wife’s solicitor, the husband’s solicitor selected D Company, Suburb E. Given the extent of the disputes between the solicitors at the trial, it did not appear to me to be realistic to expect one or the other to act as the conveyancer in the matter without it resulting in further disputes and fees for the parties. The wife’s solicitor did not select from the list of conveyancers provided by the husband and, as a result, I allowed the husband’s solicitor to simply nominate one, F Company at Suburb E, in order to avoid further likely applications about the machinery of effecting the sale which would have added to the already extraordinary costs that have been incurred in this matter.
I have largely adopted the sale orders proposed in the wife’s draft, save for removing the fixed reserve amount for the auction and leaving the question of the reserve to the real estate agent (to ensure sufficient flexibility to set a reserve that best meets their needs to obtain the best price and effect an expeditious sale), and inserting the requirement that the parties utilise the nominated real estate agent and conveyancer.
Following the sale of the Suburb C property, the moneys ought to be distributed so as to pay the usual expenses of sale, and thereafter, 67.5 per cent of the balance then remaining to the husband. The wife’s debt to her son should be met from her share, and the balance of her share then paid to her. Issues between her and her solicitors are not matters that are before me for determination, however the orders she seeks are for payment to her former solicitors and I therefore make orders for the balance of the wife’s share to be paid to her solicitors on her behalf, as sought by her.
I therefore make orders accordingly.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 17 November 2023
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