WALBECK & CAISON

[2020] FCCA 1603

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALBECK & CAISON [2020] FCCA 1603

Catchwords:
FAMILY LAW – Property adjustment – assessment of contributions.

Legislation:

Family Law Act 1975 (Cth), ss.90SM, 90SF(3)(r)

Cases cited:

Black & Kellner (1992) FLC 92-287
Calverley v Green (1984) 155 CLR 242
Weir & Weir (1993) FLC 92-338

Applicant: MS WALBECK

Respondent: MR CAISON

File Number: BRC 9698 of 2018

Judgment of: Judge Jarrett

Hearing dates: 11, 12 June 2020

Date of Last Submission: 12 June 2020

Delivered at: Brisbane

Delivered on: 17 June 2020

REPRESENTATION

Counsel for the Applicant: Mr Bunning

Solicitors for the Applicant: O’Neill Family Law

Counsel for the Respondent: Mr Drysdale

Solicitors for the Respondent: Steel Legal

ORDERS

1. That the Applicant retain and/or receive as her absolute property:

   (a)the furniture, contents and household effects in her possession;

   (b)her personal possessions and effects;

   (c)the Motor Vehicle 1;

   (d)her interest in the Super Fund A; and

   (e)the credit balance in her bank accounts.

2. That the respondent retain and/or receive as his absolute property:

   (a)the furniture, contents and household effects in the respondent’s possession;

   (b)his personal possessions and effects;

   (c)the plant and equipment from B Pty Ltd including the tractor, mowers, quadbike and bobcat;

   (d)all horse tack and equipment in his possession;

   (e)his interest in C Pty Ltd;

   (f)his interest in B Pty Ltd Fund save for the provisions of these orders;

   (g)his interest in B Pty Ltd;

   (h)his interest in the B Pty Ltd Trust;

   (i)the credit balance in his bank accounts;

   (j)his interest, to the extent that those interests are not already taken up above, in the thoroughbreds comprising D, E, F, G, H, J and K; and

   (k)his Motor Vehicle 2.

3. That the $299,000 held in the trust account of Best Wilson Buckley Lawyers on behalf of B Pty Ltd as trustee for the B Pty Ltd trust be paid as follows:

   (a)$160,000 to the applicant; and

   (b)the balance to the respondent.

4. That the $1,004,775.02 held in the trust account of Best Wilson Buckley Lawyers on behalf of C Pty Ltd as trustee for the B Pty Ltd Superannuation Fund be paid to C Pty Ltd.

5. That the Court allocates, as required by s.90XT(4) of the Family Law Act 1975, a base amount of $243,000 to the applicant out of the respondent’s interest in the B Pty Ltd Superannuation Fund.

6. That, in accordance with s.90XT(1)(a) of the Family Law Act 1975:

   (a)the applicant is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

   (b)the entitlement of the respondent in the B Pty Ltd Superannuation Fund is correspondingly reduced by force of this order.

7. That the trustee of the B Pty Ltd Superannuation Fund (“the trustee”) shall do all such acts and things and sign all such documents as may be necessary to:

   (a)calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement awarded to the applicant in the immediately preceding clause of this order; and

   (b)pay the entitlement whenever the trustee makes a splittable payment from the respondent’s interest in the B Pty Ltd Superannuation Fund.

8. That this order has effect from the operative time and the operative time is the making of these orders.

9. That, within 28 days after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (“the SIS Regulations”), the applicant and respondent shall do all such things and sign all such documents as may be necessary for the rollover or transfer of the non-member spouse interest in the B Pty Ltd Superannuation Fund to a complying superannuation fund of the applicant’s choosing in accordance with the SIS Regulations.

10. That contemporaneously with the transfer of the transferable benefits from the respondent’s entitlement in the B Pty Ltd Superannuation Fund to another superannuation fund in the name of the applicant, the applicant shall, within seven days of written request from the respondent, execute all deeds and instruments necessary to:

    (a)resign as a member of the B Pty Ltd Superannuation Fund; and

    (b)resign as a trustee of the B Pty Ltd Superannuation Fund if necessary.

11. That excluding any liabilities specifically dealt with in this order, the applicant shall be solely responsible for and meet payment of all liabilities in her sole name and she shall indemnify and keep indemnified the respondent from any liability howsoever arising thereunder.

12. That excluding any liabilities specifically dealt with in this order, the respondent shall be solely responsible for and meet payment of all liabilities in:

    (a)his sole name;

    (b)the name of B Pty Ltd Pty Ltd whether in its own right or as trustee; and

    (c)the name of C Pty Ltd whether in its own right or as trustee;

    and he shall further indemnify and keep indemnified the applicant from any liability howsoever arising thereunder.

13. That save and except for the property and financial resources dealt with pursuant to the terms of this order, each party retain as his or her own property absolutely all assets and/or financial resources of whatsoever description and wheresoever situate of which that party is the legal owner of and/or which is/are in the possession of and/or under the all control of that party as at the date of this order.

IT IS NOTED that publication of this judgment under the pseudonym Walbeck & Caison is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 9698 of 2018

MS WALBECK

Applicant

And

MR CAISON

Respondent

REASONS FOR JUDGMENT

1. Ms Walbeck and Mr Caison commenced a de facto relationship when they started living together in 2010.  However, their relationship lasted only about eight years and they separated on 8 August 2018.  Since then, they have been unable to agree on how to distribute their property between them.  It falls to the Court to determine whether it is just and equitable to make a property adjustment order at all and if so, the nature and extent of the orders that are required. 

2. Both parties seek property adjustment orders.  Both contend that some property adjustment order is just and equitable in the circumstances.  Neither party suggests that the parties’ current legal and equitable ownership of property represents a just and equitable distribution of their property following upon the failure of their relationship.  I agree.

3. Apart from the findings that must be made about the parties’ contribution based entitlement and how those entitlements might be affected by the matters that arise under s.90SM(4)(d) and 90SM(4)(e) of the Family Law Act 1975 (Cth), additional specific issues emerge from the parties’ evidence and the submissions made for each of them at the conclusion of the trial as follows:

   a)whether Mr Caison has made full and frank disclosure of his financial position as he is required to do in proceedings of this type;

   b)whether Mr Caison’s evidence, either specifically or generally, is unreliable;

   c)the value to be ascribed to two horses presently in Mr Caison’s possession; and

   d)the nature and extent of the contributions made by each of the parties to the conduct of a horse breeding and agistment business carried on by them via a corporate entity known as B Pty Ltd Pty Ltd.

4. As to the first matter, I am satisfied that Mr Caison has failed to make full and frank disclosure of his financial position throughout these proceedings.  No substantive argument was put in favour of the proposition that Mr Caison had made proper disclosure of his financial circumstances.  That was unsurprising given Mr Caison’s own evidence about his failure to provide information, including documents, about his financial positon and the absence of any explanation at all for that failure. 

5. Mr Caison’s failure to make proper disclosure commenced when he filed his first financial statement on 27 September 2018.  That financial statement was inaccurate.  It did not include appropriate or accurate details about his income.  The day before the trial, Mr Caison filed a further financial statement.  He did not rely upon it at the trial, but he was cross-examined about it.  It too, was inaccurate.  It misstated both the nature and the amount of his income.  He admitted as much in cross-examination.  Given the proximity of the trial to the date he swore the financial statement, I can only conclude that it was deliberately false.

6. Further, Mr Caison did not comply with orders for him to make disclosure that were made on 23 September 2018.  He admitted in cross-examination that he did not comply with those orders.  He could not provide an explanation for that failure. 

7. He repeatedly did not respond to requests for the provision of financial information by Ms Walbeck (through her lawyers) including the provision of income tax returns and bank statements.  It was necessary for Ms Walbeck to resort to the use of subpoenas to obtain those documents from various institutions.  It also emerged in cross-examination that Mr Caison has not lodged an income tax return since he lodged his last return for the end of the 2017 financial year.

8. Exhibit 1 in these proceedings is a bundle of documents the parties agreed to be tendered by consent.  Pages 12 to 27 of that bundle set out correspondence between Ms Walbeck’s solicitors and Mr Caison’s solicitors in which she requests particular information about Mr Caison’s financial position.  In February 2020, Mr Caison, for the first time, revealed a number of debts he claims are owing by the parties to various creditors for goods and services provided in respect of the parties’ business.  He also claimed that he had personal borrowings in excess of $100,000 that he had accumulated since separation.  Many of the debts are old and some pre-date the parties’ separation, however, there is no mention of them in Mr Caison’s initial financial statement or affidavit.

9. The correspondence in exhibit 1 evidences requests for copies of documents such as bank statements and the like and other information by way of explanation for various claims made by Mr Caison in respect of the debts.  Some of the correspondence points out that if proper information can be provided by Mr Caison, issues such as liabilities alleged to be outstanding by Mr Caison might be able to be resolved between the parties prior to the trial.  However, the documents were not provided in a timely way and most, not at all.  For example, he freely conceded that he had never provided any of his income tax returns or those of the entities associated with him to Ms Walbeck or her lawyers.  He could provide no explanation for his failure to do so. 

10. As I have already indicated, Ms Walbeck obtained copies of some of Mr Caison’s bank statements and the like on subpoena and was thereafter able to analyse them for the purposes of understanding his financial position.  That culminated in a letter from her solicitors to Mr Caison’s solicitors dated 13 May 2020.  It raised a number of issues.  That letter, and her other requests went without any substantive answer.

11. The nondisclosure in this case is significant because on Mr Caison’s evidence he receives cash, sometimes large sums of cash, from various sources.  The parties conducted a horse breeding and agistment business during their relationship.  Mr Caison, since separation, has continued to agist and breed horses both on the property that the parties occupied during the course of their relationship (which has now been sold) and on land that he has occupied since.  He has received some of the payments for that agistment in cash.  He has also received cash from a witness that he called in these proceedings, Ms L.  The amounts of cash he has received from Ms L and that he claims to have received from his sister are substantial.  He also gave evidence in cross-examination that presently he receives income in the form of prize money from a race horse that he has been campaigning.  There is no mention of that in either his affidavit of evidence in chief or in his most recent financial statement.

12. There are also other matters relating to Mr Caison’s non-disclosure that are relevant to particular issues that arise in this case.  I have recorded them later in these reasons where necessary.

13. I am satisfied, largely by the answers given by Mr Caison in cross-examination, that his failure to make proper disclosure of his financial circumstances was deliberate and calculated to cause as much difficulty and frustration to Ms Walbeck in these proceedings as he could.  I so find.

14. Counsel for Ms Walbeck submitted that Mr Caison’s non-disclosure in this case engaged the principles that emerge from Weir & Weir (1993) FLC 92-338 and Black & Kellner (1992) FLC 92-287. I am satisfied that those principles are engaged in this case and as a consequence.

15. Moreover, Mr Caison’s evidence demonstrated that he was a generally unreliable witness.  He admitted that his financial statements filed on 27 September 2018 and then the day before the hearing were both erroneous.  His affidavit of evidence in chief filed for the purposes of these proceedings was internally contradictory.  His cross-examination contradicted his evidence in chief further.  For example, in his affidavit of evidence in chief at paragraph 132 Mr Caison swears that “I have requested my accountant to prepare updated financial reports and tax returns for me and the entities but to date this has not been done”.  In cross-examination he agreed with Ms Walbeck’s counsel that he had not produced to her or her solicitors any income tax returns at all either for himself or any entities associated with him.  The last income tax return prepared for him or any of his entities was for the financial year ended 30 June, 2017.  Those tax returns are not in evidence.  When taxed about these matters, Mr Caison gave evidence that because he had sold a horse for “quite a bit of money” at the end of 2017 his accountant’s advice was to wait until B Pty Ltd (the parties’ property and business) was sold before he attended to his tax affairs.  Presumably there would be the offsetting of some losses against some gains although that was not explained in the evidence.  When tasked with the proposition that B Pty Ltd had been sold at the end of 2019 but yet his tax affairs had not been put in order, Mr Caison said that he had given instructions to his accountant to complete his tax affairs “recently”. When pressed on that matter, he said that “recently” was two weeks ago.  That is inconsistent with what he swears at paragraph 132 of his affidavit of evidence in chief which he swore on 6 May 2020.

16. However, perhaps the most glaring example of the inconsistencies between Mr Caison’s evidence in chief and his cross-examination was his evidence concerning his repayments of a mortgage following the parties’ separation.  A mortgage existed over the title to the property that was the parties’ former matrimonial home and which was occupied by Mr Caison following separation.  The mortgage repayments were $5,912 per month.  Mr Caison paid $7,300 on the mortgage on 17 September 2018 (about a month following separation) and then swears (at paragraph 75 of his affidavit of evidence in chief) that from that time on he did not have the means to make any further mortgage repayments.  He claims that he explained to the bank that the property was to be sold and the bank agreed to waive any penalties for non-payment of scheduled mortgage repayments.  Consistent with that evidence is a note completed by a bank officer dated 11 September 2018 (page 170 of Exhibit 1) which confirms that Mr Caison contacted the mortgagee to plead his case for financial assistance.  However, in cross-examination and when confronted with his own bank statements that Ms Walbeck had obtained on subpoena which demonstrated significant withdrawals from his account after September 2018 Mr Caison suggested that he had continued to make mortgage repayments and that the funds withdrawn were used for that purpose.  I reject his evidence about that and his explanation that it was “just a mistake”.  The evidence in cross-examination demonstrated a total of $35,400 withdrawn from Mr Caison’s personal account between 10 December 2018 and 1 October 2018.  Its whereabouts is not adequately explained.

17. I was left with the impression following Mr Caison’s cross-examination that he was prepared to say in answer to the questions put to him, just about anything that he perceived suited his purpose at that time.  It is difficult to sift his reliable evidence from that which is unreliable.  My impression was that he had no interest in helping the Court to ascertain the true position in relation to the parties’ relationship, their contributions or indeed his financial position at all.  Unless I have otherwise specified, I am not willing to accept Mr Caison’s evidence unless it has been reliably corroborated by other evidence.

18. However, I thought too, that Ms Walbeck was given to exaggeration in her evidence at times.  However, her evidence was generally consistent and in my view, reliable.

19. There is one further matter to mention before I consider the parties’ assets, liabilities and financial resources.  There is little detailed explanation about the way in which the parties set up and conducted their horse breeding and agistment business.  Doing the best that I can from the evidence, it seems that the parties purchased the land upon which the business was conducted, and the business using two separate corporate entities.  One, which held the real property, was the trustee of a superannuation trust set up for the parties.  They were both, and probably still are, directors and shareholders of the corporate trustee.  The business was conducted by another company, of which only Mr Caison was a director or shareholder.  It was a trustee for a trust.  The nature of that trust is not revealed by the evidence.  None of the corporate entities have been valued.  That is probably because the parties see the assets at their disposal as their own, untroubled by the existence of the seemingly elaborate scheme though which assets are held, no doubt for tax minimisation purposes.

Assets, liabilities and financial resources

1. I find that the parties have the following assets, liabilities and financial resources:

Assets:
Horses:
E	$15,000.00
F	$10,000.00
¾ share G	$60,000.00
H	$60,000.00
J	$80,000.00
½ share K	$5,000.00
Other:	Farm, Plant and Equipment	$70,400.00
C Pty Ltd as trustee for The B Pty Ltd Superannuation Fund	$1,004,775.02
Super Fund A (W)	$6,260.00
B Pty Ltd Pty Ltd as trustee for the B Pty Ltd Trust	$299,000.00
Motor Vehicle 1 (W)	$13,600.00
Contents (W)	$1,440.00
Motor Vehicle 2 (H)	$20,000.00	$1,645,475.02
Liabilities:
Owed and incurred during relationship:	M Group	$30,739.25
Region N Vet	$2,785.90
O Pty Ltd	$2,750.00
Loan owed to Finance Company for Motor Vehicle 2	$11,409.00
Ms L	$55,000.00	$102,684.15
Nett assets and liabilities:	$1,542,790.87
Owed and incurred after separation:	M Group	$3,232.00
Region N Vet	$4,862.10
P Farms	$25,303.70
Ms L	$22,000.00	$55,397.80

1. The parties are in dispute about the value of two of the horses set out above namely, the horse named G and the horse described as H.

2. During the course of these proceedings the parties were agreed that in the event that they were unable to agree on the value of the horses, they should be valued by Q Valuers (see the notation to the order made on 12 August 2019).  However, despite the parties’ agreement, Mr Caison decided not to have the horses valued by Q Valuers but instead insisted upon obtaining his own valuation from his own valuer.  Whilst it is true that a joint instruction was given to Q Valuers on 23 January 2020, Mr Caison subsequently ceased to provide instructions to the valuer and when further information was requested by the valuer to assist him in his task, he failed to provide that information (see the affidavit of Mr R filed 1 May 2020 paragraphs 5 – 8).  Ms Walbeck paid for her half of the valuation fee but Mr Caison did not.  He subsequently withdrew his instructions to Q Valuers on the basis that the valuer from that organisation, Mr R, did not have appropriate qualifications to perform the valuation.  Mr Caison’s stance led to me permitting the parties to each call their own valuer for the purposes of the equine valuation dispute.

1. Mr Caison called evidence from Mr S.  Mr S is a bloodstock agent and a member of the Federation of Bloodstock Agents Australia Limited.  He lives in Victoria.  He was approached by Mr Caison when he was in Queensland in early 2020 attending the O Pty Ltd horse sales.  Mr Caison asked him to provide a valuation for the horses owned by the parties in these proceedings.  He instructed him orally.  No written instructions were given to Mr S.  Mr S inspected the horses on 11 January 2020.  He provided a written report on 14 April, 2020.

2. Mr S does not explain in his report or the affidavit to which the report is annexed, what is entailed in his role as a bloodstock agent.  He swears that as a member of the Federation of Bloodstock Agents Australia Ltd he is bound by the code of ethics adopted by that organisation “and I am held to account via a complaints system”.  He says that he also abides by an “industry code of conduct”.  However, Mr S gives no evidence about his experience or expertise as either a bloodstock agent or a valuer.  The code of ethics and the industry code of conduct annexed to his affidavit do not provide a basis for any asserted expertise in valuing bloodstock other than recording that:

   There are currently 28 accredited members who are available to assist in the sale and purchase of Bloodstock as well as assisting in matters pertaining to bloodstock valuations, consultancy, management, matings advice, insurance, shipping, and other related matters.

   The Federation is the best point of contact for people requiring advice and guidance with their thoroughbred racing and breeding operations.  The minimum requirement to become a member is five years involvement in the industry and to use operation of own bloodstock agency.

3. Presumably the reference to “assisting in matters pertaining to bloodstock valuation” is a reference to the actual task of valuing bloodstock, but it is not at all clear.  Mr S gives no evidence about the nature of his agency and any particular experience that he might have in valuing thoroughbred horses.  In valuing the horses the subject of these proceedings, Mr S had reference to external information about each of the horses including their pedigree and the results of his own observations.  He consulted the Australian Studbook for pedigree purposes and another reference source.

4. Ms Walbeck relied upon evidence from Mr R, a Certified Practising Valuer.  He is employed by Q Valuers.  He exhibits to his affidavit a curriculum vitae.  It appears from his CV and his report that he holds a Bachelor of Business in Property (CQU) and a Graduate Diploma of Real Property and Auctioneering conferred on him in 2002.  He is an accredited Senior Appraiser of the American Society of Appraisers, a Certified Practising Valuer – Auctioneers and Valuers Association Australia and a Certified Practising Valuer (API) at AAPI, P & M.  It is apparent that he has extensive valuation experience.  He has worked as an auctioneer and valuer since 1989 and between 2012 and 2013 worked as a senior valuer in the Australian Valuation Office.  He has worked as a senior valuer since then for private organisations, including his current employer.  One of his areas of expertise is livestock valuation and in particular horses including thoroughbred and competition horses.

5. Mr R conducted an inspection of the horses in April, 2020 some three months after Mr S carried out his inspections.  His inspections were hampered by the need to keep a safe social distance because of the COVID-19 pandemic.  He records that hindrance in his report.  He too, consulted external reference sources to ascertain the bloodlines and pedigree of each of the horses.  Cross-examination revealed that he consulted the same sources as those consulted by Mr S.

6. Initially the value of five of the six animals currently owned by the parties or their interests was the subject of differences of opinion between the valuers.  However, in cross-examination Mr R accepted Mr S’s opinion in respect of two of them (E and F) and thereby, the dispute about their value was resolved.  The parties also came to terms about the value of the animal described in the material as the K horse.  The agreed values are reflected in the table above.

7. The value of two horses remains an issue – the value of a horse known as G and another referred to in the evidence as the K horse.

8. I prefer the evidence of Mr R about the value of these horses.  I am impressed by Mr R’s qualifications.  He has plainly been a valuer for a considerable period of time.  He has explained his methodology in his report and the basis upon which he has prepared his valuation (the instructions provided to him) are apparent.  I was also impressed by Mr R’s candour and willingness to accept the values placed upon two of the horses by Mr S.  That demonstrated that he truly was bringing an independent and impartial mind to the task at hand.  Whilst Mr S was quick to be critical of Mr R’s opinion, in my view, those criticisms carry little weight.  Mr R is plainly a trained valuer by dint of his formal qualifications and his lengthy valuation experience.   His qualifications were not challenged and his answers in cross-examination revealed a deep understanding of his task in this case.

9. I remain uncertain as to Mr S’s qualifications to provide the valuations that he purported to provide.  He may be a bloodstock agent, but as the code of ethics demonstrates, bloodstock agents might have different areas of expertise.  Neither Mr S’s opinion, nor his affidavit, demonstrates his area of expertise, if any.  Nor does it demonstrate the length of time with which he has been exercising that expertise, if any.  He does not set out the instructions that he received from Mr Caison or the basis of his valuation although it does seem tolerably clear that he has adopted a similar methodology to that adopted by Mr R. 

10. Overall, as I said earlier, I prefer the evidence of Mr R over that of Mr S.  Accordingly, I find that the value of the parties’ three-quarter interest in G is $60,000 (the horse herself being worth $80,000).  I find that the value of the K horse is $60,000.

11. One of the significant areas of dispute between these parties are certain liabilities that Mr Caison claims are due and owing by him and which he says ought to be taken into account in these proceedings to calculate the value of the parties’ net property.  Ms Walbeck argues that I should not be satisfied that the liabilities exist and, if I am, they should not be netted from the parties’ gross property – rather Mr Caison should be left responsible for them. 

12. I will deal each alleged debt separately.

    M Group

13. For present purposes, the M Group consists of three separate organisations, T Pty Ltd, U Pty Ltd and V Pty Ltd.  Mr Caison claims that he owes each of these entities particular debts.  The documents relied upon by Mr Caison to prove these debts refer to particular horses but it is difficult to understand how and when the debts were incurred because there is little explanation for them from either Mr Caison or the witness he called from M Group.  The best explanation comes from following through the detailed explanation given by Ms Walbeck in her affidavit material about the breeding histories for each of the horses owned by the parties during their relationship.  In that way, I have been able to satisfy myself about the relevant debts.

14. Mr Caison says that he owes T Pty Ltd $22,000 for a service fee by the horse W.  The invoice is dated 19 February 2018.  Ms Walbeck’s evidence demonstrates that W served the horse F (also referred to as F).  There is no evidence that a foal was produced.  However, a service fee has been raised and according to the evidence of the chief financial officer from the M Group, Mr X, a service fee is payable if a horse returns a positive pregnancy test 45 days after service.  Provided the fee is paid, in the event that the horse is not delivered of a foal suckling at foot 24 hours after birth, she may be returned to T Pty Ltd as a “free return” for a further service in the next breeding season, free of charge.  There was no challenge to Mr X’s evidence that the fee in respect of W was payable.  It was incurred before the parties’ separation.

15. There is also a service fee of $55,000 relating to the horse Y.  The parties’ horse J was served by the horse apparently in the 2017 breeding season.  Mr Caison says that T Pty Ltd have received $55,000 in payment of the outstanding service fee from his friend Ms L.  He says he prevailed upon her to pay the fee for him so that he could continue to deal with M Group.  I accept that a service fee was payable in respect of J.  I will return to the question of the payment of that service fee later when discussing the money said to be owed to Ms L.

16. Mr Caison asserts that he owes U Pty Ltd $8,739.25 for agistment fees.  The invoices demonstrate that the sum said to be owed relates to agistment, hospitalisation, transport, chiropractor fees, dentistry and farrier fees incurred from, 2017 until 2018.  According to Ms Walbeck’s evidence Z was covered by the horse AA in 2015.  The invoices in respect of this debt relate to “J/AA”.  I am satisfied that the amount claimed has been incurred by the parties and that it is still owed to U Pty Ltd. 

17. Mr Caison claims that he owes V Pty Ltd $3,232 for veterinary services.  The only document annexed to his affidavit is a statement which provides no detail for the expense.  The statement is dated 31 January 2020.  However whilst it records that the sum of $3,232 is “overdue”, it provides no particulars as to when that amount was incurred.  It seems likely, however, that it was incurred after the parties separated.  Mr X vouches that the debt is still due and owing.  I accept that there is such a debt owed by Mr Caison to V Pty Ltd but I find that it was incurred after separation.

    Region N Vet

18. Mr Caison claims that he owes Region N Veterinary Practice the sum of $7,648.  Initially the debt sworn to in his affidavit filed for the purposes of these proceedings was $8,536.30.  The document annexed to his affidavit about that is a statement of account as at 1 February 2020.  No particulars for the debt are given by Mr Caison in his evidence.  None are apparent from the statement of account either.  The affidavit of Dr BB, equine surgeon filed on 30 April, 2020 corroborates Mr Caison’s claim that Region N Veterinary Practice is owed $8,536.30 by Mr Caison.  Dr BB does not provide the invoices in respect of the claimed debt either – just the same statement of account as that provided by Mr Caison which is of little assistance.  The invoices are to be found in pages 28 – 40 of Exhibit 1.  It is apparent from Mr Caison’s cross-examination that those documents were provided by him to Ms Walbeck’s solicitors at some point shortly before the trial.  Inspection of those invoices reveals that some of the charges do not relate to horses owned by the parties but to others.  When Ms Walbeck’s counsel cross-examined Mr Caison about that matter, he said that he was aware that there were charges included in the statement for horses owned by a Mr CC and that he had told his solicitor about the error.  Notwithstanding that, when Mr Caison commenced his evidence in chief there was no attempt made to correct that evidence.  That tends to suggest that Mr Caison had indeed not told his solicitor about any error in the amount claimed in respect of this debt.  At best this demonstrates the relaxed nature with which Mr Caison has gone about his obligations to make appropriate disclosure of his financial situation in this case.  At worst, it represents a deliberate course of conduct on his part to misrepresent the situation to both Ms Walbeck and the Court.  I cannot decide whether it is the former or the latter.

19. The charges now agreed between the parties of $7,648 relate to horses owned by them during the course of their relationship.  The dates of the invoices demonstrate that most of the charges were incurred after the parties separated.  Doing the best that I can, it appears that only $2,785.90 was incurred in respect of horses owned by the parties and before they separated. 

    DD Vet Hospital

20. Mr Caison says that he owes the DD Vet Hospital at Town EE $5,485 for treatment the hospital provided for E in 2017.  He annexes to his affidavit what he says is “a true and correct copy of the account from the DD Vet Hospital dated 22 March 2019”.  However, all of the services set out in the statement, which is well particularised, relate to the 2019 year, not 2017.  No evidence was called by Mr Caison from a person able to give evidence about what was owed to the DD Vet Hospital, if anything.  I am not satisfied that the amount claimed is owing because I am not prepared to accept Mr Caison’s evidence that the debt is outstanding given that he swears it was for treatment provided in 2017 but the document clearly shows the contrary.  The absence of a witness to authenticate the debt is concerning.

    P Farms

21. Mr Caison alleges that he owes Mr FF, who operates a business by the name of P Farms, $25,303.70 for hay and feed for the horses and for other “farming supplies”.  Mr Caison purports to annexe to his affidavit “a true and correct copy of the invoice detailing the money I owe Mr FF as at 23 April 2020”.  However, what is annexed to Mr Caison’s affidavit is nothing more than a statement in the following terms:

    14.2.20     Statement 51          $22,443.70

    23.04.20   Statement 7            $2860

22. There are no particulars.  Mr Caison called evidence from Mr FF concerning this debt.  The debt was not challenged, but Mr FF’s evidence added no more particularity than that provided by Mr Caison’s evidence.  Given the date of the statements, it is likely that the debt has been incurred after the parties’ separation in August 2018 and I so find.

    GG Pty Ltd

23. Mr Caison claims that he owes an organisation called GG Pty Ltd $23,814.45 for “farm supplies”.  He has not particularised the farm supplies said to have been supplied to him.  The annexure upon which he relies to corroborate his evidence contains no detail about the amount owed, if any.  No evidence from any person on behalf of GG Pty Ltd was called to corroborate Mr Caison’s evidence and there was no explanation for that failure. 

24. Particulars do appear, however, in exhibit W–01 annexed to Ms Walbeck’s affidavit.  That includes a detailed list of charges from GG Pty Ltd to Mr Caison for at least some of the amount claimed.  It is apparent from that list that the amount claimed has been incurred since the parties’ separation. 

25. However, in the absence of any corroboration that the amount is still owed by Mr Caison to GG Pty Ltd, I am not satisfied that Mr Caison owes any amount to GG Pty Ltd.

    O Pty Ltd

26. In 2018 the horses HH and G were nominated for the O Pty Ltd auction to be held in early 2019.  The horses were nominated for sale pursuant to order 3 of Judge Coates of 18 September 2018 at Ms Walbeck’s insistence.  According to Mr Caison’s evidence neither horse “made the cut for the sale”.  Notwithstanding that they did not make the cut for the sale, the nomination fees, according to Mr Caison’s evidence, are still due and payable.

27. Mr Caison called evidence from Mr KK, the chief financial officer of O Pty Ltd.  His evidence confirms that $2,750 is owed by Mr Caison for auction entry fees incurred in 2018.  Mr KK was not challenged on his evidence.  There is no reason not to accept it.  The horses were nominated for the sales at Ms Walbeck’s insistence.  I accept that the parties owe $2,750 to O Pty Ltd.

    Ms LL

28. Mr Caison claims that his sister, Ms LL, lent him $15,000 on 2 July 2019 and a further $15,000 on 22 September 2019.  In his written evidence he says that the loans were made in cash and he used that money to reduce the debt on his car ($15,000).  In his oral evidence he said that he used more of it to pay off his car and his affidavit should probably have set that out.  This is another example of the general unreliability of Mr Caison’s evidence.   He says that he spent some of the remaining money towards “paying for things to make B Pty Ltd ready for sale including buying paint for painting the fence.”  He says that he also used the loan money to pay for electricity, rates, water and other expenses.  Initially in his cross-examination he said that he did not put any of that money in his bank account, but then recanted and said that he put all of the money he received from her that he had not paid off his motor vehicle loan into his bank account.  His evidence was confused and confusing.

29. Mr Caison gives no evidence about the terms of the loan or the circumstances in which he approached his sister for the advances.  He did not call evidence from his sister to corroborate the advances.  I am not satisfied that he borrowed any money from his sister or that he owes her $30,000 as he claims or any other amount.  I am not prepared to accept his evidence about these matters at face value without any corroboration.

30. Mr Caison purports to corroborate his evidence about the receipt of funds from his sister by pointing to repayments that he had made on his car loan.  However, I am not prepared to accept that lump sum repayments of his car loan are indicative of loans from his sister in circumstances where there are other unexplained cash receipts by him elsewhere in the evidence.

Ms L

1. Mr Caison claims that he owes his friend Ms L $55,000.  Ms L gave evidence that she paid $55,000 on Mr Caison’s behalf, in cash, to T Pty Ltd at Mr Caison’s request.  Mr X confirmed the payment from Ms L.  I accept that Ms L made the payment on behalf of Mr Caison to discharge the service fee that was owing in respect of the Y horse service.  The progeny of that service is one of the horses available for distribution between the parties in these proceedings.  Indeed it is the most valuable horse according to my findings set out above.  It is appropriate that the service fee be included in these proceedings.

2. Mr Caison also alleges that there is other money that he owes to Ms L.  He says that she lent him the following amounts:

   a)$5,000 on 17 January 2020;

   b)$2,500 on 31 January 2020;

   c)$5,000 on 10 February 2020;

   d)$3,000 on 26 February 2020;

   e)$5,000 on 13 March 2020.

   f)$1,500 on 30 March 2020.

3. Mr Caison’s very clear evidence was that he owed Ms L $77,000 in total.

4. Ms L gave evidence that confirmed Mr Caison’s claims about these advances.  Although Mr Caison lives with Ms L, they are not in a relationship and although he is not paying any at the moment, she expects him to pay board of $80 per week.  Mr Caison also has most of the horses agisted at Ms L’s property and she apparently is charging him $20 a day for each horse.  Mr Caison says that he has used about $9,000 of the money Ms L gave him to pay for training fees for the horse G.

5. I accept Ms L’s evidence.  Nothing emerged in cross-examination which would suggest that her evidence was unreliable.  She said that she did not know what Mr Caison did with the money she gave him but she was comfortable to lend him money as he needed it.  I accept that in total Ms L is owed $77,000 by Mr Caison.  Neither Mr Caison nor Ms L quantified the amounts said to be owed by him to her for board or agistment.

6. In the course of his cross-examination, counsel for Ms Walbeck put to Mr Caison that there had been a deposit to his bank account of $8,000 on 16 April 2020.  An explanation was called for given Mr Caison’s evidence that he was receiving no income since the sale of B Pty Ltd on 1 January 2020.  Mr Caison said that it was money paid to him by Ms L.  He suggested that it was money owed in addition to the $77,000 identified earlier but retracted that position when counsel reminded him of his earlier evidence.  Notwithstanding that, Mr Caison was adamant that it was money that was given to him by Ms L.  Counsel for Ms Walbeck cross-examined Ms L about this amount.  She was equally adamant that it was not money she had given to Mr Caison and the only amount she was owed was the $77,000 already identified.  This is yet another example of the unreliability of Mr Caison’s evidence and his proclivity to simply say things he thought might advance his case in answer to questions asked of him.  There is no explanation for the receipt of $8,000 by Mr Caison on 16 April 2020.

Conclusions – assets, liabilities and financial resources

1. The table above sets out my conclusions relating to the parties’ assets, liabilities and financial resources.  As to the debts claimed to be owed by Mr Caison, I have attempted to determine which of those debts, on the evidence, I am satisfied on the balance of probabilities are owed by him.  Of those that are owed by him, I have attempted to determine which relate to the period before the parties separated and which ought to be netted off against the parties’ gross property in accordance with the usual approach taken in cases of this nature.  The debts incurred by him post separation, however, should be borne solely by him for the reasons I have explained below arising from Mr Caison’s failure to properly disclose his financial circumstances and the confusion relating to his post separation income.

Contributions

1. In 2010 at the commencement of the parties’ relationship, Mr Caison moved into accommodation that was rented by Ms Walbeck on the Region MM.  At that time Ms Walbeck, I am satisfied, had about $150,000 in the bank.  Mr Caison had a bag of clothes and no money.  He told Ms Walbeck that he had no access to any money because his then wife had cancelled his bank cards which left him with no money.  I accept that he said that to her.

2. At the end of that year the parties decided to move to Town NN.  I am satisfied that Ms Walbeck paid for the parties’ day to day expenses, as well as bond, rent and household furniture and contents of their new accommodation.

3. The parties resided in Town NN for about a year.  I am satisfied that Ms Walbeck funded the parties’ living expenses in their entirety for that year and the next.  Mr Caison says that she met those expenses only for a couple of months but I prefer Ms Walbeck’s evidence to that of Mr Caison’s about this issue.  She also paid Mr Caison’s legal fees so that he could commence property settlement proceedings with his then wife.  This was a significant contribution on her part which assisted Mr Caison to settle his proceedings and obtain access to some of the property of his former relationship.

4. In 2011 (at some indeterminate point) Mr Caison received a lump sum of $200,000 by way of spousal maintenance.  He says that after receiving that payment he paid for “nearly all of the expenses of Ms Walbeck and me”.  I do not accept his evidence about that.  I prefer Ms Walbeck’s evidence.

5. While the parties were living in the Town NN unit, and after the receipt of his spousal maintenance payment, Mr Caison purchased the horse “E” for $27,000.  

6. Further, from his spousal maintenance payment, Mr Caison paid Ms Walbeck $35,000 to reimburse her for the money that she had given him for his legal fees.  He says it was also by way of “compensation” for having met his living expenses before he received the payment.  I do not accept that evidence, however, and prefer Ms Walbeck’s evidence that she met all of the parties living expenses for at least two years at the commencement of their relationship.  Ms Walbeck says that Mr Caison told her that he spent the rest of the payment on his legal fees.  I accept Ms Walbeck’s evidence that Mr Caison told her that he also spent approximately $60,000 of this money on setting up a “race car’’ to participate in the “Race” rally in 2011.  The parties were still living in Town NN when the vehicle was purchased.  The parties subsequently participated in the 2011 Race.

7. I accept Ms Walbeck’s evidence that prior to purchasing E the parties had engaged in discussion about purchasing a property together to breed horses.  I am satisfied that both Mr Caison and Ms Walbeck had been involved in and had pursued an interest in horses for most of their lives.  Ms Walbeck grew up around horses.  Mr Caison had commenced a breeding operation at the property he occupied with his former wife shortly before their separation.

8. Through some friends, the parties became aware of a property near Town OO in Queensland that would suit their horse breeding ambition.  They resolved to purchase the property and the agistment business that was being conducted thereon.

9. According to Ms Walbeck’s evidence Mr Caison’s property settlement was finalised in late 2011 or early 2012.  He says that it was in 2012.  The difference does not matter.  The parties agree that he received $1,300,000. 

10. With the funds soon to be liberated from Mr Caison’s property settlement, the parties set about purchasing the Town OO property.  They decided to call the property B Pty Ltd.  They took financial advice about how to set up and complete the purchase.  The parties established a self-managed superannuation fund known as the B Pty Ltd Superannuation Fund.  The trustee of the fund is C Pty Ltd.  Both parties are directors of the company.   Mr Caison is the secretary.  Mr Caison holds 100 ordinary shares in the company and Ms Walbeck holds ten. 

11. Both parties contributed to the superannuation fund.  At that time Ms Walbeck held about $22,000 in superannuation with Super Fund A.  In 2011 she rolled $20,000 of that entitlement into the parties’ self-managed fund, or at least that is what she intended to do.  There is a dispute about whether that money made its way into the superannuation fund.  No records are produced from the superannuation fund to demonstrate the position one way or the other and I am satisfied that I should accept Ms Walbeck’s evidence that it was paid into the fund.  She left the balance of $2,000 in her Super Fund A account.  Mr Caison paid $1,300,000 into the parties’ self-managed fund from his property settlement.

12. The real property was purchased by the trustee of the superannuation fund using the funds deposited by each of the parties to the self-managed superannuation fund.  The purchase price of the real property was $1,300,000.

13. The agistment business was purchased via a separate contract for $500,000.  B Pty Ltd Trust was established and B Pty Ltd Pty Ltd was installed as the trustee for the trust.  Mr Caison was the sole director, secretary and shareholder of the company.  Its function was to operate the horse agistment and breeding business which the parties intended to conduct. 

14. To complete the purchases, a loan was raised with the Commonwealth Bank of Australia for $840,000.  After taking into account the purchase price of the business and associated stamp duty which Mr Caison says was $64,650, the parties had about $275,000 left as capital.

15. Mr Caison argues that by reason of those matters he can confidently assert that he provided all of the capital for the purchase of the B Pty Ltd real property and business.  Aside from whatever amount Ms Walbeck contributed to the superannuation fund (which Mr Caison does not accept) he says she made no contribution to the purchase.  The borrowing arrangements with the Commonwealth Bank of Australia are not in evidence.  It is not clear who the borrower was and whether Mr Caison or Ms Walbeck carried any personal responsibility for those borrowings.  The point is important because if they were joint or joint and several borrowers or perhaps liable as guarantors for the indebtedness of the trustee of the superannuation fund, the legal position is that they will be taken to have each made a contribution to the purchase price of the assets: see Calverley v Green (1984) 155 CLR 242. However, as I say, the details of the borrowings are not before me and I can make no findings about that.

16. The parties took possession of the property and business in late 2011.  The purchase contracts were not then complete and Mr Caison’s property settlement was not then complete.  Nonetheless, the parties moved to B Pty Ltd and started work on commencing the business.

17. I accept that in those early days the parties discussed how they would run the business between them.  The discussions included plans for the property as well as how the business would be run on a day to day basis.  The parties talked about fencing, agistment yards, breeding and how they would generally manage the running of the business.  I accept Ms Walbeck’s evidence that the parties agreed that she would be primarily responsible for the books and accounts of the operation and she and Mr Caison would work with the horses.

18. The parties settled the purchase of B Pty Ltd and the business occurred in 2012.  The parties performed some improvements such as expanding the spelling yards, adding a stabling complex and re-fencing some paddocks. 

19. According to Ms Walbeck’s evidence, using the borrowed funds that have not been expended on purchase of the property or the business, the parties undertook the following work and improvements:

    a)15 new paddocks;

    b)huts;

    c)stables;

    d)tack room;

    e)4 wash bays;

    f)vet crush; and

    g)fencing.

20. The parties performed some of the work themselves, but the majority was undertaken by contractors.  Ms Walbeck gives detailed evidence of the work that she, Mr Caison and her son Mr PP performed.  I accept her evidence about the performance of that work.  It demonstrates her intimate involvement in the business that the parties were establishing.

21. Both parties worked hard.  I am satisfied that they both attended to the horses each day as well as completing maintenance and improvements to the property.

22. The property next door to B Pty Ltd is called Property QQ.  The parties established a commercial arrangement with the owner for Property QQ for the agistment of horses on behalf of Property QQ.  They completed more improvements to accommodate that business.  The arrangement was profitable and lasted for about five years.

23. However, in 2015 Property QQ was sold and the number of horses that the parties were asked to agist from that property dropped away dramatically.  The parties did their best to resurrect the business from Property QQ but their attempts were unsuccessful.  By mid-2016 the agistment business associated with B Pty Ltd was all but finished.

24. Initially, the business was successful.  The parties were grossing approximately $30,000 per month from their spelling and breeding business.  They had between 30 and 40 horses at any one time although it is not clear if that number included the horses from Property QQ or they were additional to that number.  The agistment of those horses was the primary source of income for the trust business.

25. The parties initially paid themselves a wage from the trust income.  For the first six months the wage was $500 each per week.  However, after about six months, the parties agreed that Ms Walbeck should no longer draw a wage so as to support the business cash flow.  The parties agreed that Mr Caison would continue to draw $500 per week by way of wages.  The parties envisaged that Mr Caison’s wage would cover their living expenses after taking into account that the business met many of their expenses.

26. By some point in 2012, the business had grown such that the parties could no longer manage on their own.  They needed assistance and for that purpose they employed backpackers to assist.  Mr Caison’s case is that Ms Walbeck did none of the work associated with the business as she claims and that he carried out all of the day to day work required in the running of the business with the assistance of employed helpers such as backpackers.  It should be apparent that I do not accept his evidence about those matters.  I prefer Ms Walbeck’s evidence about the nature and extent of the parties’ involvement in the daily business operations.

27. Mr Caison annexes to his affidavit two statutory declarations by backpackers that claim to have worked at B Pty Ltd.  Neither person was called to give evidence in these proceedings and neither was cross-examined.  Mr Caison swears that he was unable to obtain affidavits from either witness because they are “working on remote property so it is difficult for them to get to town to sign and send the affidavits”.  But that is not at all apparent from the statutory declarations.  One of the witnesses gives his address is RR Street, Town SS, New South Wales in his occupation as a labourer.  RR Street, Town SS is not a remote property.  The other witness signed her statutory declaration in front of a police officer in Town TT.  At the end of her statutory declaration, she invites the reader to contact her for further information using an email address.  Mr Caison says that he obtained the statutory declarations thinking that they would be sufficient for the trial.  The dates upon which the statutory declarations were signed suggests that Mr Caison had no difficulty contacting either witness and an affidavit might have been obtainable in the witnesses contactable for the purposes of cross-examination if their evidence would have added to Mr Caison’s case.  Although their statutory declarations were not the subject of objection from Ms Walbeck, I do not give the evidence contained in those declarations any weight.

28. Ms Walbeck describes in her affidavit the daily routine around the property.  Her evidence demonstrates that both she and Mr Caison participated in the work that was necessary although perhaps in different ways.  In cross-examination Ms Walbeck suggested that she did 80% of the work around the property.  Notwithstanding the otherwise benevolent view I have taken of her evidence, I think that evidence is a gross exaggeration.  Her estimate is inconsistent with her evidence in chief which paints a picture of a joint endeavour shared more or less equally between the parties.

29. I accept Ms Walbeck’s evidence that she undertook most of the cooking and household duties for the parties.  She was responsible for the gardening and general yard maintenance around the house.  She also organised renovations of the interior of the parties’ dwelling on B Pty Ltd.  She performed some of the work herself but mostly it was undertaken by contractors.

30. I am satisfied that the parties would regularly discuss the performance of the business and they would make decisions together about the business.  It was a joint endeavour.  I accept that Ms Walbeck attended to all of the paperwork for the business including wages, business activity statements, invoicing and record keeping with regard to the horses.

31. Notwithstanding the amount of work that was involved on the property, and somewhat inconsistently with Ms Walbeck’s primary position that she was intimately and equally involved in the running of the business, in 2014, she secured a part-time customer service position in City UU.  She would stay two nights per week with her daughter or a friend and work three days.  She says that her work in City UU allowed her an opportunity to spend more time with her grandchildren who lived there and gave her some financial independence because she was not receiving any income from the business.  It must follow that for those days that she was working in City UU, Ms Walbeck was not available to help out around B Pty Ltd and a greater burden fell to Mr Caison and those assisting him to perform any necessary work.  I am satisfied that she probably continued to attend to the paperwork and other recordkeeping for the business.

32. Ms Walbeck worked in Town UU for about fifteen months until the store she worked in closed permanently.  I accept her evidence that on average, she earned about $300 net per week and utilised that money for the payment of day to day expenses such as groceries and items for the house.  The business continued to pay for her other day to day expenses such as fuel, vehicle expenses and telephone.

33. The agistment and spelling of horses on B Pty Ltd was only one aspect of the business.  The other aspect was the breeding of thoroughbred horses.  Ms Walbeck’s evidence that satisfies me that she was intimately involved in this aspect of the business together with Mr Caison.  Ms Walbeck’s evidence about each of the current courses possessed by the parties, their breeding and their progeny histories demonstrates a level of involvement which is more than casual.  Her involvement is consistent with what she asserts to be an enduring interest in horses.  Mr Caison gave no such evidence although it is Ms Walbeck’s case that he was as equally involved with the breeding business as she was.  I accept her evidence that all breeding decisions were made together by the parties.  Ms Walbeck sets out in her evidence the matters the parties will take into account when making decisions about breeding.  Her evidence is convincing and compelling.

34. The parties separated in August 2018.  On 11 August 2018 Ms Walbeck moved from B Pty Ltd.  She moved in with a friend.  She took with her all of her personal belongings and most of the furniture and chattels in the home.  I accept her evidence that Mr Caison told her to take whatever it was that she wished to because “whatever is left after you are gone, will go to Lifeline or the dump”.  I accept her evidence that Mr Caison had already moved to separate accommodation on the property.  I also accept her evidence that any items of value that she took with her were valued for the purposes of these proceedings as the parties had agreed.  It was put to her in cross-examination that certain items of value were not made available for valuation for the purposes of these proceedings.  I accept Ms Walbeck’s evidence that she informed the valuer of those items but he took the view that they were worthless and did not include them in his valuation.

35. Mr Caison was left at the property with the business’s horses and control over the business.

36. Following separation, B Pty Ltd was listed for sale.  As I have discussed above, Mr Caison stopped paying the mortgage on the property.  The mortgagee wrote to him on 10 August 2018 confirming that there were arrears owing (across three accounts all secured by the mortgage) totalling $20,718.15.  At the time however, Mr Caison had access to at least $53,415.39 in his personal bank account.  It is not clear why he could not make mortgage repayments.

37. An offer to purchase the property was received by the parties in June 2019.  It was, however, being dealt with by Mr Caison and the flow of information between he and Ms Walbeck was via the parties’ solicitors.  It will be recalled that the real property was owned by C Pty Ltd as trustee for the Caison Superannuation Fund.

38. On 3 October 2019 the contract for the sale of B Pty Ltd was executed for a sale price of $1,700,000.  A copy of the contract of sale is not in evidence.  It seems that the sale settled in December 2019.  The sale price was apportioned between the real property and the business conducted on the real property such that two amounts were paid into the trust account of Mr Caison’s solicitors pending the outcome of these proceedings as follows:

    a)$299,000 being funds to which the owner of the business was entitled, presumably B Pty Ltd as trustee for the B Pty Ltd Trust; and

    b)$1,004,775.02 being funds to which the owner of the real property was entitled, presumably C Pty Ltd as trustee for the Caison Superannuation Fund.

39. Following separation, Ms Walbeck was unemployed for approximately 6 weeks. In October 2018 she gained employment in the customer service industry working on a part-time basis in Town UU.  He was earning about $350.00 per week.  She subsequently obtained work at Employer VV as a casual employee working on both week days and weekends.  In that employment she earned about $750.00 per week.  Since the Government response to the COVID- 19 pandemic, she has lost her employment and at the time of the trial she was unemployed.

40. She presently lives with a friend in Town UU, but before that she was able to live in her own rented accommodation until she lost her employment.  Ms Walbeck is uncertain as to how long she will be without work.

41. After B Pty Ltd was sold, Mr Caison moved to live with Ms L.  I have set out the circumstances of his cohabitation above.  He gave evidence that he is unemployed but looking for employment.  It seems that he has had some offers of employment which he intends to take up after these proceedings have concluded.  He has been offered one position although remarkably, he was unable to state with any certainty what the remuneration for that position would be.  He suggested it might be about $800 or $900 per week “or something like that”.

Conclusions – contributions

1. When the parties commenced their relationship, I am satisfied that Ms Walbeck had about $150,000 in a banking account.  Mr Caison had nothing more than a bag of clothes.  He was in the throes of a property adjustment case with his first wife which had not then resolved.  With Ms Walbeck’s assistance, he was able to realise his property adjustment entitlement.  She supported him with daily living expenses for at least the first two years of their relationship and funded some of his legal expenses.  Whilst he repaid her what it was that she gave to him, the provision of the financial assistance in the first place was no doubt of considerable assistance to him.

2. I accept Mr Caison’s submission that there can be no dispute that his contributions represented by the proceeds of his property adjustment application – $1,500,000 (less legal fees of about $100,000) in total considerably outweighed the value of the assets Ms Walbeck brought to the parties’ relationship.  That, however, has to be tempered against the facts that Mr Caison did not bring his property adjustment money (in full) to the parties’ relationship during the first two years of the relationship and he was supported by Ms Walbeck until it was received.

3. Nonetheless, Mr Caison’s contribution in this case is very significant.  Its significance is enhanced by the use made by the parties of his contribution, namely the purchase of a place in which the parties could live and a business that they could operate and improve to fund their existence.  But the weight to be attached to it must be assessed against the rubric of all of the contributions, both financial and non-financial, made by the parties over the course of their relationship.  It is not correct to approach the task at hand to look for a relationship between contributions and what they produced in terms of property. 

4. The relationship here was less than eight years in duration.   The parties have no children together and so no contributions as parents arise for consideration.  Nor was either party required to adopt the role of parent or primary carer for any children of the other party.

5. Aside from the contribution to its purchase made by Mr Caison, the parties worked the business together, each performing work for the other’s benefit.  I am not satisfied that either brought to the conduct of the business any particular skill or expertise.  Mr Caison contends that by reason of “the benefit of the knowledge of the respondent gained through many years of working in the industry” and which experience and knowledge he brought into the relationship, his contributions ought to be seen as greater than that of Ms Walbeck.  Mr Caison’s evidence does not satisfy me that even if he had been involved in the horseracing industry since the commencement of his working life that necessarily gave him relevant skills and experience in the horse breeding and agistment industry in which these parties wished to operate.

6. Following separation Ms Walbeck has had no involvement in the B Pty Ltd business.  The running of the business was left in Mr Caison’s hand.  I accept that he has undertaken some maintenance of B Pty Ltd and assisted in the clean-up and repair work necessary following two severe storms in October and December 2018. 

7. Mr Caison has had the benefit of the income from B Pty Ltd since the parties’ separation.  The difficult aspect of this case is that it is not at all clear what that income was.  That is because of Mr Caison’s failure to make proper disclosure about his financial position and the conflicted nature of his evidence about his income.  In his affidavit of evidence in chief, he swears that following separation his sole source of income was from horse breeding activities conducted on B Pty Ltd.  His affidavit was sworn on 6 May 2020.  It became apparent in the course of his cross-examination and from the evidence of Ms WW that Mr Caison had also been earning agistment income both before and after the sale of B Pty Ltd.  He gave evidence that his claim to have an average weekly income of nil in his initial financial statement filed on 27 September 2018 was incorrect.  According to his own evidence he probably had an income of about $100 per week.  It also emerged in cross-examination that he has been receiving prize money from one of the horses in his possession.  That does not appear in his affidavit of evidence in chief nor in his most recent financial statement.  He suggested that the income figure in his most recent financial statement (which was not relied upon by him for the purposes of the trial but upon which he was cross-examined) of $100 per week was based upon his earnings as at 30 June 2019.  It was not apparently, reflective of his income now.  There is also the matter of the unexplained $8,000 that appears in his bank account in April, 2020 and which he attributes to Ms L but which she disavows.

8. In my view, it is likely that Mr Caison has been deriving an income from B Pty Ltd.  I am not able to quantify that income.  But it is an income derived by using the assets represented by the real property and the plant equipment utilised by the business.  It is likely income in the nature of agistment fees and breeding thoroughbred horses and I so find.  Having taken the benefit of that income, it is appropriate that Mr Caison bear the expenses associated with producing that income which he has not disclosed and kept for himself. 

9. It was said in submissions that there will necessarily be expenses incurred in keeping thoroughbred horses and that incurring expenses for that purpose is unremarkable.  It was also submitted that I should infer that Mr Caison has been meeting some of those expenses.  But as the discussion above shows, some of the expenses in respect of which Mr Caison is now claiming are recent expenses incurred by him, for example, in the 2020 year.  These are not expenses which existed at the time of the parties’ separation and which remain unpaid (although there are some of that type).  As I have indicated above, those debts which I accept are due and owing and which were incurred in respect of goods or services provided to the parties’ business prior separation ought to be brought to account in these proceedings.  Those debts which are due and owing but which were incurred afterwards, ought to be borne by Mr Caison alone.

10. Given the findings I have made about the income he is likely to have received since separation, permitting Mr Caison to occupy and utilise B Pty Ltd for his own purposes following separation was a contribution by Ms Walbeck to Mr Caison’s welfare.

11. Mr Caison submits that almost the entire “property pool” is the direct result of his direct financial contributions.  He argues that the money presently in the two accounts in trust for the parties are the fruits of the purchase of B Pty Ltd and the agistment business.  He submits that in the premises of this case, an appropriate contribution based apportionment would be 82.5% of the nett pool (which includes all the debts that he claims) for Mr Caison and Ms Walbeck the balance of 17.5%.

12. For her part, Ms Walbeck argues that I should assess the parties’ contributions as 75% to Mr Caison and 25% to Ms Walbeck (exclusive of the debts that Mr Caison now claims are owed).  She argues that such an assessment is warranted in this case given Mr Caison’s non-disclosure and the Court is justified in taking a broad brush approach to the assessment of the available assets and the contributions that might have been made to the parties. 

13. In my view contributions ought to be assessed between these parties as 80% in favour of Mr Caison and 20% in favour of Ms Walbeck on the nett value of the property available for distribution between them as I have discussed above.  Mr Caison’s direct financial contributions significantly outweighed Ms Walbeck’s contributions direct financial contributions.  Mr Caison’s counsel suggested it was in the order of 90%/10%. I agree.  But it is the whole of the contributions made by each of the parties over the course of the relationship and then up to trial which need to be assessed.  Mr Caison’s approach significantly undervalues the contributions made by Ms Walbeck to the parties’ joint endeavour of horse agistment and horse breeding.  It also undervalues the contributions she made to the maintenance and improvement of the real property of B Pty Ltd.

14. On that basis, Mr Caison’s contribution based entitlement on the assets liabilities and financial resources I have described above is $1,234,232.70.  Ms Walbeck’s contribution based entitlement on the assets, liabilities and financial resources I have described above is $308,558.17.

Other matters

1. Ms Walbeck is currently aged 55 years.  Mr Caison is currently aged 54 years.

2. There is no medical evidence that suggests that either party has any particular health concern.  I am satisfied they are both in good health.

3. Ms Walbeck is presently out of work.  She relies upon government benefits for her support.  I have set out the details of that above.  I am satisfied that she has an earning capacity of about $750 gross per week.  That is what she was earning before she became employed before the outbreak of the current pandemic.  It was suggested in the course of submissions that her earnings from Employer VV were aberrant and she was more likely to have an earning capacity in the order of $350 per week.  I disagree.  The fact that she was earning $750 per week from Employer VV indicates that she has the capacity to earn that sum.  Whether work is available and when it might become available is a vexed question.  At present, however, she is employed.

4. Ms Walbeck suggests that she would like to commence her own horse breeding operations and that she might earn an income from that.  With the greatest of respect to Ms Walbeck, I consider that unlikely.  The experience about which she gives evidence in her affidavit of evidence in chief of involvement in the horse industry amounts to having an interest in horses, riding horses from time to time and associating with people who have either bred or trained horses.  Apart from her experience with Mr Caison, there is no evidence that she has any direct hands-on involvement in thoroughbred breeding.  That is not to say she did not gain knowledge during the course of the B Pty Ltd business.  I am sure that she did.  As I have indicated above, her evidence in chief contains such particularity and detail as to convince me that she had close and ongoing involvement in the business when it was being conducted by the parties.

5. Mr Caison claims that he is without income.  That is plainly not the case given his evidence in cross-examination about prize-money that he has been winning.  It is also likely that he is undertaking some other income earning activities by way of agistment and horse breeding.  When the parties conducted the B Pty Ltd business, it was returning $200,000 gross per annum when it was fully occupied by agisted horses.  It is not likely, however, that Mr Caison will return to earning that type of income without the assistance of significant capital with which to purchase appropriately developed land and the assistance of somebody like Ms Walbeck.  Mr Caison’s evidence is that he has been offered employment at Employer XX on the Region YY and might earn about $1,000 per week gross in that employment.  He seemed very confident that he would be able to take up a position with an organisation.

6. The disparity in the parties’ earning capacity weighs in favour of an adjustment of the parties’ contribution based entitlement in favour of Ms Walbeck.

7. Mr Caison will be left with the responsibility to meet the liabilities that he wished to have brought to account in these proceedings and which I have determined were incurred after the parties separated.  Those debts total nearly $55,400.  I take that into account.  This matter weighs against an adjustment of the parties’ contribution based entitlement in favour of Ms Walbeck and in favour of Mr Caison.

8. Ms Walbeck has no superannuation entitlements of any note ($6,000) as she rolled most of her superannuation into the parties self-managed superannuation fund as I have explained above.  Mr Caison will have access to his superannuation and will use it as he has done in the past so as to accommodate himself and generate an income.

9. Mr Caison argues that if there is to be any adjustment in favour of Ms Walbeck, it should be no more than 2.5%, which would represent a differential of $65,000.00 in her favour on Mr Caison’s assessment of the property pool.  Ms Walbeck argues for an adjustment of 10% in her favour.

10. In my view, an adjustment in Ms Walbeck’s favour is appropriate to take into account the disparity in earning capacity between the parties and to take account of the likelihood that Mr Caison has other assets and income at his disposal. This is a matter which I have taken into account under s.90SF(3)(r) of the Act. That adjustment should be 7.5% or approximately $115,000.

11. On that basis, Ms Walbeck is entitled to 27.5% of the pool as I have identified above or $424,267.49 (which I will round to $424,300) and Mr Caison the balance of about $1,118,500. 

12. Given the length of the relationship, and the parties’ respective contributions, in my view such an outcome does justice and equity between the parties.

Orders

1. The parties are in dispute as to how appropriate orders to reflect the Court’s assessment of their entitlements should be framed.  Ms Walbeck contends that there should be a superannuation splitting order, an order that she receives some of the cash and an order that she receive the Y horse worth $60,000.  She also seeks what was described in submissions as the service rights in respect of one of the horses.

2. Mr Caison contends that each party should each retain the assets of which they presently stand possessed and there should be a superannuation splitting order which returns to Ms Walbeck her entitlement.  He seeks orders that he retain all the horses.

3. It is appropriate that there be a superannuation splitting order.  But I do not think that it is appropriate that Ms Walbeck receives all of her entitlement in that form.  Both parties have a need for cash.  Providing Ms Walbeck her entitlement by way of a superannuation splitting order will not assist her in the short term.  Mr Caison is able to utilise his superannuation as the parties have done in the past through his self-managed super fund.  The amount of the superannuation splitting order that might be ordered in Ms Walbeck’s favour (even if all of her entitlement is given to her by that means) will be insufficient for her to utilise that same method to generate an income of any value.  In any event, she will not be able to access that income for the purposes of her living expenses in the way in which the parties were able to do in the past and which Mr Caison is likely to be able to do in the future. 

4. Mr Caison says that he should retain all of the horses.  Ms Walbeck says that she should retain the Y Horse.  In the end, I have determined that Mr Caison should retain all the horses.  In her affidavit of evidence in chief, Ms Walbeck suggests that she wishes to establish a horse breeding concern.  She accepts that she is not likely to be in a financial position to pursue that occupation full-time.  She also indicates that she would need property upon which to conduct that business and to keep horses.  Her evidence is couched in terms of possibilities in the event that she “receives sufficient funds” as a property settlement in cash or in superannuation entitlements. 

5. However, I think it far more likely that Mr Caison will be in a position to properly exploit the potential of the parties’ bloodstock and, for that reason, he should retain all of the horses.  Mr Caison will, of course, be able to purchase other horses should he wish to do so.

6. In those circumstances, it is appropriate to make an order that divides the cash to which B Pty Ltd Pty Ltd is entitled in the proportions of $160,000 to Ms Walbeck and $139,000 to Mr Caison.  I have settled on the sum of $160,000 because it represents roughly one third of the cash plus the value of the Y horse.  Whilst that will return more cash to Ms Walbeck than to Mr Caison, her need for cash reserves is greater than that of Mr Caison.  He will have a greater superannuation resource and the ability to use it in the way that it has been used in the past.  He will also have the bloodstock from which he can generate an income or realise capital through sale.

7. Taking into account that Ms Walbeck has her car, her contents and her own superannuation, and making allowance for the $160,000 cash payment, a superannuation splitting order of $243,000 will deliver to her entitlement of $424,300.

8. Finally, Ms Walbeck sought an order about the retention by her of a service stream for one of the parties’ horses.  There is no evidence before me about those matters and I decline to make any orders at all in that respect.

9. Accordingly, I make orders as set out at the commencement of these reasons.

I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 17 June 2020.

Associate: 

Date: 17 June 2020